1511084 (Refugee)

[2018] AATA 882

1511084 (Refugee) [2018] AATA 882 (6 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511084

COUNTRY OF REFERENCE:                  Malawi

MEMBER:Jane Marquard

DATE:6 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 06 March 2018 at 12:02pm

CATCHWORDS
Refugee – Protection Visa – Malawi – Particular social group – People living with HIV – Availability of HIV treatment in Malawi – Country information suggests treatment is available – Whether stigma exists against people living with HIV – Stigma exists but not at a level amounting to serious harm and is reducing – Returnees from the west – Harm feared suffered by society generally - Imputed political opinion - Members of the Yao tribe – Support of opposition party – Limited evidence of persecution on basis of imputed political opinion – Ministerial intervention – Matter referred to Minister

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 417(1), 499
Migration Regulations 1994, Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

1. The applicants are a husband and wife from Malawi, and their two children.

2. The applicants first arrived in Australia [in] January 2013 on a [temporary] visa.

3. They applied for protection visas under s.65 of the Migration Act 1958 (the Act) [in] July 2014. Following lodgement of the applications, the first and second-named applicants were diagnosed as HIV positive.

4. A delegate of the Minister for Immigration and Border Protection (the Minister) refused to grant the visas [in] July 2015.

5. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

6. In summary the first and second-named applicants claim that they will suffer serious harm or significant harm based on their membership of social groups of people living with HIV, and that their children will suffer persecution as children affected by HIV, or as orphans. They also claim to fear persecution for political reasons, exacerbated by their Yao ethnicity, and as victims of crime and poverty.

   Evidence to the Department

7. The applicants provided evidence to the Department of Immigration and Border Protection (the Department) in their application forms, supporting documents, legal submissions, and at interview. A summary of the evidence to the Department is below:

   ·The first-named applicant was born in Lilongwe in [a particular year] and spent most parts of his childhood in his mother’s village, [Village 1]. He is from the Yao tribe. Although the Yao are predominantly Muslim, he is a Christian. He has varied work experience as [various occupations];

   ·The second-named applicant was born in [City 1]. She is from a minority tribe comprising the Ngoni and Yao.  In 1992 she lived in Blantyre, then moved to Lilongwe for [school]. In 1999 she moved to [City 1] and then in 2002 she moved back to Blantyre where she attended [a university] and studied [a particular course] from 2006 until 2007, and then [at another university] from 2008 until 2009. Her parents are deceased but she does have siblings in Malawi;

   ·The first and second-named applicant met in Blantyre and were married [in] 2007;

   ·Prior to coming to Australia the first-named applicant travelled to [various other countries], [for a particular activity]. He has also travelled to [various countries] to participate in conferences and career workshops;

   ·[In] December 2012 the first-named applicant was granted a [temporary] visa and the family arrived in Australia [in] January 2013;

   ·In the Department application, the second-named applicant stated that they left Malawi as her husband was awarded [a scholarship]. She was compelled to leave and join him so that she and her children would have a new experience free from political instability and ‘enslaving economic conditions’. She said that due to poverty and enslaving economic conditions, she had on several occasions experienced robbery at her house. The public have taken the law into their own hands. There are deep political divisions in the country, resulting in clashes between both sides, resulting in death and injury, made worse by elections. She said that the psychological distress brought about by these factors is not conducive to raise a family and causes harm to their mental health as well as to her personally. She feared that she would be specifically targeted due to having lived in Australia, because of perceptions that they are wealthy. She fears being a victim of violence as a returnee from the West;

   ·The applicants also fear that the applicant’s past employment in a government department under the Banda government will render them as targets of politically motivated harm, because of political circumstances which have arisen since their departure. They are not members of a political party; however, they are imputed with political opinions because they are members of the Yao tribe. Intertribal conflict between the Yao and Lomwe tribes intensified in 2014 following elections which saw the election of Mutharika and the Democratic Progressive Party, predominantly made up of people from the Lomwe tribe;

   ·The first-named applicant fears being expelled from his government job as Mutharika is nepotistic and favours the Lomwe;

   ·The first and second-named applicants also fear returning because the first and second applicants have been diagnosed as HIV positive. Access to treatment in Malawi is limited, and the quality of treatment is substandard. The first-named applicant is receiving treatment which is only available in Western countries and may only be available to the very wealthy in Malawi. They have not told their families of their status. Extended families would not care for their children, due to stigma. They fear psychological and physical harm. They fear having to live in extreme poverty and becoming homeless;

   ·The third and fourth-named applicants fear that they will be severely stigmatised due to their parents’ HIV status. They fear that their parents will die and they will become orphans. The children would have to work. They are at risk of getting HIV. They also would not be protected and there is sexual exploitation of girls in Malawi;

   ·There is no social security in Malawi; and

   ·If they could not subsist in Lilongwe, they would live in either [Village 2], where the first-named applicant’s mother lives, or [Village 3], where the first-named applicant’s father lives. For cultural reasons it would be unfeasible for them to relocate anywhere else. In these villages, they would face undue hardship and suffering. The closest town to either village is [distance] away. The first-named applicant has been told by his doctor that it is imperative he check his CD4 count and his viral load every day. The small villages are unlikely to have proper facilities. The applicants have siblings, but they are unemployed or have menial jobs, so could not support them.

8. The following documents were on the Department file:

   ·A copy of an email from [an official of the] Australian Embassy, Harare, stating that the Embassy could confirm that there had been no approaches made by Malawian officials about the first-named applicant; and

   ·A letter dated [in] February 2015 from [Dr A], a Sexual Health Physician at [Hospital 1], stating that the first and second-named applicants had been outpatients there since September 2014. The first-named applicant was being treated with the antiretroviral, [Drug 1]. The second-named applicant had been advised to begin treatment but had not done so. They had both remained well, with no complications. The doctor stated that HIV positive patients can change treatments, which is not necessarily deleterious. However it is important to keep up treatment so that the HIV viral load is fully suppressed. She said that she could not determine if the applicants would require hospitalisation at some stage, or develop HIV associated neurocognitive disorder (HAND). She stated that adherence to medication, and regular engagement in HIV medical care, would reduce the risk of hospitalisation or HAND. Access to good nutrition and sanitation is also important. She said that experiencing stigma and discrimination would likely have a deleterious effect on emotional well-being.

   Decision of the delegate of the Department

9. The delegate was not satisfied that the first-named applicant would not be able to obtain employment in Malawi, notwithstanding his HIV status or tribal background. The delegate was satisfied that the applicants could obtain treatment in Malawi. The delegate was not satisfied that the applicants met the refugee or complementary protection criteria.

   Evidence before the Tribunal

10. The applicants appeared before the Tribunal on 13 October 2017 to give evidence and present arguments. The following evidence was given to the Tribunal in written submissions and at interview:

    ·The first-named applicant was born in [a particular year] and grew up in his mother’s village, [Village 1]. His father was [occupation], doing [work] for the local government. His mother was [occupation] in Lilongwe. He has [a number of siblings]. [Details of siblings]. He has many relatives in Malawi including aunts, uncles, cousins, nieces and nephews;

    ·His parents have passed away;

    ·He is from the Yao tribe and Christian. The official Yao association looks after the Yao people. In Malawi people strongly identify with the tribe, beyond anything else. The association promotes their own culture, language and way of life. This does impact on employment, business and personal relationships;

    ·He attended primary school in a town near Lilongwe and then in [Village 1] from grade one to seven. He went to his father’s village for part of grade 8. He went to high school in Lilongwe. His parents had facilitated a job in the private sector and he worked there in [a particular company] for three years. Then his father passed away. His mother remained in Lilongwe, but was looked after by her siblings there until she died;

    ·After finishing school, he studied [a particular course] at university. He qualified with a [degree]. Then he worked in the private sector with [a company] for about two and a half years, and then in a not-for-profit organisation working in [a particular area]. Before he left Malawi, he worked for the [government]. He worked for six years in Lilongwe, which he regarded as ‘mostly’ his home. He rented a house there. In the village the land was communal and administered by elders;

    ·He travelled to Australia for academic pursuits. He wanted to study [a particular course]. Asked why he left a good job to come to Australia for study, he said that he felt the need to pursue academic goals;

    ·His wife’s family is from [City 1]. He met her in Blantyre, where she was studying. Her parents had passed away by the time they met, and she was living with her uncle. She has [siblings] still living in Lilongwe;

    ·They were married in 2007 in Blantyre. At the time he was working at the not-for-profit organisation. Both their families attended the wedding;

    ·He travelled to other countries [to] [undertake a particular activity] as a university student, and for [particular work activities] on behalf of the [not-for-profit];

    ·The applicants travelled to Australia in 2013. He funded his trip to Australia with the support of [the grantor of the scholarship]. From January 2013 to July 2014 he studied [a particular course] and completed his degree;

    ·The most recent medical certificate dated [in] February 2015 stated that he was taking [Drug 1]. However he was not taking [Drug 1] anymore, as it was [producing a negative side effect]. He is now on [Drug 2], one of the latest treatments, and doctors do not know yet what the side effects are for this treatment, so he is being monitored. He has been on the treatment for one year;

    ·The second-named applicant had not commenced treatment in February 2015, but she has now. She is on the same drug, [Drug 2];

    ·Both applicants have remained well besides the side effects of treatment, as stated in the letter from their doctor;

    ·They have not disclosed their HIV status to anyone in Australia or Malawi, except their representative, their doctors and the Tribunal. This is because of fear of repercussions. HIV/AIDS is associated with social stigma and humiliation in Malawi, and they fear not being able to access services. In Australia he also fears stigma. They are members of a group of friends from Australia and Africa. They are receiving adequate support from medical practitioners, and social workers in Australia, who visit them at home. They do not want to share their status with anyone else. They have not told their families as no members of their families have HIV, so they do not want them to react. They also do not know if their families will support them, and fear discrimination. Through the family, the whole society will know what has happened to them, and this will impact on them not receiving services, and also on how their children will survive in a society where HIV is viewed negatively. They do not want other children not to associate with their children because of stigma. This places pressure on them in terms of telling the children. The first-named applicant was asked if some members of his very large family would be able to support them emotionally. He said that there is no precedent about this in his family. He said they might support him, but he cannot guarantee human emotions. Asked if his family were more open minded as they were an urban family and some were educated, he said that he is the most educated member of his family. His family are still influenced by culture, even if they have a close family unit. The psychological support may manifest on disclosure, but the reaction may be influenced by how society reacts to people with HIV;

    ·Asked if he would have colleagues or friends who might give emotional support, he said that people often do not disclose their condition. Sometimes he would know when he visited a friend, and see that this friend was getting sick, that he or she was HIV positive. He said that he has never had a friend who disclosed the condition to him. He said if someone had told him when he was at university, he would have been shocked, and would have wondered how they became HIV positive. But because of his education and [work], he would have sympathised with them.

11. The second-named applicant provided the following evidence in written submissions and at hearing:

    ·     She was born in [City 1] in southern Malawi. She grew up in an extended family with her [grandmother] looking after her. She attended primary school in [City 1] and Blantyre, and high school in [City 1]. Her parents passed away in [details of parents’ passing]. She never knew her father. Her grandmother and uncle took care of her after that. She has [siblings];

    ·     Her grandmother, her uncle and his sons are still alive. They live in Blantyre, except for her grandmother who is in the village. One of her [siblings] [works] in Lilongwe, and her other [sibling] is [occupation] in Lilongwe. She is in contact with them, as she feels like a mother to them;

    ·     She is from a minority tribe comprising the Ngoni and Yao.  In 1992 she lived in Blantyre, then went to Lilongwe for [school]. In 1999 she moved to [City 1] and then she moved back to Blantyre where she attended [a university], studying [a particular course] from 2006 until 2007. She then studied at  [another university] from 2008 until 2009;

    ·     She said people in Malawi expect her and her husband to support them, as they are living in a western country, which is difficult for them;

    ·     She studied [a particular course] at [university]. She then worked in [a particular field]. She later left work when she became pregnant;

    ·     They were financially comfortable in Malawi and they thought that they would return after their visit to Australia. Before they left for Australia, her husband was working in a government institution, and did not want to be the spokesperson for the government through this position. This was why when he got the chance to apply to study in Australia, it was good for him, but the government institution made it difficult for him to leave;

    ·     She was the primary applicant when they first applied for a protection visa. This was because she knew what would happen to her husband if he returned. She was concerned that if they returned, the government institution would make life difficult for him. A friend in Malawi who worked in a government sector sent correspondence through to demonstrate this;

    ·     She said that when they first applied for a protection visa, they did not have a representative. She thought that she could express herself in an interview and for this reason she did not express herself well in her written application;

    ·     She was asked if she still fears returning to Malawi because of crime, as suggested in her application. She said that Malawi is a small country with a large population. Everything is done through connections, and she was very fearful as she was the victim of robbery after her husband had left the country. Her [sibling] had also been robbed. She fears that she would be robbed, or a victim of violence as they were returning from an overseas country;

    ·     She has not told anyone in Australia or Malawi about their HIV status. She said that she has attended a cultural association where people are HIV positive. The attendees are not their friends so she can speak about their status there. She said that she has found it hard living in Australia for four years, and having children. She does not feel that she can share or confide with people. It has been a challenge to accept her status. She had to have her children tested. It has been psychologically difficult. She said there have been so many uncertainties in their visa situation, and they have just had to live one day at a time. They have not processed their status properly, and they do not know what will happen next; and

    ·     Her son is [age] and her daughter is [age]. Her daughter had [a medical treatment], but is well now. They are both in school.

12. After the Tribunal hearing the applicants provided a further medical report from [Dr A], sexual health physician at [Hospital 1], dated [in] October 2017. The report stated that the applicants had continued to regularly attend [the] Outpatient Clinic for HIV Management. They had seen several physicians, and the report was based on medical records compiled by these physicians. The first-named applicant was last seen in August 2017 and continues taking antiretroviral medication, currently [Drug 2]. His treatment had changed from [Drug 1] in May 2015 to avoid [Drug 3] as he had a [negative side effect], which can be exacerbated by [Drug 3]. He is tolerating his new medicine well and his HIV viral load has been suppressed since January 2015, his CD4 T-cell counts/percentages have improved and stabilised since his low CD4 nadir. In June 2017 a [consultant] expressed the opinion that he had [a particular medical condition], which was stable. He had low mood and social stressors, financial and domestic, and his general practitioner had arranged psychological assessment. The doctor stated that since her first report, the first-named applicant’s HIV viral control and immunological function had improved, but he had a [negative side effect], although it is now stable. She said that it will require monitoring. His prognosis remains favourable dependent on [a particular medical factor] and adherence to antiretroviral medication.

1. [Dr A] reported that the second-named applicant last attended the clinic in July 2017. She commenced antiretroviral therapy with [Drug 4] in 2015 but developed resistance to [a particular component of Drug 4], and was advised in December 2015 to change to a [different course of treatment]. In January 2016 she commenced once daily [Drug 2] and has had excellent adherence and no adverse effects. Her HIV viral load has been suppressed since January 2016 and CD4 T-cell counts have been high normal range and stable with other parameters in normal range, such as kidney and liver. Her prognosis remains positive, dependent on adherence to antiretroviral medication. The doctor stated that an essential component of successful HIV management is antiretroviral adherence, to ensure continuous HIV viral suppression and minimise the risk of developing resistance and HIV-related complications.

2. [Dr A] could not determine if the applicants would require hospitalisation in the future, nor if they would develop HIV associated neurocognitive disorder (HAND), which can occur in any HIV positive person. She stated that continued engagement in medical care and adherence to HIV treatment is beneficial in reducing the risk. She had no information about circumstances in Malawi. However she said that good nutrition, sanitation, access to health care and psychological wellbeing are essential for good health.

3. In written submissions dated 26 October 2017 the applicants provided further submissions in relation to children affected by HIV and orphans in Malawi. The representative also noted that the first-named applicant could not find the email from [Hospital 2] regarding treatment availability in Malawi. He had however spoken to a representative from the manufacturer who had confirmed that the company did not export their product. The representative confirmed that there were conflicting reports as to the availability of [Drug 2] or an alternative in Malawi. She submitted that there was a real risk of degrading treatment or punishment as a result of their condition.

4. The applicants provided to the Tribunal a copy of a writ and Statement of Claim served by [a particular government body of Malawi] as plaintiff, on the first-named applicant. The service date was [in] 2015. The writ required the applicant to satisfy the Claim within [a certain period of time], or file a defence. The writ stated that if these actions were not taken, the plaintiff could proceed with action and judgment could be entered against the applicant. The Statement of Claim related to his breach of contract of employment. It stated that the applicant was employed by the plaintiff [in] 2009 [in a particular position]. It stated that [he] was offered a scholarship by [a particular body] in collaboration with the government of Malawi and the plaintiff, to study for a [degree], and he left in January 2013 for 18 months. While on studies he was paid a [salary]. He completed his studies in July 2014. It was an express term of the agreement between the Malawi government, the applicant and plaintiff that he return upon completion and continue in the service of the government for a period of not less than [a number of years], or pay damages and return [certain goods] provided.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. In coming to a decision, the Tribunal has taken into account evidence in the Department file, as well as before this Tribunal, and independent country information about Malawi.

6. A summary of the relevant law is set out in Attachment A.

7. The mere fact that a person claims fear of persecution for a particular 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, 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 sufficient 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: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[1]  

   [1] MIEA v Guo (1997) 191 CLR 559, 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155, 169-70

8. An assessment of the claims and evidence is set out below.

   Nationality

9. The applicants provided copies of their passports and gave evidence that they were citizens of Malawi. It was clear that they were familiar with the culture, history and geography of Malawi, and the Tribunal accepts on the evidence before it that they are citizens of Malawi, and that Malawi is the receiving country for the purposes of the complementary protection provisions.

   Refugee criteria: The applicants must have a well-founded fear of persecution

10. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, 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. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. The Tribunal is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. In this case, the Tribunal notes that the applicants’ HIV positive status has caused them significant anxiety.  All this is taken into account in these findings.

11. An applicant’s fear of persecution under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention), for a Convention reason, must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason.

12. 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%. A real chance in the context of refugee assessment has been described by the High Court as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50% chance.[2]

    [2] Chan v MIEA (1989) 169 CLR 379

13. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Claims made on the basis of being HIV positive

    First and second-named applicants

14. The first and second-named applicants claim that they will suffer persecution based on their membership of the particular social group, ‘people living with HIV’ or a similar group.

15. The first and second-named applicants claim, in summary, that they and their family will be placed at risk of persecution by the state, community and family. They claim that because of stigma and discrimination they will be unable to access HIV treatment. They claim that because of low capabilities for testing, because of stigma and discrimination, they could not monitor their condition. Stigma and discrimination, along with poor health would lead to unemployment and an inability to subsist and support their children. They also claim that they face unemployment, challenges with housing and denial of access to health care and dental services due to their HIV positive status. They would therefore be unable to subsist.

16. They claim that they will be physically and emotionally threatened and abused as a result of being HIV positive. They claim that they will be excluded from social gatherings, community and religious activities resulting in psychological isolation and lack of support network. They claim that severe social ostracism may result in suicide.

    HIV status

17. The Tribunal accepts on the basis of medical reports provided that the first and second-named applicants are HIV positive.

    Availability of treatment in Malawi

18. The Tribunal has first considered whether the applicants will be able to access appropriate treatment and monitoring services in Malawi. The applicants’ claim that the drugs they are using in Australia would not be available in Malawi, and/or that they would be unable to access the drugs because of discrimination and stigma. In their submission, the applicants quoted the not-for-profit organisation, Avert, as reporting that despite government and international donors making commendable efforts to increase access to treatment, factors such as the scale of the epidemic, and the shortage of human and financial resources, have hindered progress. They also claim that access is limited in rural areas. The applicants quote a 2011 report which suggests that due to a time limit of about six months between ordering anti-retrovirals (ART), and their delivery, some health facilities have experienced drug stock outs, leading to rationing. Another 2012 report suggests that medical facilities in Malawi are rudimentary and do not meet US standards of medical care (US Bureau of Consular Affairs). The applicants claim that they need specific treatment as the first drug used by the first-named applicant in Australia [produced a negative side effect], and the second-named applicant also experienced some resistance to the drugs.

19. They also claim that there are low capabilities for CD4 and viral load testing in Malawi and as a result their health will worsen. Of particular concern to them was that if they had to live in rural areas in order to obtain support of their family, they would not have adequate access. They claimed that if they could not subsist in Lilongwe, they would live in either [Village 2], or [Village 3]. They claimed that for cultural reasons it would be unfeasible for them to relocate anywhere else. They stated that in these villages, they would face undue hardship and suffering. The closest town to either village is [a distance] away. The first-named applicant has been told by his doctor that it is imperative he check his CD4 count and his viral load every day. He said that these small villages are unlikely to have proper facilities. The applicants claim that they have siblings, but they are unemployed or have menial jobs, so could not support them. The second-named applicant stated that she asked her [sibling] in Malawi if there is a place where you can do a CD4 count. Her [sibling] said that the only one place where they can do the full count is the university in Lilongwe. When asked if she had told her [sibling] that they were HIV positive (as the applicants had told the Tribunal that they had not told their family), she said that she asked her for this information, but she had not told her [sibling] why she needed the information.

20. Notwithstanding problems with resources and a stretched medical system, numerous sources suggests that a variety of ART treatment is now widely available in Malawi and that a vast majority of people who are HIV positive are accessing treatment and monitoring services.

21. Malawi has actively responded to HIV since 1985, when the first case was reported. In 1988 it created the National AIDS Control Program. In 2001 the Malawi National Aids Commission (National Aids Commission) was created to oversee prevention and care initiatives. A national policy was developed in 2003, laying down guiding principles for all national HIV and AIDS programs.[3]

    [3] MANET+ and others, Positive Health, Dignity and Prevention in Malawi, findings and recommendations from Studies Led by People living with HIV,

22. The not-for-profit organisation Avert provides up-to-date information on HIV and AIDS. It states that, in regard to Malawi:

    Malawi’s HIV prevalence is one of the highest in the world, with 10.6% of the adult population (aged 15-64) living with HIV. Malawi accounts for 4% of the total number of people living with HIV in sub-Saharan Africa. An estimated 980,000 Malawians were living with HIV in 2015 and 27,000 Malawians died from HIV-related illnesses in the same year. The Malawian HIV epidemic plays a critical role in the country’s low life expectancy of just 57 years for men and 60 years for women.[4] (Footnotes omitted.)

    [4] Avert website,

23. A recent article in Reuters stated that the USA would concentrate its AIDS funding on the countries that were close to controlling the epidemics, including Malawi.[5]

    [5] Reuters, ‘US Aids Strategy to focus on 13 countries close to controlling the epidemic’, 19 September 2017

24. Recently, the United Nations congratulated Malawi for its effort to fight against HIV/AIDS:

    The congratulatory sentiments have come from United Nations General Secretary Antonio Guterres during a meeting with President Peter Mutharika at UN Headquarters Building in New York City. According to a statement issued from office of UN spokesperson, Guterres congratulated Malawi for “achieving fantastic progress in the area of HIV/AIDS.”

    According to the statement, the United Nations Secretary General welcomed Malawi’s response to HIV/AIDS and encouraged further progress.[6]

    [6] Malenga, B, Malawi, ‘Malawi wins fight against AIDS’, 24 September 2017

25. The US-based Centre for Disease Control and Prevention states that: ‘Malawi is known as having one of the most innovative and efficient HIV programs in the world’. [7]

    [7] Centre for Disease Control and Preventions, CDCP in Malawi, November 2013, - accessed 12 October 2017

26. According to the Avert website, 68% of adults were on ART in 2016, an increase of 18% from 2013. Importantly, the website states that of those aware that they were living with HIV, 89% were on ART and 89% being virally suppressed. The website states that impressive efforts had been made to reduce the HIV epidemic at national and local levels, with ART rollout significantly expanding. As a result of this, AIDS-related deaths had decreased by almost two-thirds between 2004 and 2016.[8]

    [8] Avert website, - accessed 2 January 2018

27. The website also reports that the 2013 World Health Organization (WHO) guidelines on HIV treatment have been encompassed into the Malawian treatment, care and support plans, with new CD4 count thresholds for ART initiation. This has meant that more people living with HIV are eligible for ART. To cope with this, there is now greater access to treatment services at a local level, with many ART sites becoming decentralised to primary care facilities. The report states that the number of static ART sites increased significantly from 300 sites in 2011 to 706 in 2014. The website states that a further important element of the ART program in Malawi is ensuring effective follow-up procedures. As of September 2014, 78% of people living with HIV who had been initiated on ART were still on it after 12 months. Furthermore, it is reported that in its 2015-2020 HIV strategy, the National Aids Commission states that Malawi will aim to meet Joint United Nations Programme on HIV/AIDS’ (UNAIDS) 90-90-90 treatment targets, with the aim of controlling its HIV epidemic by 2030. By the end of 2020, the National Aids Commission has committed to:

    ·Diagnosing 90% of all people living with HIV

    ·Starting and retaining 90% of those diagnosed on ART

    ·Achieve viral suppression for 90% of patients on ART[9]

    [9] Avert website, - accessed 2 January 2018

28. In an article in the Guardian in 2013, reference is made to availability of first, second and third line drugs. The article suggests that Malawi had slashed its death and infection rates, through dispensing antiretroviral drugs and monitoring effectiveness.[10]

    [10] The Guardian, ‘Malawi’s success story in reducing HIV infection’, 29 November 2013,

29. An article in Al Jazeera also refers to the improvements in overcoming HIV/AIDs in Malawi:

    Since its first diagnosis in 1985, Malawi has come a long way in the struggle to overcome HIV/Aids. At least 10 percent of the country's population has HIV. In 2013, some 48,000 people in this country of 16 million died from HIV-related illnesses. But experts across the board agree that the country, nestled deep in southern Africa, has made significant progress.

    According to UNAIDS, there has been a reduction in new infections. Malawi's treatment programme, which began in 2004, has reportedly saved 260,000 lives. Crucially, it has seen a 67 percent reduction in the number of children acquiring HIV, the biggest success story across all sub-Saharan nations.[11]

    [11] Essa, A, Al Jazeera, ‘How Malawi reduced its HIV/AIDS infection rate’, 19 July 2016,

30. In the same article, the Minister for Health said availability of drugs was one of the reasons for the improvements in overcoming HIV/AIDs.[12]

    [12] Ibid

31. Further, in 2017 many media sources reported that a new high-quality antiretroviral therapy will be launched in 90 countries at a reduced price:

    A breakthrough pricing agreement has been announced which will accelerate the availability of the first affordable, generic, single-pill HIV treatment regimen containing dolutegravir (DTG) to public sector purchasers in low- and middle-income countries (LMICs) at around US$75 per person, per year. The agreement is expected to accelerate treatment rollout as part of global efforts to reach all 36.7 million people living with HIV with high-quality antiretroviral therapy. UNAIDS estimates that in 2016, just over half (19.5 million) of all people living with HIV had access to the lifesaving medicines.

    DTG, a best-in-class integrase inhibitor, is widely used in high-income countries and is recommended by the World Health Organization (WHO) as an alternative first-line HIV regimen, as well as a preferred treatment by the U.S. Department of Health and Human Services Panel on Antiretroviral Guidelines for Adults and Adolescents, among many others. In addition to improving treatment quality and retention, widespread use of DTG is expected to lower the cost of first-line HIV treatment regimens while also reducing the need for more expensive second- and third-line regimens. In July 2017, WHO issued guidance to countries on how to safely and rapidly transition to DTG-based antiretroviral treatment.

    This agreement, announced by the governments of South Africa and Kenya, together with the Joint United Nations Programme on HIV/AIDS (UNAIDS), the Clinton Health Access Initiative (CHAI), the Bill & Melinda Gates Foundation (BMGF), Unitaid, the United Kingdom’s Department for International Development (DFID), the United States President’s Emergency Plan for AIDS Relief (PEPFAR), the U.S. Agency for International Development (USAID), and the Global Fund to Fight AIDS, Tuberculosis and Malaria, with Mylan Laboratories Limited and Aurobindo Pharma, takes an important step toward ensuring the availability of worldwide high-quality treatment for HIV.

    “This agreement will improve the quality of life for millions of people living with HIV,” said UNAIDS Executive Director Michel Sidibé. “To achieve the 90-90-90 treatment targets, newer, affordable and effective treatment options must be made available—from Baltimore to Bamako—without any delay.”

    WHO Director-General, Dr. Tedros Adhanom stated, "WHO welcomes this agreement which will make it possible to reach millions of people with better, more affordable and durable HIV drugs. This will save lives for the most vulnerable, bringing the world closer to the elimination of HIV. We congratulate South Africa, Kenya, CHAI and others on this landmark agreement. WHO will support countries in the safe introduction and a swift transition to this game-changing new treatment."

    This one pill, once-a-day generic fixed-dose combination of tenofovir disoproxil fumarate, lamivudine, and dolutegravir (TLD) was developed by Mylan and Aurobindo under licensing agreements from ViiV Healthcare, the original developer of DTG. Mylan and Aurobindo both recently received tentative approval from the U.S. Food and Drug Administration (FDA) for their products under the United States PEPFAR program. Clinical studies demonstrated that treatment regimens that use DTG result in more rapid suppression of viral load, fewer side effects, and greater potency against drug resistance than current regimens used in LMICs. [13]

    [13] World Health Organisation, ‘New high quality antiretroviral therapy to be launched in South Africa, Kenya and over 90 low-and middle-income countries at reduced price’,

1. The Aidsmap website suggests that Malawi is one of three African countries with high burdens of HIV infection which are achieving very high levels of HIV treatment initiation and viral suppression. This was reported at the 9th International AIDS Society Conference on HIV Science (IAS 2017) in Paris.[14]

   [14] Aidsmap, Alcorn A, 90-90-90 progress in Southern Africa: HIV testing gap needs to be closed in young people and men, July 2017

2. Taking all this information into account it is evident that ART treatment is currently widely available in Malawi and that this includes first, second and third-line drugs, such that specific treatment required by the first and second-named applicants taking into account their specific [requirements] would be available. Media sources suggest that availability of improved drugs is likely to increase shortly, and that treatment is becoming cheaper all the time. The information also suggests that follow-up treatment has improved significantly including monitoring, and that treatment centres have become increasingly decentralised. 

3. The applicants were asked at the Tribunal hearing if they had made enquiries in Malawi as to the lack of availability in Malawi of the specific drugs they are currently taking in Australia. The first-named applicant stated that he checked with the manufacturer who told him that the drugs he is taking in Australia are the ‘latest drugs’, and are not available in Africa. The first-named applicant said that this means he would have to make an arrangement to import the drug while he is in Africa, which would be impossible. He said that he also made enquiries on an anonymous basis on the treatment available in Malawi, and he found out that the treatment in Malawi is out-dated, a treatment Australia used years back. He found this out from the local hospital. The Tribunal asked the applicants if they could provide this information on the lack of availability of these drugs in Malawi from the manufacturer, as well as provide confirmation of the communications he had with the local hospital about the available treatment in Malawi. He said that he would try and get that information which was on email. He could also ask the representative if they could provide the information. On 26 October 2017 his representative advised the Tribunal that the first-named applicant could not find the email from ‘[Hospital 2]’ as it was sent to his work address and he deleted it for privacy reasons. He confirmed that he had been in contact with his current manufacturer by telephone and was told that they did not export their product. The representative stated that there are conflicting reports available as to the availability of [Drug 2], the drug currently being taken by the applicants, in Malawi. She provided some information to indicate that [Drug 2] or an alternative may be available in [another country in Africa], but was unable to confirm that it was not available in Malawi.

4. While specific information on the availability in Malawi of the particular drugs being used in Australia has not been provided, the Tribunal notes that [Dr A] reported that patients can change treatments, which is not necessarily deleterious, and what was more important was continuity of treatment. She also stated that the first-named applicant is tolerating his new medication well and has ‘excellent adherence’ and that his HIV viral load had been suppressed since January 2015. She said that his prognosis remains favourable, dependent on [a particular medical factor] and adherence to ART. She said that the second-named applicant had been treated since 2015 and her HIV viral load had been suppressed since 2016. According to the doctor, her prognosis remained positive, dependent on her adherence to ART medication. The doctor also reported that she was unable to state if the applicants would require treatment in hospital or develop HIV associated neurocognitive disorder (HAND) which can occur in any HIV positive person. She said that continued adherence to ART is beneficial in reducing risk of HIV complications. The Tribunal is satisfied based on all the information set out above, and in particular the high levels of access, and the fact that first, second and third line treatment is available, that appropriate ART would be available for the applicants in Malawi, with follow-ups and monitoring. The Tribunal is not satisfied that the specific drugs the applicants are using in Australia are not available in Malawi, given no information was provided about this; however, even if they are not available, the medical practitioner has indicated that the applicants can safely change treatment, and sources indicate there is wide availability of ART such that specific [needs] could be accounted for.

5. The Tribunal is also not satisfied that the applicants would be denied access to the drugs on the basis of discrimination or stigma. The Tribunal notes that the applicants lived in Blantyre where there would be wide availability of HIV treatment, and have also spent time in Lilongwe. Given job opportunities are higher there, and they have lived there previously, it is more likely they will live there, where there is wide availability of treatment and attitudes are less conservative. However even if they returned to their villages, it appears from the sources that there are now many rural centres for treatment such that they would be able to access treatment and monitoring. The information indicates that treatment is being undertaken by a majority of those people who are HIV positive, suggesting that stigma and discrimination is not prohibiting treatment. When discussed with the first-named applicant, he said that treatment focuses on special groups, such as pregnant women, and funds are provided internationally and sometimes affected by corruption and political mileage, which may hinder access. While this may be the case in specific instances, the Tribunal notes that the Avert website suggests that the rates of ART treatment are high, in fact 89% for those who know they are HIV positive, and that by 2020 the National Aids Commission has committed to achieving 90% treatment rates. The National Aids Commission has suggested that those not accessing treatment as frequently are young people and sex workers. The applicants are not in these groups of concern. On the basis of all this country information, the Tribunal is satisfied that there is a real chance that appropriate ART treatment would be available to the applicants and that stigma and discrimination would not prevent them from obtaining treatment.

6. The applicants also submitted that people are reluctant to seek treatment or monitoring, because of the stigma associated with having HIV, and discrimination they fear they will suffer. This is referred to in an article in 2014 by the International Federation of Red Cross and Red Crescent Societies. The article states that ‘treatment is not only about increasing access to medicine alone, the non-clinical barriers to service access – cultural perceptions, stigma and discrimination are often the most critical ones’. The article quotes the wife of an HIV positive man, who stated that even though ART treatment was available, many people shunned testing for fear of being discriminated against. However, she also spoke positively about the support provided by the National Association of People Living with Aids, and a support group she formed in the village called Kataila. She said that community leaders in the village were supportive of her initiatives to overcome stigma.[15] The Tribunal accepts that some people in Malawi may not seek treatment because of fear of stigma or discrimination. However the Tribunal does not accept that the applicants, who are educated in matters concerning treatment, would not seek treatment because of fear of stigma. Furthermore, it is clear, as reflected in the article referred to in this paragraph, that in many regions, government and community are making efforts to overcome issues of stigma.

   [15] International Federation of Red Cross and Red Crescent Societies, People living with HIV fighting stigma and discrimination, 1 December 2014, – accessed 4 January 2018

7. The Tribunal is not satisfied therefore that there is a real chance, anything more than a remote or unforeseeable chance (Chan v MIEA (1989) 169 CLR 379) that the applicants would be denied ART treatment or monitoring or would not access it, and therefore their health would diminish and they would become very ill and/or die.

8. The applicants have also expressed concern that they would not have the psychological support that they receive in Australia. The Tribunal notes that the sources do not suggest that there is denial of such support for reasons of stigma or discrimination against HIV positive people. Rather, this is a problem of funding. The Tribunal is not satisfied therefore, that the applicants would be persecuted for one of the Convention reasons by way of denial of psychological support. Sources do suggest that support organisations do exist, although perhaps not at the individualised level available in Australia. In particular, sources suggest that there are numerous support organisations and AIDS centres in Blantyre – e.g. Malawi Aids Counselling and Resource Organisation and the Centre for Disease Control and Prevention.[16] The Tribunal is not satisfied therefore that there is a real chance of persecution in the form of psychological harm for a Convention reason.

   Violence against people who are HIV positive, discrimination in employment, and denial of access to services of people who are HIV positive

   [16] Centre for Disease Control and Preventions, CDCP in Malawi, November 2013, - accessed 12 October 2017

9. The applicants claim that they could not obtain or retain employment because of discrimination in jobs against HIV positive people, and therefore they could not subsist. They claim that they would be denied access to housing, health and dental services on this basis. They claim that this is evidenced by the fact that there are still AIDS-related deaths in the country, with the Avert website indicating that there were 24,000 deaths in 2016 alone. They also claim that there is no social security in Malawi.

10. The Tribunal discussed relevant country information with the applicant. In reputable human rights reports and google searches, the Tribunal was unable to find evidence of significant violence or threats against people who are HIV positive[17] although there may be isolated incidents. The People Living with HIV Stigma Index Report, found that 16% of respondents stated that they had been physically harassed or assaulted, and other major reports did not refer to this as a significant problem.[18] The Tribunal is not satisfied therefore that there is a real chance of persecution (more than a remote or unforeseeable chance) in the form of violence or physical threats against the applicants, for reason of their HIV status.

    [17] US State Department, Country Reports on Human Rights Practices for 2012 in relation to Malawi, Section 6, Other Societal Violence or Discrimination; google searches on the topic

    [18] Malawi Network of People Living with HIV and AIDs, The People Living with HIV Stigma Index, March 2012

11. In regards to discrimination in the workplace, the Malawian Constitution guarantees the right to equality and non-discrimination.[19] Further, in 2010 the government of Malawi introduced a National HIV and AIDS Workplace Policy prohibiting discrimination on the basis of HIV status, and promoting positive HIV work practices.[20] Some of the companies which had developed workplace policies included the Malawi Broadcasting Corporation and the Malawi Communications Regulatory Authority. Goals included eradication of stigma and discrimination against members of staff affected by HIV and their families.

    [19] MANET+ and others, Positive Health, Dignity and Prevention in Malawi, findings and recommendations from Studies Led by People living with HIV, - accessed 1 February 2018

    [20] Government of Malawi, National HIV and Aids Workplace Policy, June 2010, - accessed 2 January 2018

12. The United States Department of State Report on Human Rights Practices confirms that employment law prohibits discrimination on the basis of HIV/AIDS status, gender and other criteria. The report states that the government did not effectively enforce the law, but referred particularly to examples of discrimination against women. The report suggests that the National Aids Commission maintained that discrimination was a problem in both the public and private sectors. The report does suggest that government campaigns to combat stigma had had some success.[21] 

    [21] US State Department, Country Reports on Human Rights Practices for 2012 in relation to Malawi, Section 6, Other Societal Violence or Discrimination

13. The applicant quoted a study from 2012 called ‘Factors hindering the adoption of HIV/AIDS workplace policies: evidence from private sector companies in Malawi’.  This study stated that some companies had not seen the impact of HIV on their company and for this reason had not introduced a policy. There were other factors which impacted on lack of introduction of the policy – including organisational size and lack of awareness. This study did not suggest that stigma or discrimination was the cause of lack of implementation, or that people with HIV were being discriminated against.

14. There have been a number of government initiatives to overcome stigma and discrimination. A more open approach was indicated, when, in 2002 a cabinet minister, Thengo Maloya, disclosed that he had lost three of his children to AIDS in the past ten years and in 2004 the former President, Bakili Muluzi, revealed that his brother had died of AIDS three years previously and urged Malawians to challenge the stigma associated with AIDS.[22]  Sources suggest that the government has been open about programs to overcome discrimination and very supportive of AIDS initiatives. Recently the UNAIDS Executive Director hailed the appointment of Malawi First Lady Dr. Gertrude Mutharika as President of the Organisation of African First Ladies against HIV/AIDS (OAFLA).[23]

    [22] Avert, HIV & AIDS in Malawi, undated, downloaded from accessed 13 July 2013

    [23] Malawi Voice, ‘UNAIDS celebrates appointment of Dr Gertrude Mutharika OAFLA Presidency’,  31 January 2017

15. Further, Malawian President Prof Peter Mutharika became the 16th African Head of State to sign the official ‘Protect the Goal’ ball on 28 August in a special ceremony held at the Presidential Palace in Blantyre where he committed to supporting the implementation of the HIV Prevention ‘Protect the Goal’ campaign in Malawi at national, regional and community levels. The campaign is one in a series of activities which the National AIDS Commission, UNAIDS and their partners are undertaking to re-invigorate HIV prevention in the country, particularly among young people. It is seeking to contribute towards attainment of the three Zeros (zero new HIV infections, zero discrimination, and zero AIDS-related deaths) and in particular, the drive towards Zero New Infections, through the galvanizing power of football. Before signing the ball, Mutharika said young people need to be protected from HIV and AIDS by providing them with a range of services from prevention, treatment, care, and support including access to youth friendly sexual and reproductive health services. UN Resident Coordinator Ms Mia Seppo said the ‘Protect the Goal’ campaign is more than just a global HIV awareness campaign but also a bold social movement, uniting people from around the world, with the power of sport and social change:

    The United Nations is thrilled to have such a groundswell of support from not just the stars of African soccer like Mr. Asamoah Gyan, but also Heads of State who agree that achieving Zero New Infections, Zero Stigma and Discrimination and Zero AIDS-related death is possible. Campaigns like Protect the Goal can help get the important messages out, encourage people to adopt positive behaviour and to seek the services that are needed to both manage and control the epidemic.[24]

    [24] UN Malawi, ‘Mutharika commits to HIV prevention “protect the Goal campaign”’

16. It is difficult to source information on the implementation of the government policy on prohibitions of discrimination of people affected with HIV, or denial of services in relation to people with HIV. One study, ‘The People Living with HIV Stigma Index’, while finding extensive societal ostracism is present in Malawi, did not report that there was extensive discrimination in the workforce. The report found that 16% had lost a job or another source of income, with 5.5% reporting having been dismissed, suspended or prevented from attending an educational institution and 4.5% reporting having been denied health services, including dental care. The report states that the government has supported the development and implementation of HIV and AIDS workplace policies and programs, both through partnerships with private companies and through programs for government employees. It states that the Malawi Business Coalition was formed as a co-ordinating body for these programs in the private sector. Some of the respondents in the study said they had never been discriminated against, and others said they had experienced positive discrimination in the workplace. Over 90% of respondents had not experienced being forced to change residence or inability to secure rental accommodation in the previous 12 months due to their status. None of the respondents reported being detained, quarantined, isolated or segregated by government authorities, or taken to court on a charge related to HIV status. The United States Department of State Report on Human Rights Practices also does not refer to specific or frequent examples of discrimination in the workplace.[25] The MAMET+ and others report in 2002 found that 20% of respondents reported that they had been subjected to one or more discriminatory practices by government, legal and/or medical institutions.[26]

    [25] Malawi Network of People Living with HIV and AIDs, The People Living with HIV Stigma Index, March 2012

    [26] MANET+ and others, Positive Health, Dignity and Prevention in Malawi, findings and recommendations from Studies Led by People living with HIV, - accessed 1 February 2018

17. The Tribunal put to the applicant that this information collectively illustrates that there is a serious commitment by government to overcoming the HIV/ AIDS stigma and discrimination in Malawian society. Further, support at such high levels by the leaders, business and sporting stars must have a flow-on effect to the attitudes of the population. While there is no doubt that there is still stigma, it appears that it is diminishing and the government is working hard to get rid of it. There is also little evidence of discrimination in the workplace or denial of services, although there are some reported instances. The applicant responded to this country information by saying that there are positive developments. The President is trying to ensure that there are no new infections, and to reduce infections. However discrimination is still rampant and this is not an issue dealt with by government.

18. The applicant also claimed that many Malawian companies are yet to put into place programs for HIV workers, although some have made efforts. He claims that his HIV status would become known to employers due to lack of privacy and confidentiality in Malawi. He said that because of the culture, people do not state that they are HIV positive and do not take advantage of the HIV policy. Organisations still do not want the cost of HIV positive employees due to absenteeism and other issues. He has seen people being moved from higher to lower roles because of sickness.

·While treatment for HIV is available in Malawi, the medical system in Australia is superior and there is more tolerance of HIV positive people than in Malawi.

CONCLUDING PARAGRAPHS

135. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criteria set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criteria set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

DECISION

136.   The Tribunal affirms the decision not to grant the applicants protection visas.

Jane Marquard
Member

ATTACHMENT A

RELEVANT LAW

137. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

Refugee criterion

138. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

139.   Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

140.   Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

141.   There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

142.   Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

143.   Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

144.   Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

145.   Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. 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%.

146.   In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

147.   Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

148. 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 a protection 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 the applicant 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’).

149. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

150. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Section 499 Ministerial Direction

151. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

Member of the same family unit

152. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition.

– accessed 20 January 2018

– accessed 20 January 2018