1511084 (Refugee)

The applicants, a couple and their two children, sought protection visas on the basis of claims of serious harm or persecution. They asserted that they would face harm due to their status as people living with HIV, and that their children would suffer persecution as children affected by HIV or as orphans. Additionally, they claimed fear of persecution for political reasons, exacerbated by their Yao ethnicity, and as potential victims of crime and poverty. The matter was heard by Jane Marquard.

The legal issues before the court were whether the applicants would face persecution or significant harm amounting to a breach of Australia's non-refoulement obligations, either as members of a particular social group (people living with HIV), or due to imputed political opinion linked to their ethnicity, or as victims of general societal harm including crime and poverty. The court was required to assess the availability and adequacy of HIV treatment in Malawi, the extent of stigma and discrimination faced by people living with HIV, and the risk of harm to the children. Furthermore, the court had to consider whether the applicants' Yao ethnicity exposed them to imputed political opinions and subsequent persecution, particularly in light of political divisions within Malawi.

The court considered evidence regarding the applicants' personal circumstances, their HIV status, and the medical treatment they were receiving in Australia. It also examined country information pertaining to Malawi, including the availability of HIV treatment, the existence and impact of social stigma, and the political landscape. The court noted that while stigma against people living with HIV exists in Malawi, country information suggested it was not at a level amounting to serious harm and was reducing. Regarding the political claims, the court found limited evidence of persecution based on imputed political opinion linked to their Yao ethnicity, noting that while intertribal conflict existed, the applicants had not demonstrated a real risk of harm on this basis. The court also considered the claims of harm as returnees from the West and as victims of crime and poverty, finding these claims did not meet the threshold for protection.

The delegate of the Department was not satisfied that the applicants met the criteria for a refugee or complementary protection visa. The Tribunal's decision was not provided in the extract.