1513428 (Refugee)

The Applicant, a citizen of Nepal, sought a protection visa. The dispute concerned the Applicant's claims that she would face harm if returned to Nepal, primarily due to her recent diagnosis of HIV and her status as a divorced woman. The matter came before the Federal Circuit and Family Court of Australia.

The legal issues before the court were whether the Applicant had established that she would be a refugee within the meaning of the *Migration Act 1958* (Cth) by reason of her HIV status and her status as a divorced woman, and whether these characteristics, individually or in combination, constituted a "particular social group" for the purposes of the Refugee Convention. The court was required to consider the availability and accessibility of HIV treatment in Nepal, the social attitudes towards individuals with HIV and divorced women in Nepal, and whether these factors would lead to persecution or harm that would engage Australia's protection obligations.

The court reasoned that the Applicant's HIV status, coupled with the limited knowledge, significant stigma, and inadequate treatment facilities for HIV in Nepal, created a real chance of substantial harm. The court also considered the Applicant's status as a divorced woman in Nepal, noting the associated stigma, lack of social support, and increased vulnerability to harm. The court found that the combination of these factors meant the Applicant would likely face persecution. The court applied the principles of international refugee law, focusing on the definition of a refugee and the concept of a "particular social group," which can encompass individuals sharing an immutable characteristic or a past experience, and who are perceived as a group by society.

The court found that the Applicant had established that she would be a refugee and remitted the decision to the Administrative Appeals Tribunal for reconsideration.