1511485 (Refugee)

[2018] AATA 5232

1511485 (Refugee) [2018] AATA 5232 (10 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511485

COUNTRY OF REFERENCE:                  India

MEMBER:Meena Sripathy

DATE:10 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 10 December 2018 at 3:44pm

CATCHWORDS

REFUGEE – protection visa – India – social group – person with HIV – risk of discrimination as perceived homosexual – lack of family support – access medical services – limited capacity to work due to medical condition – level of stigma and discrimination in broader Indian society – relocation unreasonable – real chance of serious harm – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5(H), 5(J), 5K-LA, 36, 65, 499

Migration Regulation 1994, Schedule 2

CASES

MIMA v Rajalingam (1993) FCR 220) 
MZXKX v Minister for Immigration [2008] FMCA 567
Selvadurai v MIEA& Anor (1994) 34 ALD 347          

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.This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 July 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2.The applicant who claims to be a citizen of India, applied for the visa on 1 April 2015. The delegate refused to grant the visa on the basis that he was not satisfied the applicant faced a real chance of persecution on the basis of his membership of a particular social group (being HIV positive men in India).

3.The issues in this review are whether there is a real chance, if the applicant returned to India, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to India, there is a real risk that he will suffer significant harm.

4.For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CRITERIA FOR A PROTECTION VISA

5.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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

7.A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

8.Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

9.If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

10.In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

Evidence before the Department

11.The applicant is [an age] year old single male of Indian nationality.  He arrived in Australia in July 2003 on a student visa.  He indicates his religion as Hindu.  He speaks reads and writes English and also speaks Telugu and Hindi.  His family comprises his parents, one [brother] and one [sister].  He indicates he has minimal contact with his parents or siblings.   He states his visa has expired and he has lost his passport.  At the time of application he was being held at [the] Immigration Detention Centre since March 2015.  He provided one residential address in [Andhra Pradesh], India from birth until he came to Australia in 2003.

12.In a statement accompanying his application, entitled an Outline of Claims for Protection, the applicant provides the following information, and repeated again in a Statutory Declaration by him dated 15 April 2015:

·He is afraid of returning to India due to HIV positive status. 

·He was diagnosed with HIV in 2009 and was very shocked and depressed by the news.  He started taking HIV medication from January 2010 and his health started to improve a little. He stopped taking the medication because he could not afford it and was not eligible for Medicare. He has been hospitalised several times because he has not been taking medication regularly.  More recently he has had more problems with his memory, forgetting simple things all the time.

·He is afraid that due to his HIV status he will be assumed to be gay and face persecution on that basis as well.

·He fears facing extreme stigma and discrimination as a person with HIV such that he would not be able to obtain accommodation and employment and would be unable to subsist to pay for food and medication. Without HIV medication his condition will deteriorate and he may die.

·He fears nobody will employ a person with HIV.  Although he has never been to hospital in India, he knows there are big queues and waiting lists in public hospitals.  He would not be able to afford private hospital because he would not have employment. He is afraid that even in hospitals he would face stigma and discrimination because of his HIV status.

·In India HIV is associated with particular groups of people (gay men, drug users and sex workers) and is highly stigmatised.

·He fears people will assume he is homosexual because he has HIV and is not married, and homosexuals are treated very badly in India.

·He is from Hyderabad and lived there all his life. Moving to another city would not prevent him from facing the harm he fears because HIV is stigmatised all over India.

·He is not close to his family in India.  He speaks to his parents only every 3-6 months for a few minutes. He rarely speaks with his siblings, who are both married and have their own families. He has not told his parents about his HIV diagnosis because they are elderly and not in good health and he is afraid of their reaction. He is afraid if he told them they would not allow him to stay in their house because they would be afraid they may catch the disease and fearful that people would reject them.

·In 2014, the applicant’s friend in Australia [Mr A], persuaded the applicant’s [uncle] in India to visit him.  He came with his wife and at the time the applicant was quite sick. His uncle kept asking what was wrong with him.  Eventually he came to know that he had HIV, and when this was confirmed, he returned to India and has never contacted him again.  The applicant is afraid his uncle has told everyone in Indian that he has HIV and he is even more afraid to contact his parents now in case they already know.  

13.The applicant’s representative made submissions that the applicant has a well founded fear of persecution on the basis of his membership of the particular social group of people living with HIV in India and men living with HIV presumed to be homosexual.  Reference was made to the decision in MZXKX v Minister for Immigration [2008] FMCA 567 which found that persons with HIV positive status constituted a particular social group. It was submitted that he will suffer physical and psychological harm due to his membership of this particular social group. The harm he will suffer includes deprivation of essential medication due to the stigma and discrimination faced by people living with HIV and being ostracised by his community and discrimination in healthcare, employment and access to government services. It was submitted that the applicant is reliant on specific antiretroviral medication which is difficult to access in Indonesia [sic] and that the discrimination and stigma he will face due to his HIV status will result in serious harm to him and the Indian government will be unable to protect him from this. The applicant has not disclosed his HIV status to his family for fear of rejection by them.  He has not experienced past harm on this basis as he has not returned to India since arrival in Australia in 2003. The representative refers to a decision of the Refugee Review Tribunal in 2010, where it was held that Australia owed protection obligations to an applicant from Indonesia with HIV and argues that the same principles apply in the present case.

14.A further detailed written submission, setting out the applicant’s claims for protection against the refugee and complementary protection criteria, and referring to relevant country information addressing HIV in India, was provided by the applicant’s representative to the Department on 29 April 2015.

15.Also provided that date is a letter from [Dr B], Clinical Immunologist, [Hospital 1] regarding the applicant’s condition and prognosis.  He confirms the applicant has been attending [Hospital 1] since 2010 and has been found to have HIV infection and hepatitis B infection. He was admitted to hospital in September 2012 for treatment for severe HSV and HPV infection and has remained in regular clinic contact since then and is receiving treatment with a particular combination of retrovirals, provided compassionately through [Hospital 1]. His virus is not fully sensitive to the standard regimens used in India. He remains quite immunodeficient and thus remains with a poor long term prognosis as he remains at risk of acquiring a life threatening opportunistic infection. Were he to return to India where tuberculosis is prevalent, there is a very high likelihood that he would acquire that infection with catastrophic consequences.  The applicant’s best chance for immunological recovery will come from using modern state of the art antiretroviral therapy without interruption to his treatment or change to his regimen.  Many of the agents currently in his regimen are not readily available in India through public health programs. A switch to older type antiretroviral therapy would be ineffective and result in re-emergence of resistance and inefficacy.

16.The applicant was interviewed by an officer of the Department on 1 May 2015. An audio recording of the interview is included in the Department file and the Tribunal has listened to a recording of the interview. 

17.On 7 May 2015 following the Department interview, the applicant’s representative provided a further submission addressing the HIV and AIDS Prevention Bill 2014 discussed at the interview, arguing that the Bill is currently only before the Upper House of Parliament, has been in draft format since 2006 and there is no indication of when or if it will be passed and in what form. Further submissions were also made on the lack of availability of HIV treatment and/or medical treatment due to HIV stigma and discrimination and the significance of the delay by the applicant in making his protection visa application. The representative also forwarded a letter dated [May] 2015 from [social] worker at [Hospital 1]. 

18.On 15 June 2015 a Statutory Declaration dated 13 June 2015 from [Mr A], the applicant’s friend and main financial and emotional supporter was provided.  [Mr A] provided information that he has known the applicant since 2003, having met at a social event in [City 1], they have been flatmates at his current address since around 2004 or 2005 and are very good friends. He confirms his knowledge of the applicant’s HIV status and that he has been supporting him, including financially, since that time.  [Mr A] provided details of efforts he made to contact the applicant’s [uncle] in 2014.  He stated that as a result of that contact and financial support he provided for their airfare and accommodation in [City 1], this uncle, [Mr C], and his wife visited the applicant in October 2014.  He indicated that during this visit they questioned him and the applicant about the applicant’s condition and eventually he had no choice but to confirm the uncle’s suspicions that he had AIDS. He states that they returned to India after this and he has had no contact from them since, despite his efforts. [Mr A] also provides information about the situation for people with HIV in India on the basis of his personal observations when returning to India for work trips.  He provided information about a conversation he had with a doctor at a private hospital who explained to him the difficulty the applicant would have to get treatment there, especially because of financial reasons.

19.Also included in the Department file are notes of interviews conducted by officers of the Department on 12 and 13 March 2015 when the applicant was detected as unlawful in the community and brought into immigration detention.  Information contained in these notes indicates the applicant’s last substantive visa was a Student visa which expired on 15 March 2007. He had no ongoing applications with the Department at that time. He indicated he cannot return to his home country because of his HIV status and cannot face his family and friends in India and the medical treatment is better in Australia than India.

Evidence before the Tribunal

20.By letter dated 2 October 2015, the applicant’s representative provided a submission, reiterating reliance on previous submissions, addressing the delegate’s reasons and providing additional country information.

21.At the hearing the applicant confirmed he was living at the same address as stated in the application, and still with his friend [Mr A]. He said another person is also staying at present, a friend of [Mr A]’s. [Mr A] is often outside the country so this person has been staying there since November 2017.  The applicant said he has lived at this address with [Mr A] since around 2007.  Before that he lived in share accommodation in [location]. He said he has known [Mr A] since around 2004. They met through other friends.

22.The applicant stated he is not presently working.  He has not worked since he was detected by Immigration in 2015 and detained.  Prior to that he worked on and off since his arrival in Australia in 2003.

23.He confirmed that he came to Australia to study in 2003.  He initially started a Diploma [and] then [another] course at the same institution, [named] University. His grades were not good so he later changed to another course at [another] University, but still was not getting good grades.  Eventually in around 2007 he ceased study.  The applicant said he did not complete any qualifications in Australia due to problems he suffered with poor concentration. 

24.The Tribunal asked about his family.  He stated he has no family in Australia.  In India he has parents, [a]brother and [a] sister.  He has not had contact with his parents since around 2003 or 2004.  Later in the hearing he mentioned having called his father in around 2005 to ask for money and his father refused him and he has had no contact since then. The Tribunal asked why his parents ceased contact with him. He said the family has many internal conflicts between them, about all sorts of things including financial matters. The Tribunal tried several times during the hearing to explore this with the applicant further but he was vague and non-specific about the reasons for lack of contact with his family.  Subsequently, in response to specific questions put him by his representative (with the Tribunal’s permission) he revealed the conflicts within the family escalated to physical violence, including violence directed at him when he was a child as well as an adult.  The violence never led to involvement by police, nor did any family members seek medical treatment for injuries.  He sometimes left home to stay with friends due to the level of conflict.

25.He stated that he lived with his parents up until he came to Australia in 2003.  He studied [at a] University in Hyderabad and after that he did some small jobs in [a certain] field.  He lived at home mostly but from time to time he left home due to conflicts with his parents and stayed with friends.  When he came to Australia in 2003, he initially stayed with his brother who had been here for some years prior.  After some months his brother returned to India and has not been back since.  The applicant said although he lived with his brother they did not get on during this time.  His sister is married and has [children].  She was married and had [children], before the applicant came to Australia. Since he has been here he has heard through others that she has had another child.  He has also heard that his brother married and has children.   The applicant stated his father is now retired, and previously worked as an [occupation] for [a company].

26.The Tribunal asked about extended relatives.  He said his grandparents have all passed away.  His father had one brother, who died last year and one sister who lives in the countryside.  She is not married and has no children. This is the uncle who visited him in 2014.  He has [children] all living in Hyderabad.  On his mother’s side, the applicant has [living] uncles and one aunt all in Hyderabad. He knows of one cousin who went to [another country] around 1996 or 1997. He has never sought support from any of his aunts, uncles or cousins.

27.The Tribunal asked the applicant about the circumstances of his diagnosis.  He said he was feeling ill for a while and developed a white spot on his face.  He went to the doctor who referred him for further tests.  His bloods were taken for this purpose and he was informed that he had contracted HIV.  He was shocked and depressed about this. His friend [Mr A] was with him from the beginning and supported him through this period.  The applicant confirmed that [Mr A] is only a friend, he comes from the same area as the applicant and they share a common language.

28.The applicant recounted an incident where he fainted one day while at the Clinic and was transferred to the Emergency Department at [Hospital 1].  After that he was cared for by the HIV Clinic there. He was provided with free medication for a period. When that was exhausted he stopped taking the medication because of the cost to purchase it himself.  This is what led him to be admitted to Emergency at [Hospital 1].  At this point [Dr B] explained to him that they could arrange for him to receive the treatment for free. Since then he has been taking the medication, though he still suffers medical issues regularly.  For example he had an episode of shingles in 2015 and was hospitalised for 26 days.  He also had Hepatitis B and there were concerns about his liver function.  He currently sees [Dr E] at the HIV Clinic at [Hospital 1] on a monthly basis and has his bloods checked, he is seen at the gastroenteritis clinic every 2 months, and has a liver scan every 6 months.  His medication regimen is changed when his body builds resistance to the drugs.  It was last changed about 2 years ago.  The applicant stated that currently his CD4 T cell count is around 150 but this is still well below normal levels.

29.The applicant told the Tribunal he was working intermittently until 2015. However there were periods when he could not work due to his health condition, for example when he was hospitalised for the shingles.  He has only ever worked as [an occupation] in Australia, he has never sought or obtained any work in his field of study because he has problems concentrating and so he prefers to do work that does not require as much concentration or mental effort. The applicant at this stage referred to a psychiatrist who he saw when at [the hospital] called [Dr F] who was investigating his memory and cognition issues.  The Tribunal suggested a report from her may be useful. The applicant said he did not have any mental health or cognition issues previously in India, although he did need to do supplementary exams to pass his Bachelors degree. 

30.The Tribunal asked if he has kept in touch with any friends from his university days in India. He said he has one friend he has kept in contact with, [name deleted].  He speaks to him every 4-5 months.  He has told this friend about his HIV status and his circumstances.  He is a friend from his childhood. He is not married and has no children.  This friend lives alone, and currently has no job.  The applicant does not know how he survives, but he fears if it is difficult for his friend to find work and survive it will be even more difficult if he returns.

31.The Tribunal asked the applicant what he is afraid will happen if he returns.  He said he doesn’t know where he will go and how he will manage to live and how he will obtain the medical care he needs. They separate people who are sick in India. Even if he can access free treatment, he is concerned that people will take that from him to resell on the black market because that is what happens in India.  Private hospitals charge a lot of money to provide treatment. Government hospitals are struggling to manage.  He does not believe he can survive there. His family won’t support him as they have not even wanted to contact him all these years in Australia.

32.The Tribunal asked the applicant about the circumstances of [Mr A] contacting his uncle in India. He said this was at [Mr A]’s own initiative. He did not ask him to and he did not provide any contact details. He does not know how [Mr A] found his uncle.  The applicant said he last saw this uncle around 2001 or 2002 before he came to Australia. He used to get some support and encouragement from this uncle as he encouraged him to do things. But he never contacted him since coming to Australia. He next saw him in October 2014 when the uncle came to Australia.  During this visit the applicant said he did not tell his uncle anything about his condition or ask him for any help. He said he was not happy that his uncle had come to see him because he was afraid that he would report negatively back to his family.  He was afraid of his uncle finding out about his condition and telling people and then him being rejected. He cannot recall if he was sick at the time of his uncle’s visit. The uncle came to see him 2 or 3 times. The applicant stated that he did not at any time tell his uncle about his condition.  He does not know, or cannot recall, if his friend [Mr A] told him.  

33.The applicant said since then he has had no further contact from his uncle. 

34.The Tribunal discussed with the applicant his fear of harm on the basis that he will be perceived as homosexual.  He said he is afraid of this only on the basis of his HIV status and not for any other reason.  He told the Tribunal he is not gay.  He believes that homosexuals are treated very badly in India and he is afraid he will be treated badly on the basis that people will assume he is gay.

35.He said private employees in India require employees to undergo medical examinations and his status will become known in this way. He is afraid he will be unable to obtain employment for this reason and he then will not be able to survive in India.  He also is not confident he will be able to access treatment he needs.

36.The Tribunal put to the applicant information before it that the HIV/AIDS Prevention and Control Act passed in 2017 and as a result of this law it is now unlawful for an employer to require such medical examinations or to discriminate on the basis of HIV status, and also unlawful to disclose information about a person’s HIV status without their permission.  It put to him that this law addresses many of the concerns he has raised about the impact of discrimination and stigmatisation of people living with HIV in India and demonstrates a willingness by the State to address these matters.  It also put to him that recent statistics indicate that the percentage of people living with HIV accessing free ART treatment is steadily increasing and is now over 50%. It invited his comment on this information.  In response he said he is still afraid of people coming to know about his status and believes that people will see him going to a centre for treatment and will know his has the condition in this way and he will suffer discrimination and harm.

37.The Tribunal noted his representative’s request for time to provide further submissions addressing the country information. 

Evidence from [Mr A]

38.[Mr A] told the Tribunal he is single, has no partner and is self employed.  He has a business [details deleted]. He met the applicant at a social event in around 2003, when they were both students.  They started sharing accommodation together from 2009 or 2010.  He said it was from the time after he was admitted into hospital.  They were at a social gathering and he fainted and they took him to hospital where he was admitted.  This was the time when [Mr A] came to know of his diagnosis and the doctors at the hospital said he needed to live with someone who could care for him.  The doctors explained to [Mr A] all about the condition and reassured him so that he felt comfortable living with him and after this he arranged for the flat they currently share.  Before this he was living [on] his own and the applicant was living in share accommodation. 

39.The Tribunal asked [Mr A] why he took on the responsibility of looking after and caring for the applicant. He said he had come to know him over several years and when he was diagnosed with HIV, he realised he had no one else and was not in contact with his family so he felt he had no choice but to help him.  [Mr A] told the Tribunal he assumed the applicant’s estrangement from his family was because of his HIV condition. He did not know any other reason. 

40.The Tribunal asked the witness what support he provides the applicant. He said he provides accommodation and pays all the costs associated with that, including bills and food.  The applicant’s medication is provided by the Clinic. The applicant makes some financial contribution when he can but he has not worked for several years.

41.[Mr A] told the Tribunal only he and the applicant are residing at the current address. When it was put to him that the applicant stated that a third person was also sharing with them, he acknowledged that this person has been staying on and off, but was travelling around.  He said he travels for 6-8 months of the year. When he is away, a cousin of his comes to the apartment to help the applicant and provide food. 

42.The Tribunal asked the witness about his contact with the applicant’s family.  He said he started asking around in India to find relatives of the applicant.  He found a cousin [who] gave him the name and number of the applicant’s brother [and] in 2013 he met [the applicant’s brother] in India. He told him that the applicant has a serious health condition and has issues with his visa and urged him to visit him and help him.  His brother was not interested in hearing about it or helping.   [Mr A] said he tried a few more times after that to convince him, by phone and in person. He gave him a letter of invitation to assist him to visit.  He does not know if he visited Australia in the end. He did not see him in Australia. 

43.The Tribunal put to the witness that his oral evidence is quite different in a number of material aspects to the information he provided in his Statutory Declaration.  It put to him that in his Statutory Declaration he said he and the applicant had been flatmates since 2004 or 2005.  He also referred in his Statutory Declaration to contacting the applicant’s [uncle], [Mr C], in 2014 and that he and his wife visited Australia in October 2014.  He stated in his declaration that the applicant’s uncle eventually asked him directly if the applicant had AIDS and he had no option but to say yes.  It put to him that he made no mention of any contact with the applicant’s brother as he has mentioned today.  In response [Mr A] said that he made contact with both of these relatives.  He explained that he had an accident in India and suffered a head injury and this may explain his confusion or poor memory about these matters. He reiterated that the uncle [Mr C] visited the applicant with his wife but [Mr A] was not present in Australia at the time of their visit. [Mr A] confirmed to the Tribunal that he did not disclose to the applicant’s uncle the applicant’s HIV status. He said he told him that he had cancer. He does not know if the applicant told him. [Mr A] confirmed he was not present in Australia if [the applicant’s brother] came here and has not disclosed the applicant’s status to him.   When asked why he believes that they may know the applicant’s status if he has not told them, [Mr A] said he assumes the applicant may have told them. When asked why he was seeking out the applicant’s family members, [Mr A] stated that he cannot help the applicant for the rest of his life and the lawyer suggested to him that he should see if he can get information from the relatives so he started looking for them.

44.The Tribunal asked [Mr A] about the contact he made with doctors in India.  He said he has cousins in the medical profession and he made enquiries through contacts he has there. The doctor he refers to in his statement works at a private hospital and he explained to him the difficulties people have getting treatment and medication.  He told him that if the patients cannot buy their medication they are left to die.  He said he did not speak about the specific treatment regimen of the applicant with this doctor, he was only speaking with him generally.  [Mr A] said that he [participated in] fundraisers in India to raise funds for various issues and did one for HIV patients. He stated that he was able through his fundraisers to raise funds for this cause. The Tribunal noted that this appears to be inconsistent again with the information he provided in his Statutory Declaration.

45.[Mr A] told the Tribunal that he is planning to get married later this year and he will not be able to support the applicant after that.  

46.The applicant’s representative requested the Tribunal to ask the witness further questions about his accident. [Details deleted]. The accident occurred in April 2014 and he was hospitalised for 4 weeks and remained in India for the rest of that year.  The accident affected his memory for some years after that.

47.Following this the Tribunal allowed the representative to ask the applicant some further questions, and in response the applicant provided the following evidence. He did not speak to his uncle when he came to Australia because he was afraid of the consequence of him finding out about his status and rejecting him and telling everyone else in India.  There was a history of fighting including physical violence in his family.  He experienced this as a child as well as when he was an adult. He left home at age [deleted] and stayed with friends on several occasions.  The police were never involved and neither did anyone ever seek medical treatment or hospitalisation as a result of these incidents.

48.Since the applicant has been diagnosed, his condition has prevented him from working on several occasions for example when he had shingles and also on other occasions when he has had marks on his face.  The applicant said he has been tested for the impact of the HIV infection on the brain by [Dr F].  He has had problems remembering and often forgets things and even people.

Evidence from [Dr B]

49.[Dr B] stated his qualifications and current position.  He explained that in his current position he does not work in the HIV Clinic, but is aware that the applicant is currently under the care of his colleague [Dr E] and receiving treatment at the Clinic.  The Tribunal asked if he could explain why the applicant, in 2012, reacted poorly to treatment resulting in his hospitalisation. He said back then it was not unusual for patients to have poor responses as they were still working out appropriate combinations of medications, the drugs have improved greatly since then and patients responses in recent times are much better for this reason. He confirmed his understanding is that the applicant continues to be on a similar sort of combination of drugs as specified in his letter dated April 2015.  The Tribunal asked if he was aware of any particular issues the applicant may have accessing these drugs in India. [Dr B] said in respect of one of the classes of drugs he is receiving, these are only just creeping into use in Asia and is every expensive as there are not yet generic versions available. The bigger task in many countries like India is getting as many people as possible on to treatment at all rather than getting people on to specific drugs.

50.In response to the Tribunal’s question about what may be the consequences for the applicant if he did not access treatment or accessed different treatment, he said his virus level would most certainly increase and he would suffer damage to his immune system again and the recovery he has achieved here would deteriorate. Eventually he would slip into an immunodeficiency.  Essentially it is necessary to achieve very low levels of the virus to get a benefit and that is why in Australia the focus is on tailored therapy to the individual.  Regarding the applicant’s current CD4 T cell count, the Tribunal put to the witness that the applicant has indicated that his level is currently 150 and asked what his prognosis would be given that.  He said that a person has a reasonably good chance of survival at levels > 100 and a level of 150 is compatible with prolonged survival but it is still sub optimal and his treating doctors here would be trying to increase it much higher than that. 

51.The Tribunal asked what the impact of the virus is on his capacity to work. In response the witness stated that he should be able to work but it would also depend on what if any damage he has suffered to other tissues and organs, including his brain. 

52.Following the hearing the Tribunal obtained information from Departmental records relating to visas and movement history of the applicant’s brother and the family member referred to during the hearing. Specifically Departmental movement records indicate that an individual by the name of [Variation 1 of Mr C], born in [year], had been in Australia on a visitor visa from [January] to [February] 2018 and [in] May 2018.  Records also indicate a [Variation 2 of Mr C], born in [a different year], and a [Ms C], born in [year], came to Australia [in] February 2015 and departed [in] March 2015.  Departmental file notes relating to the visitor visa grant to [Variation 2 of Mr C] indicate his occupation as retired [occupation] at [a company] and that he was going to meet his nephew along with his spouse leaving his son in India. File records indicate his son [was] spoken to and records his spouse’s name as [Ms C]. 

53.On 11 May 2017 the Tribunal wrote to the applicant under s424A of the Act.  It invited him to comment on the evidence provided by his witness, [Mr A] regarding the timing of their household arrangements and his contacts with the applicant’s family members and also the information obtained by the Tribunal regarding visits by the applicant’s family members to Australia.  The invitation explained the relevant of the adverse information and consequences of relying on the information to affirm the decision under review.

54.On 4 June 2018 the Tribunal received a response from the applicant’s representative.  The following matters are submitted in response to the issues raised in the invitation to comment:

·The applicant has been diagnosed with HIV Associated Neurological Disorder (HAND) or cognitive impairment related to HIV and it is expected that he will have memory deficits as part of the cognitive deficits.  It is submitted that his evidence and any inconsistencies should be viewed by the Tribunal as reasonably consistent with HAND and not as deliberate lies or inconsistencies. It is also submitted that those inconsistencies which are extraneous to the applicant’s core claims (ie the timing of the applicant and [Mr A] house sharing arrangements) should not be considered material or deliberate.

·With regard to the dates that the applicant and [Mr A] started living together, it is acknowledged that their evidence was inconsistent, but submitted that this is not a material issue.  They now clarify that the applicant was leasing his address with another person until 2010 and after that [Mr A] moved in. Prior to this, [Mr A] would visit the applicant and stay overnight several times a week when in Australia.

·Information is submitted that [Mr A] suffered a head injury in [an] accident in India in 2014 and subsequently suffered dengue fever in 2015. He submits the dengue fever had an even more pronounced impact on his memory than the head injury. It is submitted there is a plausible link between a significant head injury and memory loss issues, and that dengue has brain effects in some cases. The Tribunal is directed to articles submitted in support of this.  [Mr A] has not sought medical treatment for either of these events in Australia. It is submitted that he will seek reports relating to these events when in India in June/July. It is submitted that these explanations should provide pause for concern about the reliability of his evidence but not about his truthfulness.

·It is submitted the applicant and witness’s evidence is that they have lived together since 2010 after or around the time he became ill with HIV, and that other people have stayed at the premises for periods of time since then also.

·Regarding the applicant’s contacts with his family it is submitted that their evidence is consistent and maintained, ie. that the applicant has no contact with his family.  The applicant does not dispute the movement record information provided by the Tribunal but denies knowledge of his brother or father’s travel to Australia. His evidence provided at the hearing about his uncle’s visit is reiterated and the submission refers to him as [Variation 3 of Mr C]. (Searches by the Tribunal for movement records in that name provide no result.) The submission argues that the record of file note referring to [Variation 2 of Mr C] meeting his nephew in Australia and leaving behind a son, may be correct in that the applicant has no direct knowledge of a cousin in Australia as he has no contact with his family, but it is possible he has one. The applicant maintains that he has not met his father in Australia and has not left Australia since 2004 (sic). He maintains he has not met his brother since his brother departed Australia in 2004. It is submitted that [Mr A] has also not met any of [Variation 3 of Mr C], [Variation 2 of Mr C] or [Variation 1 of Mr C] in Australia.

·A bundle of medical reports are provided relating to the status of the applicant’s health condition, including an October 2012 report by [a] Clinical Neuropsychologist, Neuropsychology Unit, of [Hospital 1], suggesting a diagnosis of HIV dementia at that time;  records of visits to [Hospital 1] Immunology Clinic in 2017 and 2018; IHMS medical records following his release from immigration detention in 2015, letter dated [May] 2018 from [a doctor], confirming the applicant’s current HBV status and that his viral loads were particularly high; and a report dated [May] 2018 from [Dr E], the applicant’s treating HIV specialist.  Particular attention is drawn to the report of [Dr E] which refers to the applicant’s poor adherence to anti-retroviral therapy, which has led to poor HIV and HBV outcomes.  [Dr E] concludes that the applicant remains in a state of virological failure for HIV-1 and HBV as well as advanced immunodeficiency , underpinned by haphazard adherence which is not sufficiently explained by known cognitive impairment. This is in spite of regular clinic attendance for intensified multidisciplinary monitoring and counselling at a tertiary level HIV facility, and continuing access to the latest approved antiretroviral agents. Ultimately, [Dr E] rates the applicant’s overall current medical prognosis as ‘poor, with a life expectancy probably best measured in years rather than decades’.

·The applicant’s submissions conclude:        

The medical reports underscore the jeopardy the applicant faces should he be forced to return to India.  He has struggled with virological suppression with the best service and treatment available here, with the support from his friend [Mr A] and access to support services available at [Hospital 1].  He would have none of these in India.  He would not have the support of his family. He would have minimal support from the sparse and indifferent medical services available in India and in an environment where HIV is much more stigmatised.

Given that HIV is written on his behaviours  - via HAND- and on his body often – via outbreaks of various infections – his HIV will be impossible to hide.

….confidentially and privacy in Indian medical settings are less the norm than here.

Without support from family and friends, and in the context of the lack of social services and supports in India, [the applicant] will be subject to convention based harms:  when his HIV condition is disclosed and he suffers discrimination and stigmatization due to HIV (whether [it] is health, housing, social, employment, education, or any other relevant setting); when he is unable to work due to illness and discrimination based on his HIV status (whether due to unwanted disclosure, or evidence from his appearance) when he becomes too ill to look after himself which, given his current trajectory, he inevitably will; and when his family and social network refuses to provide him with ordinary social supports due to HIV discrimination in the context of an already poor relationship.

We submit the harm [the applicant] will face amounts to persecution and/or significant harm within the meaning of the Act and that his fears are well supported by country information provided in earlier submissions.

·     Various articles describing medical conditions referred to in the submissions are attached, including articles relating to HIV associated neurocognitive disease (HAND); Cognitive impairment in patients with AIDS; articles on pill phobia; Cognitive Impairment in HIV; Traumatic Brain Injury (TBI); and Neurological complications of dengue fever.

·     Photographic images of outbreaks of the applicant’s infections.

Hearing 2 October 2018

1. At a further hearing convened by the Tribunal, the applicant confirmed that the individuals named as his brother and parents in the Tribunal’s invitation to comment were in fact his brother and parents, but he maintained to the Tribunal that he did not see or speak to them during their visits.   He stated he did not know of any of these visits prior to the information being put to him for his comment.  The Tribunal put to the applicant that the issue for the Tribunal is whether it accepts that he is being truthful about this.

2. It noted that he previously provided information, in the statement lodged with the application and a Statutory Declaration made in April 2015 that he contacts his parents every 3-6 months or twice a year but they have little communication. The Tribunal put to him that it may find his claims to the Tribunal of no family contact is inconsistent with these statements and the evidence of his parents and brother’s recent visits. The applicant maintained that he did not know of these visits nor see his parents or brothers while they were in Australia. He agreed that he did attempt to call his family every 3-6 months but he never gets any interest or attention from them.  When asked why he makes contact he said he wants them to care but they don’t.  He gets homesick and misses his family sometimes and this is why he tries to contact them. 

3. The Tribunal asked the applicant about his [social media] accounts.  He confirmed that he has several accounts, because he forgot his password and so opened up more than one.  He showed the Tribunal his phone at the hearing and referred to family members who are friends with him on [social media], but said he makes few posts.  He confirmed his niece is amongst his [contacts].

4. The Tribunal put to the applicant its concerns about the late claim of family violence in his relationship with his family and failure of his witness to mention anything about this at the last hearing and that this may cause the Tribunal to have some concerns about the truthfulness of this claim.  In response the applicant stated that he has not told anyone about the family violence history, including his friend [Mr A] or his close friend in India. The representative also confirmed that the matter was not included in previous submissions because it only came up during the break at the last hearing.

5. The applicant’s representative submitted that, while on one view it may be difficult to accept that the applicant’s parents would come to Australia and not see him, on another view, if the Tribunal were to accept the applicant is being truthful, their travel to Australia and not seeing the applicant supports his claims that they are estranged from him and would not provide him support upon return to India.

6. The Tribunal asked about the evidence from psychiatrist [Dr F] that was discussed at the last hearing. The applicant confirmed that he is still seeing [Dr F] and last saw her last month.  The representative confirmed that this report had been sought and they would chase it up and provide it.  

7. On 17 October 2018 the Tribunal received a submission from the applicant’s representative addressing recent developments in law and judgements in India relevant to the applicant’s claims. It argues in respect of the HIV/AIDS (Prevention and Control) Act 2017 there has been criticism of its true effect on preventing discrimination and stigmatisation against people living with HIV/AIDS in India. It is not clear where the money will come from to establish state Ombudsman to investigate violations of the law, and the obligation on states to provide ART treatment is qualified by ‘as far as possible’ and this is not therefore a statutory obligation.  Regarding the recent Supreme Court decision on s377 of the Penal Code, it is argued that this has not changed societal attitudes which will take some time and the decision is not supported throughout India. The submission maintains that applicant will face stigma and discrimination in access to health care and face persecution on the basis of his presumed or imputed homosexuality arising from his HIV status and relies on earlier submissions.

8. The submission also addresses the issues of the applicant’s contact with his family, name of his uncle, and social media contact with family arising during the hearing.  It is reiterated that the applicant has no knowledge of his brother’s visit to Australia in 2018 and has not had any contact with his family about this visit. Information is provided to the Tribunal of a [social media] page relating to a person with the applicant’s brother’s name who is [an occupation] and the [organisations] referred to on the page correspond to his brother’s background. It is submitted that there are numerous reasons why he may have visited Australia other than to visit the applicant. It is also submitted that the fact that he and the applicant’s parents visited Australia and did not contact the applicant supports his claims of their estrangement from him and likelihood they will not support him in India. Regarding the applicant’s claimed visit from his uncle, it is argued that he may have used a longer name, but the applicant is not familiar with what they may be for it to be verified. It is submitted that the applicant only used phone calls to communicate with his family in the past and has no evidence of this.  He has never communicated with them through social media.  The only family member on his [social media] is his niece, and he has not seen her since he was in India and she was very young and has never messaged her since she [contacted him] on [social media]. The existence of two [social media] pages in his name is explained in the submission.

9. On 8 November 2018, the applicant’s representative provided a Report from [Dr F], Senior Staff Specialist Psychiatrist, [Hospital 1], dated [November] 2018.  The report details the applicant’s history of being seen by HIV Psychiatry since July 2016. Since this date he has been referred a further two times, in August 2017 and July 2018. The report provides details of assessments relating to his cognitive condition and confirms a past assessment of significant cognitive impairment of a pattern typical of the cognitive impairment associated with HIV and while he cognitively improved following hospital admissions, he has subsequently been referred to the psychiatry service two more times for non compliance with his medication.   The report concludes that in light of his history, from a psychiatric point of view nothing further can be done to improve his medication adherence and he remains at risk of opportunistic infections and a return of significant cognitive impairment.

   Independent Information

10. Information obtained about the current state of affairs regarding HIV and AIDS in India provided from the AVERT website (a global organisation providing information and education on HIV and AIDS) indicates that as at 2016, there are 2.1 million people living with HIV in India.  50% of adults are on antiretroviral treatment.  India has the third largest HIV epidemic in the world, concentrated among key affected populations including sex workers and men who have sex with men. Despite the availability of free antiretroviral treatment, uptake remains low as many individuals face difficulty in accessing clinics. Although elimination of stigma and discrimination has been a major focus of the National Control Program (NACP-IV) people living with HIV and AIDS continue to experience high levels of discrimination in a variety of settings including households, community and workplaces.[1]

    [1] >

    Regarding access to treatment, information on AVERT states:

    Free antiretroviral treatment (ART) has been available in India since 2004. At ART clinics, people living with HIV can access HTC, nutritional advice and treatment for HIV and opportunistic infections. Patients are required to take a CD4 count test every six months. In 2016, 50% of adults eligible for ART received treatment, rising from 36% in 2013. Despite the rise, the number of people on ART remains low. Many people living with HIV have difficulty accessing the clinics, emphasising the importance of initiatives such as the Link Workers Scheme.
    
    The introduction of the new 2013 WHO treatment guidelines has made many more people eligible for ART, forcing treatment access to be a priority area. NACP-IV aims to make second-line ART free, although a shortage of both first-line and second-line ART has become more commonplace in recent years. [2]

    [2] treatment drugs are reportedly prohibitively expensive on the free market, with costs reported as around Rs15,000 per person per month, in contrast to Rs5,500 per person per year for first line and Rs15,000 per person per year for second line drugs.[3]

    [3] ‘NACO to include third line therapy for drug-resistant HIV patients’ 2014, DNA, 23 March < Accessed 24 October 2014 <CX1B9ECAB6550>

    67.On HIV stigma and discrimination:

    The NACP-IV has made the elimination of stigma and discrimination a major focus. In early 2014, an HIV/AIDS Bill was finally passed after being submitted in 2006. This prohibits discrimination in employment, education, healthcare, travel and insurance. Moreover, it recognises that a person living with HIV has the right to privacy and confidentiality about their HIV status.
    
    However, people living with HIV and AIDS in India continue to experience high levels of discrimination in a variety of settings including households, the community and workplaces.
    
    Stigma and discrimination are also very common within the healthcare sector. A 2013 study of doctors, nurses and ward staff in government and non-government clinics in Mumbai and Bengaluru found discriminatory attitudes were common. This included a willingness to prohibit women living with HIV from having children (55 to 80%), endorsement of mandatory testing for female sex workers (94 to 97%) and surgery patients (90 to 99%), and stating that people who acquired HIV through sex or drugs “got what they deserved” (50 to 83%).
    
    The study recommended further intervention programmes targeting healthcare providers to address fear of transmission, improve universal precaution skills, and involve people living with HIV at all stages of the intervention to reduce symbolic stigma and ensure that relevant patient interaction skills are taught. [4]

    [4] >

    Regarding funding the HIV response in India, AVERT notes that the vast majority of the NACP-IV budget (68%) is allocated to HIV prevention, with 31% going to treatment, care and support. In recent years, India’s domestic funding for its HIV response has decreased, falling by 22% between 2014/15 and 2015/16, equivalent to USD$948 million.

11. India is recognised as having made significant progress in tackling its HIV epidemic, compared especially with other countries in the region.  A major reason for the country's success has been the sustained commitment of the Indian government through its National AIDS Control Programme, which has been particularly effective at targeting high-risk groups such as men who have sex with men, sex workers and people who inject drugs.  However, stigma and discrimination remains a significant barrier preventing key affected groups and those at high risk of HIV transmission from accessing vital healthcare services.[5]

    [5] >

    The 2017 US Department of State Country Report on Human Rights Practices states relating to HIV and AIDS Social Stigma:

    The number of new HIV cases decreased by 57 percent over the past decade. The epidemic persisted among the most vulnerable populations: high-risk groups, which include female sex workers; men who have sex with men; transgender persons; and persons who inject drugs.

    Additionally, antiretroviral drug stock outages in a few states led to treatment interruption. On April 11, the government passed the HIV and AIDS (Prevention and Control) Bill. The bill is designed to prevent discrimination in regards to health care, employment, education, housing, economic participation, or political representation.

    The National AIDS Control Program prioritized HIV prevention, care, and treatment interventions for high-risk groups and rights of persons living with HIV.

    The National AIDS Control Organization worked actively with NGOs to train women’s HIV/AIDS self-help groups.

    Police engaged in programs to strengthen their role in protecting communities vulnerable to human rights violations and HIV. [6]

    [6] "Country Reports on Human Rights Practices for 2017 – India", US Department of State, 20 April 2018,  p49

12. The US DOS Report also states that the law and regulations prohibit discrimination with respect to employment and occupation, with respect to race, sex, gender, disability, language, sexual orientation, and/or gender identity, or social status. The law does not prohibit discrimination against individuals with HIV/AIDS or other communicable diseases, color, religion, political opinion, national origin, or citizenship.[7]

    [7] Ibid, p54

13. According to UNAIDS,

    In 2016, India had 80 000 (62 000 - 100 000) new HIV infections and 62 000 (43 000 - 91 000) AIDS-related deaths. There were 2 100 000 (1 700 000 - 2 600 000) people living with HIV in 2016, among whom 49% (40% - 61%) were accessing antiretroviral therapy.[8]

    [8] >

    An article in the Hindu in 2017, states that for the first time since the global onset of the HIV/AIDS epidemic, the scales have tipped in favour of patients. The latest UNAIDS report, released on Thursday, reveals that more than half of all People Living with HIV (PLHIV) now have access to HIV treatment.[9]

    [9]Vidya Krishnan, 50% of HIV-infected get treatment now: UNAIDS, The Hindu, July 20, 2017,   >

    In May 2017, UNAIDs reported that India committed to provide HIV treatment to all who need it:

    There are 2.1 million people living with HIV in India, which has the third largest HIV epidemic in the world. On 28 April, during an event in New Delhi, Jagat Prakash Nadda, the Minister of Health and Family Welfare, announced a new test-and-treat policy that commits to providing access to HIV treatment for everyone living with HIV in the country. Prior to the change in policy, people living with HIV could only access antiretroviral medicine for free if their CD4 cells had decreased to less than 500 cells/mm³.

    Mr Nadda also said that the ministry’s 90–90–90 strategy will identify 90% of people living with HIV, place 90% of people identified as living with HIV on treatment and ensure that 90% of people on treatment have sustained viral load suppression. “This strategy will offer us an opportunity to work towards our commitment made during the United Nations High-Level Meeting on Ending AIDS.”

    “The Government of India is showing bold leadership and commitment to people living with HIV,” said Steve Kraus, Director of the UNAIDS Regional Support Team for Asia and the Pacific. “This new policy will bring life-saving treatment within reach of more than one million people living with HIV. It will keep individuals, families and communities healthy and productive and ensure that India ends its AIDS epidemic by 2030.”

    To rapidly scale-up treatment, India will rely on its network of facilities spread across the country providing HIV services. Rolling out the new policy will also entail strengthening the procurement and supply chain management system as well as sustained community participation.

    According to the country’s national AIDS programme, annual AIDS-related deaths declined by 54% between 2007 and 2015, while new HIV infections dropped by 32%. As more people living with HIV follow Veena onto treatment, the double benefits of antiretroviral medicines are expected to lead to a further decline in deaths and new HIV infections.[10]

    [10] April 24, 2017, Pranab Mukherjee, the President of India, approved new legislation that bans discrimination against people who are HIV-positive or who have AIDS.[11] 

    [11] CXC9040666408: "India: Law Bans Discrimination Against AIDS Patients", Global Legal Monitor, 27 April 2017, (Opens in a new window)  Jonathan Niznansky,  India President Approves Law Banning Discrimination Against AIDS Patients, PAPER CHASE (Apr. 25, 2017).

    The law was formally introduced in 2014 as the Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Bill (the Bill) by Ghulam Nabi Azad, then Minister of Health and Family Welfare (The Bill, No. III, 2014, PRS LEGISLATIVE RESEARCH.).  It was approved by the two houses of the legislature earlier this month. Alexis Wheeler, India Parliament Approves HIV/AIDS Prevention Bill, PAPER CHASE (Apr. 13, 2017); Manveena Suri, India to Ban Discrimination Against People with HIV/AIDS, CNN (Apr. 12, 2017). The legislation has 50 clauses, arranged in 14 chapters that cover a number of topics, including penalties for violation of its provisions.

    According to an explanatory statement by Azad attached to the text of the Bill, the purpose of the legislation is

    to address the issue of stigma faced by those infected by HIV and AIDS, to ensure confidentiality and privacy while providing HIV and AIDS related services and to strengthen the existing National AIDS Control Programme by bringing in legal accountability. It is also important that existing establishments, both private and public, recognise the need to safeguard the rights of people infected with HIV/AIDS, particularly, women and children. (Statement of Objects and Reasons, ¶ 3 (Jan. 31, 2014), the Bill, p. 17 ¶3.)

    The Bill’s provisions include prohibitions of specific acts of discrimination in education, housing, and employment; articles specifying that HIV testing, treatment, and status disclosure require informed consent; clauses establishing safe working environments; and measures on the creation of mechanisms to redress grievances and investigate complaints. (Id. ¶ 4; Suri, supra.)

    Penalties

    The penalties established in the Bill include imprisonment for from three months to two years and/or a fine of up to 100,000 rupees (about US$1,550) for persons convicted of publicly advocating hatred, discrimination, or violence against protected persons or propagating feelings likely to expose them to hatred, discrimination, or violence. (The Bill, arts. 4 & 37.) Disclosing the HIV status of a protected person is also subject to a 100,000 rupee fine.  (Id. art. 39.) The Bill defines protected persons as those who are HIV-positive or who ordinarily live or did live with a person who is HIV-positive. (Id. art. 2 (s).)

    The Bill provides that each state must appoint an ombudsman who is empowered to hear complaints related to the provisions of the Bill and to issue relevant orders. (Id. Ch. X.) The penalty for refusing to comply with an order of an ombudsman within the designated time limit is a fine of up to 10,000 rupees (about US$156); if the failure to comply is ongoing, there may be an additional fine of half that amount each day the noncompliance continues. (Id. art. 38.)

    The legislation also contains a prohibition of mistreatment of whistleblowers in cases related to the issue of treatment of those with HIV or AIDS. The protection covers people who make complaints, bring proceedings, give information, or serve as witnesses in related proceedings. (Id. art. 40.) Judicial Magistrate First Class Courts have jurisdiction to hear cases of offenses defined in the Bill. (Id. art. 41.)

    Background

    The United Nations AIDS office estimates that as of 2015, about 2.1 million people were living with HIV in India and that 68,000 had died of the disease. (India: HIV and AIDS Estimates, UNAIDS (last visited Apr. 27, 2017).) As of December 2016, one million people in India were receiving treatment for HIV infection. (Id.) The number cited in Azad’s statement attached to the Bill in 2014 was 2.39 million people infected with HIV. He added that the epidemic was largely confined to high risk individuals, such as female sex workers, men in sexual relationships with other men, and intravenous drug users. He argued that it was important to provide services including treatment for sexually transmitted infections, testing for HIV, condoms, and clean needles to prevent the epidemic from spreading to the general population. (Statement of Objects and Reasons, supra, ¶1.)

    Reactions

    India’s current Minister of Health and Family Welfare, Jagat Prakash Nadda, called the law “historic”; the legislation was also applauded by organizations that advocate for the rights of those with HIV. Steve Kraus of the U.N. AIDS Regional Support Team for Asia and the Pacific said that the “legislation begins to remove barriers and empowers people to challenge violations of their human rights.” (Suri, supra.) According to Huidrom Rosenara of the India HIV/AIDS Alliance, “there have been many incidents of discrimination in hospitals, schools, and communities,” and even though the rate of such incidents has gone down in recent years, they still occur. She added that the legislation “is a long awaited and positive move. We are very optimistic about it as it speaks volumes about the political commitment.” (Id.)

    76.Despite the passage of this landmark and significant legislation, there has been criticism of its effectiveness and concerns about whether it will end the widespread and deeply held fears, stigma and discrimination faced by people with HIV/AIDS.[12] 

    [12] Amrit Dhillon , India passes HIV/AIDS anti-discrimination law but stigma endures, 18 April 2017, Sydney Morning Herald,

    77.In an article Financial burden of health services for people with HIV/AIDS in India[13] examined the financial consequences of HIV care and treatment on individuals and their households.

    [13] N. Kumarasamy, K.K. Venkatesh*, K.H. Mayer* & Kenneth Freedberg,  Financial burden of health services for people with HIV/AIDS in  India  Indian J Med Res 126, December 2007, pp 509-517 : most recent Country Report on India states the following about treatment of lesbian, gay, bisexual, transgender or intersex (LGBTI) people in India:

    3.54 People who are lesbian, gay, bisexual, transgender or intersex (LGBTI) are often subject to physical and emotional abuse by their families and wider society. In 2018, the New York Times interviewed gay and transgender people across India about their experiences. They reported sexual assault, shunning by parents, social isolation, employment discrimination and vulnerability to police abuse.

    3.55 Until a September 2018 Supreme Court judgement, Section 377 of the Penal Code criminalised homosexuality. LGBTI people claimed that, while the law was not regularly enforced, it was used as a way to extract bribes or as a means of extortion. Homosexuality is now legal in India but LGBTI groups say this has not changed societal views on LGBTI people. …

    3.58 Local sources say some parents accept their child being gay, as long as they still get married to opposite sex partners. Class also plays an important role: wealthier LGBTI people can live openly in cities and are accepted. For the ordinary person, particularly in rural areas but also in urban areas in many cases, it is difficult to live openly and many face discrimination in accessing housing and employment. …

    3.60 DFAT assesses that people who openly identify as lesbian, gay, bisexual, transgender or intersex face a moderate risk of official and societal discrimination and may face societal violence. The removal of section 377 of the Penal Code, while a victory for gay men in particular, does not necessarily prevent or reduce widely-held anti-gay and anti-LGBTI sentiment.

    FINDINGS AND REASONS

    79.A summary of the relevant law is set out in an Attachment to this decision.  In assessing the applicant’s claims, the Tribunal has taken into account the information in the Department’s file including his application for the Protection visa, the documents and information he provided to support his claims, his evidence to the delegate at interview and the evidence he gave when he appeared before the Tribunal and documents and information submitted to the Tribunal in support of the review.  It has also had regard to other independent information regarding HIV and AIDS in India.   

    80.When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of credibility of the applicant.  When doing so the Tribunal is mindful of the difficulties faced by refugee applicants.  In this regard it has taken into consideration the Tribunal’s Guidelines on the Assessment of Credibility.  In the applicant’s case, the Tribunal has also taken into consideration the impact of the applicant’s health condition and illness in considering the reliability of his evidence, including the impact on his psychological health and cognitive capacity.  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 mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).

    Nationality

    81.The applicant has not presented a passport to the Department or Tribunal and claims that he lost the Indian passport on which he entered the country. Departmental records indicate he arrived in Australia in June 2003 on an Indian passport and has not departed Australia since.    On the available evidence, including that which is referred to in the Department decision record and the applicant’s claims, and in the absence of any other evidence to the contrary, the Tribunal accepts that the applicant is a citizen of India and India is his country of nationality and the receiving country for the purposes of this assessment of protection obligations. 

    82.Given that he does not hold a valid and current Indian passport the Tribunal is satisfied that he does not have a right to enter and reside in any other country for the purposes of s36(3) of the Act.

    Assessment of claims

    83.The applicant’s fears harm upon return to India due to his diagnosis with HIV in Australia in 2009.  He also fears harm on the basis that he will be perceived to be homosexual because of his HIV status, and will face harm on that basis also. The harm he fears is that due to extreme discrimination and stigma from the wider community and his family, he will be unable to obtain employment or accommodation and therefore will be unable to subsist or be able to afford his HIV medication which he needs to live.  The applicant claims that he is estranged from his family and he fears their reaction if they knew about his HIV status. He does not believe they will support him. He does not believe he can relocate from his home area to any other part of India because he is not familiar living in any other place in India and the problems he would face would be everywhere.

    Applicant’s HIV status and present prognosis

    84.There is no dispute, and it is clearly supported by medical evidence and reports of [Dr B], [Dr E] and other medical reports provided, that the applicant was diagnosed with HIV in Australia in 2010.  More particularly, in respect of his medical history since diagnosis and current health condition and prognosis, the Tribunal accepts that that applicant has a history of poor adherence to medication and has suffered numerous episodes of HIV related illnesses.  It accepts the opinion of [Dr E] in his report dated May 2018 regarding the applicant’s current medical state, described as ‘in a state of virological failure for HIV-1 and HBV as well as advanced immunodeficiency’ and that ‘future development of further resistance to anti retrovirals is at least probable with a high risk of morbidity and/or mortality from an HIV/AIDS –related complication’ … ‘irrespective of the treatment setting’.  The Tribunal also accepts the findings in [Dr F]’s report where she states, given his history of non compliance with medication, that he remains very much at risk of further opportunistic infections and a return of significant cognitive impairment.

    85.Therefore, on the available medical evidence, the Tribunal accepts the applicant is HIV positive, but also that he has a history of poor adherence to medications, has already suffered a number of HIV related medical complications and appears to have some degree of cognitive impairment and the prognosis for the applicant has been determined to be ‘poor’. 

    86.The medical evidence ([Dr E], report of [May] 2018) also establishes that he is currently on a second line intensified regimen in reference to current treatment guidelines.

    Sexuality

    87.The applicant claims he is not gay.  He confirmed this in his oral evidence to the Tribunal, and the Tribunal notes from the medical reports provided that this is consistent with the history disclosed to numerous health providers.  There is no other evidence before the Tribunal to contradict the applicant’s claim regarding his sexuality. 

    88.On the evidence before it, the Tribunal accepts that the applicant does not identify as homosexual.  It accepts that he fears harm on the basis that he may be perceived as homosexual because of his HIV status and its association with homosexuals, or men or who have sex with men in the Indian context.

    Family and social support

    89.The applicant has been living in Australia continuously since his arrival in June 2003,  a period of over 15 years now. He claims he is estranged from his family, which comprises his parents and two [siblings].  He claims that he has had limited contact with any of these relatives, they have provided him no financial or emotional support and has not seen any of them since he has been in Australia.  He claims that they will not support him if he returns to India because of the stigma of HIV and his long standing estrangement from them.  During the hearing before the Tribunal, the applicant also made claims of a history of family violence dating back to his childhood and that he has not been on good terms with his family even prior to his diagnosis.  Other than his oral claims at hearing, no other evidence in support of this was provided.  

    90.The Tribunal had some concerns about the credibility and reliability of the applicant’s evidence relating to these claims.  These concerns arise from inconsistencies, contradictions and omissions in the evidence of the applicant and his witness, [Mr A] about their living arrangements and efforts to contact family and movement record evidence that emerged in the course of the review.

    91.The applicant claims his main emotional and financial supporter since his diagnosis has been his friend [Mr A], with whom he lives. However, [Mr A]’s evidence to the Tribunal was problematic for a number of reasons.  There were significant inconsistencies between [Mr A]’s own oral and written evidence, and between his and the applicant’s evidence about when they started living together, and inconsistencies in the evidence of [Mr A]’s contact with the applicant’s relatives in India.  These inconsistencies were put to the applicant for comment and the Tribunal has considered the response and submissions made (detailed above).   The applicant acknowledged the inconsistencies but argued that it can be explained by their respective health conditions affecting memory and recollection, and in any event is not material to the claims at issue. The Tribunal accepts that the precise date the applicant and [Mr A] commenced living together is not critical or material to the claims under consideration but it considers it is relevant to the issue more generally of the reliability and credibility of the applicant’s claims about his relationship with his family, and specifically whether he is estranged from his family as claimed. 

    92.The Tribunal was troubled by inconsistencies about these matters in [Mr A]’s evidence and contradictions between his Statutory Declaration and oral claims and the applicant’s evidence and then also the evidence that emerged of  movement records indicating visits by the applicant’s parents’ to Australia in 2015 and two visits in 2018 by his brother.  It has carefully considered the applicant’s response when this was put to him for comment, and his oral evidence when discussed with him at the second hearing. The Tribunal observes that the applicant has adamantly and consistently denied knowledge of these visits or that he met any of these relatives here. 

    93.While the Tribunal remains troubled by the coincidence of these visits of his immediate family members, it acknowledges that there are references in the various medical reports information to the applicant’s family and social support that appear to be consistent with, and corroborate, his claims.  For example, [Dr E]’s report of [May] 2018 stated that ‘it is difficult to get a clear picture of the applicant’s social engagement and living arrangements’, and a psychology consult report by [a] Clinical Psychologist, in May 2017 makes reference to ‘no contact with family of origin’. 

    94.The Tribunal, with the applicant’s consent, attempted to make direct contact with the applicant’s brother by telephone and email following the second hearing.  There was no response despite several attempts by telephone over different days, and also no response to the email correspondence sent by the Tribunal. 

    95.Therefore, having considered all of the evidence before it, and despite still being troubled by the evidence of the parents and brother’s visits, the Tribunal considers that it cannot confidently conclude that the applicant is not estranged from his family as claimed and for this reason it will proceed to consider his claims on the basis that it is possible, if not certain, that the applicant is estranged from his family of origin in India and will not be supported by them upon return. 

    96.The Tribunal notes the applicant’s claims about the history of family violence dating back to his childhood.  Notwithstanding that these claims emerged so late in the process, and sparse detail has been provided,  the Tribunal is prepared, for present purposes, to give him the benefit of doubt and accept that his relationship with his family in India is complicated and may have involved a history of family violence.  This indicates the estrangement from his family predates his HIV diagnosis. It accepts that a background of an already poor family relationship would likely only exacerbate his family’s unwillingness to support him upon return because of the stigma attached to his HIV status, given the broader environment of hostility and discrimination against the illness in India. 

    Well-founded fear of persecution for a Convention reason

    97.The applicant fears that the stigma and discrimination towards people with HIV in India would result in him being unable to obtain employment and accommodation and being unable to subsist to pay for food or medication, and that without medication his health will deteriorate.  He also fears that he will be perceived to be homosexual as a result of his HIV positive status and suffer discrimination and physical harm on that basis because of attitudes to homosexuality in India.

    Convention nexus – particular social group

    98.The Tribunal has considered whether the applicant’s claims fall within one or more Convention grounds for the purposes of s36(2)(a). It accepts that ‘people living with HIV’ constitute a particular social group in that members of the group are identifiable by a common attribute (HIV positive status), that attribute is common to all members of the group (and is not the shared fear of persecution) and the attribute distinguishes the group from society at large.

    99.The Tribunal also accepts that homosexuals or ‘men who have sex with men’ is a particular social group, and that the applicant’s fear of harm on the basis of being imputed to belong to this group brings him within the convention ground of particular social group on this basis.

    Serious harm

    100.The Tribunal has next considered whether the applicant faces a real chance of serious harm for reasons of his membership of one or both of the above particular social groups.  The Tribunal notes that the applicant concedes, in submissions made on his behalf, that lack of availability or access to medication or adequate treatment in and of itself does not amount to persecution, even if inability to obtain appropriate medication may lead to his probably eventual death.  However it is submitted that the harm the applicant will suffer is that he will be denied capacity to subsist, and access necessary medication he needs to live, because he will be ostracised for his HIV status; and he will have little or no control over disclosure of his status; and he will have no family or community support.  The Tribunal accepts that the harm feared by the applicant, being unable to obtain employment and accommodation and unable to pay for food and medication, is capable of amounting to serious harm within the meaning of that term in s 5J(5) of the Act.

    Real chance of facing serious harm    

    101.The Tribunal accepts that the applicant has a genuine subjective fear of serious harm upon return to India and that he fears the harm because of his health status and that his estrangement and lack of support from his family is also attributable to his health status.  He told the Tribunal he does not know where he will go and how he will manage to live and how he will obtain the medical care he needs. He states that he is fearful because of the stigma and discrimination in India against people with HIV and that he will face such discrimination when he tries to seek employment, accommodation and medical care. He states his family will also not offer him support because of his HIV status.  He has also stated that he fears he will be discriminated against and harmed because of the perception due to his HIV positive status, and being unmarried, that he is homosexual. 

    102.The Tribunal must however also be satisfied there is an objective basis to this fear, and in that context it has considered available country information. This information indicates that India has the third largest HIV epidemic in the world, with a population of over 2.1 million people living with HIV (in 2016) of which only 50% are on anti-retroviral treatment.  Despite this, the information indicates significant progress has been made  in recent years by the Government’s programmes (for example the 50% on ART in 2016 rose from 36% in 2013 and in May 2017 the government announced a commitment to provide HIV treatment to all who need it), relative to many other countries in the region.  However, the challenges posed by the sheer numbers are still huge. The existence of the programme and the commitment of the Government to address access to treatment for all persons living with HIV, at least as an aspiration, suggests that there is not official discrimination against people with HIV. 

    103.The Tribunal notes that the Government of India has a committed National AIDS Control Programme budget, but two thirds of this is allocated to HIV prevention and only one third goes towards treatment, care and support. The Tribunal also notes that the Government’s commitment to access to ART is unlikely to extend to the specific classes and combination of drugs the applicant has been receiving in Australia, and in this respect it notes the evidence of [Dr B] and [Dr E]’s report about the applicant’s current regimen and history of resistance to other classes of drugs. Therefore, despite the existence of a programme of free access to ART in India, the applicant’s particular circumstances would likely not fit within this programme given the evidence that he is already on a second line, intensified treatment regimen and he will most probably have to source his treatment and medication outside the government programme. 

    104.The Tribunal accepts, on the available country information referred to above and in the applicant’s submissions, that there is a high degree of stigma and discrimination against people with HIV in the healthcare sector (see AVERT information); that stigma and discrimination is a significant barrier preventing access to treatment; and that people living with HIV/AIDS face discrimination and stigma in the context of employment and accommodation.

    105.The Tribunal has considered recent developments in law that signal a significant and positive development in this area, specifically, the passage of the HIV/AIDS (Prevention and Control) Act in 2017, which bans discrimination against people who are HIV positive or who have AIDS in a number of areas.   While the passage of this legislation is clearly a positive and well overdue development, the Tribunal accepts that the passage of the legislation of itself does not mean an immediate end to the discrimination and stigmatisation experienced by people living with HIV/AIDS.  It accepts that there have been criticisms of the impact and effect of the legislation, not the least of which is demonstrated by the failure to notify the Act for over a year and a half after it received Presidential assent.[14]  The Tribunal also considers it telling that the legislation took over 15 years to become law, discussion having first begun in 2002, and the need for it underscores the extent of the problem of discrimination in all of these areas, including employment, healthcare and education.[15]  

    [14] Health ministry finally implements HIV/AIDS Act 2017: All you need to know, India Today 11 September 2018 Suri,  India to ban discrimination against people with HIV/AIDS, CNN 12 April 2017 the Act signals a willingness by the State to prohibit such discrimination, the struggle for it to become law, and delays even since then to be notified, and other substantive reservations about enforcement[16], suggest that a lot remains to be done to ensure an adequate level of state protection from unlawful discrimination. 

    [16] Amrit Dhillon, India takes flawed first step towards ending HIV and Aids prejudice, 14 April 2017, The Guardian,   Tribunal considers that there are a combination of factors in the present case that act together to lead the applicant to face a real chance of being unable to subsist in India. These are the applicant’s particular medical state (including his history of poor adherence to medications and consequent poor prognosis and morbidity), the level of stigma and discrimination in the broader Indian society, his limited capacity to work because of his HIV condition and his psychological state, and the lack of family support due to discrimination in the context of a longstanding estrangement from his family.  

    108.The Tribunal accepts there is a real chance the applicant will face serious harm when his HIV condition is exposed and he suffers discrimination and stigmatization in the wider community to access healthcare, employment and accommodation.  It accepts that his family, with whom he has long been estranged, will also deny him accommodation or financial support because of his HIV status.  For these reasons he will not be able access food, shelter and clothing, and he will be denied a means of subsistence, because of his HIV-positive status. Despite the recent passage into law of an Act to prohibit discrimination against people living with HIV, in the absence of clear enforcement provisions and mechanisms, the Tribunal is not satisfied that the state can provide the applicant an effective level of protection against the harm he faces.

    109.The Tribunal accepts that the applicant faces a real chance of significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, threatening his capacity to subsist, within the meaning of s.91R(2) of the Act, because he is HIV-positive.  The Tribunal accepts that the applicant faces a real chance of serious harm in India in the reasonably foreseeable future due to his membership of a particular social group.  He cannot avoid this harm by relocating within India and he has no right to enter or reside in any third country.

    110.Additionally, the Tribunal accepts that the applicant, as an unmarried, single man in his [age], who is HIV positive, faces a real chance of physical harassment or ill treatment, on the basis that he may be imputed to be homosexual.  Despite the Supreme Court decision in September 2018 decriminalising homosexuality between consenting adults, the Tribunal accepts there has not been an immediate effect on societal views on homosexuality. The available country information supports a conclusion that homosexuals in India continue be at risk of official and societal discrimination and continue to be vulnerable to societal violence, and that the effect of the Supreme Court’s judgment does not necessarily prevent or reduce widely held anti-gay sentiment.[17]

    [17] DFAT Country Report on India 17 Otcober 2018, para 3.55, 3.60; see also UK Home Office, Country Policy and Information Note: Sexual Orientation and Gender Identity and Expression: India, October 2018.

    111.For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    DECISION

    112.The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Meena Sripathy
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

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

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

    but does not include an act or omission:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    …

    5J Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (b)     significant physical harassment of the person;

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

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

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

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

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

    5K  Membership of a particular social group consisting of family

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

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

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

    (i)the first person has ever experienced; or

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

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

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

    5L  Membership of a particular social group other than family

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

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

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

    (c)     any of the following apply:

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

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

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

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

    5LA  Effective protection measures

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

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

    (i)the relevant State; or

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

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

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

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

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

    ..

    36Protection visas – criteria provided for by this Act

    …

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

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

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

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

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

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

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

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

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

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

    …