1621844 (Refugee)

[2020] AATA 2425

1621844 (Refugee) [2020] AATA 2425 (8 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621844

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Jane Marquard

DATE:8 April 2020

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 08 April 2020 at 1:48pm

CATCHWORDS

REFUGEE – protection visa – Thailand – particular social group – homosexual men – non-acceptance by family – fear of discrimination – complex medical needs – unavailability of new antiviral medication in Thailand – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5J, 5LA(2), 36, 65, 351

CASES
Chan v MIEA (1989) 169 CLR 379
MZXKX v Minister for Immigration and Citizenship [2008] FMCA 567
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

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

OVERVIEW OF APPLICATION FOR REVIEW

1. The applicant is a citizen of Thailand. He was born in [Village 1], Surat Thani in [year].

2. The applicant was diagnosed as HIV positive in 2010 while in Australia.

3. The applicant arrived in Australia as the holder of a [student] visa [in] May 2009. He was granted another student visa on 3 December 2009 valid until 15 March 2012. On 13 February 2012 the applicant applied for an Employer Nominated Scheme visa under the Regional Sponsored Migration Scheme. This application was refused on the basis of salary. The Migration Review Tribunal (MRT) affirmed the decision on 22 April 2014. The applicant returned to Thailand to visit his mother for a month in February 2014. After the MRT decision, he applied for ministerial intervention pursuant to s.351 of the Migration Act 1958 (the Act) on 20 May 2014. Two years later, on 26 April 2016, the Department advised that the Minister chose not to intervene.

4. The applicant then applied for a protection visa under s.65 of the Act on 13 May 2016.

5. On 14 December 2016 a delegate of the Department of Immigration (the Department) refused the application for a protection visa.

6. This is an application for review of that decision by the Administrative Appeals Tribunal (the Tribunal). The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. A summary of the relevant law is set out in Attachment A. An extract of the legislation is set out in Attachment B.

   CLAIMS AND EVIDENCE

   The evidence taken into account

7. In making findings in this matter the Tribunal has taken into account the evidence adduced to the Department and this Tribunal. The Tribunal has also considered independent sources relevant to Thailand.

   Documents provided to the Department/Tribunal

8. A summary of the documents provided to the Tribunal is set out in Attachment C.

   Summary of evidence before the Department

9. The applicant made claims and provided evidence in his application form and supporting documents. Information in his application to the Minister for ministerial intervention has also been provided to the Tribunal. A summary of his evidence from these sources is set out below.

10. The applicant states that he is a single homosexual man from Surat Thani. His father has passed away. His mother and [sisters] live in Thailand and he is in regular contact with them. He is a trained [Occupation 1]. He was [an Occupation 1] and part owner of a [business] called ‘[name]’ in Bangkok from 1996 to 2009. He travelled to Australia to study English and to get work experience as [an Occupation 1].

11. He became severely ill in 2010 and lost a large amount of weight. He attended a clinic and was diagnosed as HIV positive in Australia in 2010. He has been treated with antiretroviral therapy (ART) under [Dr A] since then. At the time of application his CD4 count was approximately [number]. He had been well since being on the treatment.

12. He claims that his home region is very conservative and his mother and the rest of his family do not know that he is homosexual. He said that his mother is old, in poor health and is very old-fashioned. He claims that he will be expected to marry and have children, and being homosexual in Thailand is ‘dreadful’, particularly in rural areas. He said that only a handful of partners and gay friends he had in Thailand were aware that he was gay.

13. He claimed that the medical facilities in his regional area are inadequate for his health needs. There are no HIV specialists near Surat Thani and he would need to travel to Bangkok which is over 600 kilometres away. There is also no sexual health clinic near his home so that regular check-ups would not be possible. He also believes that ‘top-line’ and current medication will not be available and that his health will suffer if he switches to the ‘30 baht government scheme’ as quality medicines are not available under this scheme. He claimed that one in three people will not receive ART. He has also been told by his doctor to adhere to his treatment regime to at least 95% or he will develop resistance.

14. He claimed that he would be denied subsistence and access to services, and that he will suffer arbitrary deprivation of life, cruel or inhumane treatment or degrading treatment or punishment. He said that the denial of services was based on discrimination. He said that his family would not support him because he is a homosexual man with HIV. Without treatment and support he would be too ill to work and would be forced to die in a temple, isolated from his community.

15. He also claimed that if he could access top-line treatment he would be unwilling to access treatment due to a fear his status would be discovered and this would cause ostracism from friends, family and the community. He said that people shun HIV positive people, do not serve them or talk to them and want nothing to do with them. He is also afraid of his mother being shunned because of him.

16. He also claimed that due to discrimination towards HIV positive people, he could not get a job if he becomes symptomatic or people find out that he is HIV positive. He is a trained [Occupation 1] but people would refuse [his services] if they discovered that he was HIV positive. He also referred to the fact that it would be difficult to find work at his age. He said as part of ‘MSM’, Men Who Have Sex with Men, he is part of one of the most stigmatised groups in Thailand.

17. He argued that his case was similar to the case of D v United Kingdom (1997) 24 EHRR 423, where a man was in the final stages of an illness.

18. He said that he could not relocate to Bangkok as he had no ties or contacts in Bangkok or resources to live there. He said that culturally families live together such that he could not live in another place.

    Decision of the Department

19. The Department noted that homosexual conduct in Thailand is not criminalised and that legislation bars discrimination against members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community. The Department also relied on country sources which suggest that the Thai government has taken strong measures to provide care, support and information to people suffering from HIV/AIDS, including offering a suite of drugs at reasonable prices and free health care.

20. The Department was not satisfied that there was a real chance of serious harm or a real risk of significant harm if the applicant were to return to Thailand.

    Summary of evidence before the Tribunal

21. The applicant appeared before the Tribunal to give evidence and present arguments on 17 December 2019 and 12 March 2020. [Dr A] gave evidence at the second hearing. An interpreter assisted the hearings and the applicant confirmed that he understood the interpreter clearly. A support person was present during the Tribunal hearing. The applicant also provided written submissions. A summary of the evidence provided is set out below.

    Background and family

22. The applicant confirmed that he was born in [Village 1], Surat Thani in [year]. He said that Surat Thani is a tourist destination, and [Village 1] is a small village outside the city. Both his parents were [occupations]. [Details of siblings]. His father has also passed away. His mother and [sisters] are still living in the [Village 1] region. One sister is married. He speaks to his mother and sisters once a week. He also has other relatives in the area. His older sister works in [a certain industry]. They are all living in the same family home he grew up in, and get an income from [work] and from funds provided by his brother-in-law. He has no family in Bangkok.

23. The applicant attended school in [Village 1], finishing both primary and secondary school. After that he graduated with a Bachelor [degree] from a university in Bangkok. He lived near the university with a female cousin and friends. He also opened a [business], so was working at the same time. He had training as [Occupation 1], and has [qualifications in that area] alongside his Bachelor’s degree. He said that his parents helped fund the [business] although it is cheap to open a simple family [business] in Thailand. He was [an Occupation 1] at this [business] from 1996 to 2009. He lived in Bangkok this whole time until he travelled to Australia. The [business] performed ‘ok’.

24. He said that after moving to Australia he lived with his relative, the support person at the Tribunal hearing. They are not biologically related, and in Thailand they use the word ‘relative’ loosely. He knew this person before he travelled to Australia. He has lived with her and her brother since he arrived in Australia. He has no other relatives in Australia, but has one other friend from the Thai [community]. The applicant has worked as [an Occupation 1] at a [business] in [suburb] since he arrived in Australia.

    Homosexuality

25. The applicant said that he first knew that he was homosexual when he was studying at university. He had not thought about it until then. He had a ‘good feeling with his male friends’, he liked to talk to them and to hang out with them and he did not really care about women. His friend teased him that he never had a girlfriend. He has never had a girlfriend.

26. His first sexual encounter with a man was while he was at university. He said that he was drugged and dragged into a hotel and had sexual intercourse, but he did not consent and did not like the experience.

27. He said that he later had a few consensual casual relationships with a number of men. They sometimes came over, but they did not live together. He did not have many relationships. He was asked if he ever had a special relationship with one man in Thailand, and he said that he did not. His mother hoped that he would be the head of the family and have children. For this reason he could not open up to his family. He said that even now his family does not know that he is homosexual. The Tribunal asked if after all this time they may know that he is gay and will not be getting married. He said that even now he is asked by his mother when he will get a girlfriend and he cannot tell them that he is gay, as his mother is opposed. He was asked if he had ever considered confiding in his mother and sisters as they are close, and care for him. He said that he knows their behaviour and what his mother has said about people with the ‘third sex’.

28. He was asked where he met the men he had relationships with in Bangkok. He said that they were friends from university or school. He did not mind disclosing his homosexuality to them, as they were gay, and were like him and chased after him. He himself kept it a secret and acted ‘normal’. He said that he got together with these men at private homes only. He did not go to hotels or gay venues such as bars or restaurants. He does not drink or smoke so does not like clubs.

29. He was asked if he told other friends who were not gay about his sexual orientation. He said that he did not. He did not tell the cousin he lived with, and nobody knew. He was asked how his cousin would not know if he brought men home. He said that it was ‘like they were just friends’. He did not tell his friends in Bangkok because he had a deep-seated feeling of rejection because his family would not accept him so he shut himself off and did not tell anyone. He said that he felt under pressure.

30. He was asked if there were areas of Bangkok where men go to meet other gay men. He said that there are, but he never went to these locations as he does not like busy environments. He said that he did not attend gay pride days or events in Bangkok. He did not use the gay mobile applications while in Bangkok as they did not exist then.

31. He was asked if his openly gay friends ever experienced any problems because of their sexual orientation. He said that maybe some, but they also did not want to be open about it. That was a long time ago and he has not been in touch. He was asked if he ever saw gay people experiencing any problems. He said that they get teased and sometimes people do not like them. He was asked if he ever experienced this. He said that he had not, because he kept his sexual orientation a secret and had not come out.

32. The applicant said that he has had two homosexual relationships in Australia. The first relationship lasted for two years. He met this man in the city[and] the man asked him for his telephone number. He saw this man every six weeks to two months. He would go to his residence in the city. He said that he is also currently in a relationship. They are ‘friends and do things together’ but are not that close. It is not at a ‘relationship level’ yet, but the future is uncertain. He has not attended gay events in Australia. Sometimes he has used gay apps[but] he has not contacted anyone. He said that he already has a person he is in touch with. He does not go to gay venues because they are too busy for him.

33. A few friends, such as the ones he brought to the Tribunal hearing, know that he is gay. Other friends in Australia do not know as he feels it is not necessary to tell them. He does not tell if not asked. If one of his friends were to ask him, he feels that he is brave enough to tell them as everything is equal in Australia. The people in the [business] he works at do not know that he is gay.

    Travelling to Australia

34. The applicant said that he came to Australia to study English. He studied English for two years.

    Diagnosis

35. The applicant told the Tribunal that he was very sick in 2010 and was diagnosed as HIV positive. He said that he thought the doctors may have asked him how he contracted the disease, but he told them he had protected sex so it may have been from being drugged. He consented to the Tribunal seeing his clinical notes from that time. He told the doctors that he was gay but he cannot remember exactly when it was. He has been treated by [Dr A] since his diagnosis.

36. He said that he has been well since being given the correct medication.

37. He has been taking the medication Biktarvy for just over a year. Before this, he was taking four tablets of a different drug. He said that the doctor told him that this medication is better for him and is not available in Thailand. He takes it once a day. He sees the doctors once every six months, although it used to be once every four months.

38. He was asked if he has told people in Australia that he is HIV positive. He said that he had told the person he lives with. He has not told anyone else as if they do not ask, there is no reason to tell them. He said that no-one in Thailand knows that he is HIV positive. He said that they would not accept him if they knew that he has contracted this disease.

    Return

39. The applicant was asked if he would live in Bangkok if he returned to Thailand as this had been his principal place of residence from 1996 until 2009. He said that he does not feel that it is safe for him. He said that he is not sure as he would have to start again.

40. He was asked what he fears about returning to Thailand. He said that he fears it will not be safe. All humans want to survive. His family will not accept him for his homosexuality or HIV status, as they regard homosexual people as the ‘third sex’. He does not know if he could stay with them. He said that while Thailand has made progress with availability of HIV medication, his particular medication is unavailable. On the news last year, a family could not accept a family member who was HIV positive, and they just left him at the temple. The applicant cried when he saw this and fears it would happen to him.

    Availability of medication

41. The applicant stated in his written submissions that the ART he is currently taking would not be available in Thailand, would be too expensive to obtain or would be inferior, and like his first treatment of ART, would be ineffective. In the most recent medical report, [Dr A] stated that his current mediation, Biktarvy would not be available.

42. The Tribunal asked the applicant if he knew how [Dr A] found out that Biktarvy is not available in Thailand. He was asked if he knew if there are other similar ART medications to Biktarvy. He said that he did not know.

43. [Dr A] gave evidence at the second Tribunal hearing. He said that he acknowledged that Thailand had high-quality ART available. He said that the applicant had been prescribed Biktarvy because of his particular medical condition. He said that Biktarvy was unavailable in Thailand, was not available in generic form and there was no alternative medication.

44. His evidence is discussed in more detail in the findings below.

    Treatment and stigma

45. The applicant stated in his submissions that even if he could access treatment the country’s lack of effective privacy protections would mean that his HIV status would become known and he would be ostracised.

46. The Tribunal said that it was difficult to believe that he would put his life in danger by not accessing treatment because of a risk that someone would find out about it. He said that he does not want people to find out about the disease. His family will not accept it. He fears that they will hate and be disgusted by him.

47. It was also put to the applicant that retention rates for treatment are high and it does not appear from these statistics that patients are not accessing treatment for fear of stigma. According to HIV charity and education group Avert, there are high retention rates for treatment in Thailand, with 90 per cent of adults accessing treatment after 12 months.[1] According to 2019 UNAIDS data, 75 per cent of adult people living with HIV (PLHIV) and 86 per cent of child PLHIV in Thailand are on ART.[2] Of those people who know they are HIV positive, 80 per cent were on treatment, more than 95 per cent of whom were virally suppressed.[3] Thailand is one of only three countries in Southeast Asia with more than 70 per cent of PLHIV on ART, the others being Cambodia (87 per cent) and Singapore (77 per cent).[4] Furthermore clinics do anonymous treatments, for example the Red Cross Anonymous Clinic and the Pulse Clinic.[5]

    [1] Avert, HIV and AIDS in Thailand, 1 October 2019

    [2] ‘Avert, HIV and AIDS in Thailand, 1 October 2019

    [3] Avert, HIV and AIDS in Thailand, 1 October 2019

    [4] Avert, HIV and AIDS in Thailand, 1 October 2019

    [5] Pulse website, >

    He said that the ‘main thing is the medication does not exist in Thailand’.

    Relocation

48. The applicant submitted that he could not relocate to Bangkok or other places as he had no ties, contacts or resources to live there. He said that culturally families live together such that he could not live in another place.

    Other submissions

49. The applicant thanked the Tribunal and requested an opportunity to continue his life in Australia. He said that he could not go and live in Thailand for a few reasons. The first reason was because of his sickness as he could not get the medication he needs in Thailand and could get very sick. The second reason is that he could not get a job in Thailand once his condition is known. His mother is old and he could not look after himself. The health workers also may not be able to keep his sickness secret which would impact on access to jobs and medicine. He does not think he could live a normal life in Thailand.

1. The representative submitted that notwithstanding country sources which indicate that some centres provide medication confidentially, the applicant has serious concerns that nurses and other health workers would not keep his condition confidential. The representative also referred the Tribunal to country sources which indicate that while there is a high retention rate for treatment, this does not include gay men. For this group, the figure is 25 per cent. He submitted that there is a real risk of significant harm because it will become obvious that he is ill if he cannot get medication, and because of stigma he will be unable to get employment and will not be able to subsist. The Thai government has minimal social services especially for someone his age.

   Independent country information

2. The Tribunal has considered relevant country and media reports from a variety of sources. The most relevant of these sources are referred to and cited in the findings.

   FINDINGS AND REASONS

3. The Tribunal must be satisfied that an applicant meets the refugee or complementary protection criteria. In summary, in order to meet the refugee criteria, an applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criteria, there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk of significant harm.

4. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

5. The Tribunal is not bound by legal forms and technicalities or rules of evidence in reaching a decision although is guided by them. The Tribunal may take into account any matter relevant to the issues to be determined and considers all of the evidence before it in order to make the correct or preferable decision. The Tribunal must determine the weight to be given to evidence before it.

6. The findings of the Tribunal, based on the evidence provided, are set out below.

   Nationality

7. The applicant provided a copy of his Thai passport. The Tribunal is satisfied on the basis of his passport that the applicant is a citizen of Thailand and that Thailand is the receiving country for the purposes of the legislation.

   Findings of fact

   The reasonable approach to fact-finding

8. When assessing claims the Tribunal must make findings of fact in relation to the claims. It is generally accepted that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility, based on relevant and material facts. The Tribunal accepts that ‘if the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[6] The benefit of the doubt should however only be given where ‘all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts’.[7]

   [6] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

   [7] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 204

9. This approach is supported in numerous judgments and commentaries. As Burchett J said in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

   understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

10. Similarly, the Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

    refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

11. The Tribunal is guided by these decisions and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural and privacy issues which affect how an applicant answers questions, particularly in regard to sexual orientation. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[8] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

    Findings on sexual orientation

    [8] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, >

    The Tribunal is satisfied that the applicant is a homosexual man as claimed. He provided coherent and consistent evidence about his sexual orientation, said that he has never had a girlfriend and was able to talk about a number of homosexual relationships he has had. He was also able to persuasively describe his ‘deep-seated’ fear of rejection from his family, with whom he is close, an emotion often experienced by those whose sexual orientation conflicts with a family’s values and beliefs. He had also disclosed his homosexuality to his doctor and consented to the reports being provided to the Tribunal.

    Findings on HIV status and availability of treatment

12. The Tribunal is satisfied on the basis of the medical reports that the applicant is HIV positive.

13. The Tribunal is satisfied that Thailand has quality treatment available, and accessible, to people living with HIV, including in rural areas. The Tribunal is not satisfied however that the medication the applicant requires is available in Thailand. The reasons for these findings are set out in the following paragraphs.

14. According to the website for the Avert HIV education and advocacy group, Thailand has one of the highest HIV prevalences in Asia with 9 per cent of the population living with HIV.[9] Of those people who know they are HIV positive, 80 per cent were on treatment, more than 95 per cent of whom were virally suppressed.[10] Sources indicate that Thailand is actively aiming to end AIDS in the country.[11] A 2017 academic journal article in open access journal BMC Public Health writes that ‘Thailand is globally recognized for its achievements in controlling the HIV epidemic and establishing quality care and treatment programs for people living with HIV’.[12]

    [9] AVERT website, Avert, HIV and AIDS in Thailand, 1 October 2019

    [11] Ministry of Public Health (Thailand), November, Thailand National Operational Plan Accelerating Ending AIDS, 2014

    [12] Kriengkrai Srithanaviboonchai, in BMC Public Health, Building the evidence base for stigma and discrimination-reduction programming in Thailand: development of tools to measure healthcare stigma and discrimination, 17:245, 2017, p.1,

15. In September 2017, Thai newspaper The Nation reported on the UNAIDS’ country director (Thailand) applauding Thailand’s achievements in ‘overcoming AIDS’. The country director stated:

    Thailand stands out in the Asia-Pacific region for its achievements in overcoming AIDS… In just one generation the country has gone from having the fastest growing epidemic in Asia to the slowest. …This didn’t just happen. It was because of the commitment, resources and innovation which are a hallmark of Thailand’s efforts on HIV.[13]

    [13] The Nation, UNAIDS applauds Thai strategy to end AIDS epidemic by 2030, 13 September 2017

16. The Nation proceeded to report on Thailand’s new ‘2017-2030 National AIDS Strategy’:

    The new strategy commits to a fast-track phase, where an all-out effort is made to reach the global “90-90-90” treatment targets by 2020. This refers to a situation where 90 per cent of people living with HIV know their HIV status, 90 per cent of people who know their HIV-positive status are accessing treatment, and 90 per cent of people on treatment have viral suppression. Thailand has already achieved the first 90 and the other two goals are within reach.[14]

    [14] The Nation, UNAIDS applauds Thai strategy to end AIDS epidemic by 2030, 13 September 2017

17. A 2016 United Nations Development Program (UNDP) report notes the high quality of ART provided in Thai health care facilities:

    In general, Thailand has performed well to increase access to anti-retroviral therapy (ART), with a high quality of ART service provided in health care settings. Thailand was one of the first countries in Asia and the Pacific region to adopt the Test and Treat strategy; since 1 October 2014, the country offers ART to people with HIV irrespective of CD4 level (a CD4 count is a lab test that measures the number of CD4 T lymphocytes (CD4 cells) in a sample of blood).[15]

    [15] United Nations Development Program (UNDP),Thailand Common Country Assessment, 1 January 2016, p.43

18. A 2013 report covering the introduction of universal access to ART in Thailand, and funded by the UNDP, begins by acknowledging ‘that all Thai citizens have equitable access to quality antiretroviral therapy (ART) services’.[16] Thailand introduced a Universal Health Coverage Scheme (UCS) in 2002. Since 2005, ART drugs have been covered under the UCS, which means HIV/AIDS patients in Thailand are entitled to receive the medication for free.[17] 

    [16] United Nations Development Program (UNDP), The Journey of Universal Access to Antiretroviral Treatment in Thailand, November 2013, p.10

    [17] Bangkok Post, A major milestone, 27 November 2018; Avert, HIV and AIDS in Thailand, 1 October 2019; Kyoto Review of Southeast Asia, Thailand’s Universal Health Coverage under the Coup d’état: Is a Coinsurance Raise Good, 29 August 2018

19. The Thailand National Operational Plan Accelerating Ending AIDS, the Thai government’s official blueprint for combating HIV/AIDS for the period 2015-2019, recognised the provision of ‘quality ART’ as ‘an important tool’ in reducing transmission of the disease.[18]

    [18] Ministry of Public Health (Thailand), Thailand National Operational Plan Accelerating Ending AIDS, November 2014, p.18

20. As of 2014, the average life expectancy of someone in Thailand living with HIV/AIDS, and taking ART, was close to that of the general population, at 74 years of age.[19]

    [19] Bangkok Post, Sorry state of HIV discrimination, 29 November 2014

21. In February 2015, Reuters reported that:

    Thailand has made huge strides in fighting HIV… last year extending free ARV [antiretroviral] drugs to all Thais with HIV…[20]

    [20] Thomson Reuters Foundation, HIV-positive migrants denied care at Thai public hospitals, 8 February 2015,

22. A 2019 academic journal article indicated that ‘test-and-treat’ ART is available in Thailand’s large cities: At the Thai Red Cross AIDS Research Centre (TRCARC) in Bangkok, physicians offer same-day ART to participants who fulfil eligibility criteria, such as the exclusion of active tuberculosis, cryptococcal meningitis and other opportunistic infections. Same-day ART was accepted and initiated by 89.5 per cent of 3443 individuals with newly-diagnosed HIV between July 2017 and April 2019 [42].[21]

    [21] Camilla Muccini et al, in AIDS Research and Therapy, Leveraging early HIV diagnosis and treatment in Thailand to conduct HIV cure research, 2019

23. The Thailand National Operational Plan Accelerating Ending AIDS noted above includes several sections outlining the government’s intentions to decentralise the provision of treatment services ‘to sub district health promotion hospitals’.[22] The report expands:

    Task shifting and decentralization of services will be critical to assure treatment services can meet the demand generated under the new program. In order to achieve this, hospitals at the provincial and district levels with large caseloads will be selected to decentralize HIV care and treatment to the sub-district level. Newly initiated patients will be provided with services at the provincial or district level for the first year of care and treatment, after this they will be linked through the service provider networks to a sub-district hospital closer to their community which will then take over future care and treatment needs. Pilot hospitals will be selected within the priority provinces to assess this approach.[23]

    [22] Ministry of Public Health (Thailand), Thailand National Operational Plan Accelerating Ending AIDS, November 2014, p.26

    [23] Ministry of Public Health (Thailand), Thailand National Operational Plan Accelerating Ending AIDS, November 2014, p.2

24. According to sources, there are hospitals in Surat Thani, including a regional public hospital with 660 beds.[24]

    [24] >

    Notwithstanding this information which indicates that generally high-quality ART is available in Thailand including in rural areas, the Tribunal is also satisfied on the basis of the expert evidence of [Dr A] that the treatment that the applicant is currently taking is not available in Thailand and there is no appropriate alternative.

25. [Dr A] is [position titles deleted] at [Hospital 1]. He has worked for many years with HIV patients. His experience began as a junior doctor in 1995 during the height of the AIDS epidemic when patients were presenting with opportunistic infections. In 1996 he was treating patients when effective treatments first became available as a specialist at [a named Hospital], and then he trained at a number of hospitals. He was a specialist at [another] Hospital and then moved to [Hospital 1] in 2008. He currently heads the HIV unit which has [number] patients, many from other countries such as Thailand. There is also expertise in the unit in other areas of immunology and laboratory monitoring of HIV and immunological diseases.

26. [Dr A] first treated the applicant in 2010 when the applicant was transferred from [Hospital 2] to [Hospital 1]. He was admitted to the intensive care unit as he was seriously ill with life-threatening conditions. According to [DrA]’s reports, his CD4 count at presentation was below the limit of detection, indicating marked immune suppression. He had [various conditions], which are ‘AIDS defining illnesses’. [Dr A] has been involved in his treatment since then as his primary treatment physician in the outpatient service. The applicant is also treated by nurses and counsellors in their multi-disciplinary team.

27. According to a report by [Dr A] in 2014, the applicant was treated with [medications] at that time. The applicant is currently taking Biktarvy.

28. [Dr A] gave evidence at the Tribunal hearing. He said that the treatment of HIV has evolved over time. One of the benefits of Biktarvy is that patients only need to take one pill per day, which is appropriate for the applicant as he had a heavy pill burden previously. He emphasised however that the most important reason for the switch to Biktarvy from the applicant’s previous medication was the side effect profile that the applicant was getting with his previous medication profile. The major side effect caused to him was [details deleted]. Biktarvy has a low side effect profile for [patients] such as the applicant as it does not cause problems [like] the previous treatment did. It is also very well tolerated as opposed to his previous regimen.

29. [Dr A] said that he had been told that Biktarvy, which is a new medication, is not available in Thailand. There is no generic formula as it is co-formulated which means there are three drugs in one pill. One of the medications in Biktarvy is bictegravir which is not available on its own and is only available in this formulation. Co-formulation pills improve adherence. The fact that it is not available on its own means that there is no generic version.

30. He was asked if there is an acceptable alternative that the applicant could take instead. He said that he has ‘thought long and hard about this question’. He agreed that in general quality ART is available in Thailand. He said that there is no doubt that Thailand is a leader in HIV treatment and has made great strides, however he said that ‘this is a general statement.’ He said that for this particular applicant, his medication is not available in Thailand. He said that some of his patients who return to Thailand can get their medications in Thailand, but ‘not this patient’. He said on initial presentation when first admitted to hospital, the applicant ‘had no immune system and life-threatening opportunistic infections’. He said that he is concerned that if he is not on the most effective treatment his immune system will regress again. He said that ‘this is about his particular type of medication’.

31. He said that there are two factors to consider. One is whether the drugs would be appropriate. The applicant has drug-resistant HIV. Biktarvy was formulated partly for people with the drug-resistant virus. When diagnosed he was placed on treatment and was resistant to a number of ART. Thus this is the most appropriate treatment for him as he became very ill when not treated properly. Secondly, there are side effects of other ART. People can live long lives with HIV in current times but in the applicant’s case it was necessary to consider his [health conditions]. Taking both factors into consideration, his drug-resistant HIV and being susceptible to organ damage especially with his [condition], [DrA]’s professional opinion was that there is no alternative drug that would be available that would serve the purpose.

32. The Tribunal reviewed the National List of Essential Medicines (NLEM) for Thailand, which lists medications used in Thailand’s hospitals and public health service. Biktarvy was not on the list. Thailand updated this list in April 2019.[25] [Named medications] are all listed as antiretroviral drugs on the NLEM. [One] appears under its generic [name], however Biktarvy is not listed.[26] An article obtained by the Tribunal indicated that it had a registration pending.[27] However the Tribunal was unable to obtain information about when this registration would finalise.

    [25] MMIS, Thailand National List of Essential Medicines 2019 (NLEM), April 2019

    [26] MIMS, Thailand National List of Essential Medicines 2019 (NLEM), April 2019

    [27] Gilead website,

1. Having had the benefit of the expert evidence of [Dr A], and having viewed the NLEM, the Tribunal is satisfied that the applicant’s medication is not available in Thailand and there is no appropriate alternative.

   The principles of well-founded fear of persecution

2. Under s.5H(1) of the Act, a person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail him or herself of the protection of that country.

3. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.

4. The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that a person has a well-founded fear of persecution if:

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

   ·     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 above; and

   ·     the real chance of persecution relates to all areas of a receiving country.

5. For a person’s fear of persecution to be well-founded, there must be ‘a real chance that, if the person returned to the receiving country, the person would be persecuted…’ Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b), provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.

6. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J.

7. Section 5L of the Act defines ‘particular social group’ as follows:

   A 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.

   Does the applicant have a well-founded fear of persecution for reasons of membership of a particular social group of ‘homosexual men in Thailand’?

8. The Tribunal is satisfied that the applicant is a member of the particular social group of homosexual men in Thailand. Such a group, including the applicant, shares the characteristic of sexual orientation, which distinguishes them from society. The characteristic is not a fear of persecution.[28]

   [28] Section 5L of the Act

9. In submissions to the Tribunal the representative referred to an article in the Bangkok Post which referenced a World Bank Report.[29] In this report, Thailand which was considered progressive among developing countries, was regarded as having high levels of discrimination against LGBTI people especially in housing and jobs. The Tribunal put to the applicant that a review of literature from Thailand indicated that generally Thailand is known for its tolerance of LGBTI persons.[30] The sources indicate that while the majority Buddhist population do not accept LGBTI people, they tolerate them.[31] The Tribunal also put to him that homosexual conduct has been legal since 1956. According to the Asian gay and lesbian website Utopia Asia,[32] homosexuality in Thailand is largely a non-issue, homosexuals are surprisingly integrated into society and Thailand has three annual gay pride events in Bangkok, Pattaya and Phuket. According to a Reuters article[33] from February 2019, Thailand is set to pass a law to legally recognise same-sex couples as civil partners. The article notes that Thailand has built a reputation as a place with a relaxed attitude towards gender and sexual diversity since homosexuality was decriminalised in 1956, but also noted that according to activists, homosexuals may face discrimination and stigma in schools, the workplace and health facilities and are often rejected by their families.

   [29] Bangkok Post, Freedom House, Freedom in the World 2019 – Thailand, 11 April 2019

   [31] The Diplomat, An LGBTI Oasis? Discrimination in Thailand, 1 November 2016

   [32] Utopia Asia,

   [33] Reuters, Gay couples to 'live more freely' with Thai civil unions, 17 February 2019 >

   Furthermore, the Gender Equality Act in 2015 was passed to quell discrimination against LGBTI people. The Ministry of Labour’s Regulation on Thai Labour Standards and Social Responsibility of Thai Businesses B.E. 2547 prohibits discrimination against workers on numerous grounds, including ‘personal sexual attitude’.[34] Additionally, Thailand’s Constitution (2017) states:

   All persons are equal before the law, and shall have rights and liberties and be protected equally under the law.

   Unjust discrimination against a person on the grounds of differences in origin, race, language, sex, age, disability, physical or health condition, personal status, economic and social standing, religious belief, education, or political view which is not contrary to the provisions of the Constitution, or on any other grounds shall not be permitted.[35]

   A person shall enjoy the liberty to engage in an occupation.

   Enactment of the law to regulate the engagement of occupation under paragraph two shall not be in a manner of discrimination or interference with the provision of education from educational institutions.[36]

   [34] Lucas Ramón Mendos, ILGA, State-Sponsored Homophobia 2019, 20 March 2019, p.250,

   [35] Royal Thai Government, Constitution of the Kingdom of Thailand 2017, 6 April 2017, Sect.27,

   [36] Royal Thai Government, Constitution of the Kingdom of Thailand 2017, 6 April 2017, Sect. 40

10. In regards to Bangkok, it was put to the applicant that the city has a global reputation as one of the world’s most gay-friendly cities. As well as being a tolerant place for local gay men and women it is popular for visitors. It also has a widely visible transgender population.[37]

    [37] Expique blog, >

    The applicant responded that there is general tolerance of homosexuality in Thailand, but unluckily he lives in a family where there is no acceptance. His mother wants him to have a family. He said that he does not want to be forced to marry a woman as he does not like women. The Tribunal put to him that he lived away from home in Bangkok for 13 years, and he has also lived in Australia for a long time. He was asked if this experience of living away from home would allow him to live in Bangkok and avoid the pressure from his family in his home region. He said that he does not know how to say no to his mother as she is old and wants him to have a family. He said that the costs of opening a [business] in Bangkok are high these days.

11. The Tribunal is not satisfied, given the country information, that there is a real chance of serious harm for reasons of his sexual orientation, were the applicant to return to Thailand in the reasonably foreseeable future. The Tribunal is satisfied that the chance of serious harm would be insubstantial, remote and a far-fetched possibility (Chan v MIEA (1989) 169 CLR 379). The sources indicate that there is general tolerance of homosexuality with little indication of violence or official discrimination.

12. The Tribunal is satisfied that there may be some societal discrimination and ostracism directed towards the applicant on the basis of his homosexuality in light of the World Bank report and other sources. The Tribunal is satisfied that the applicant is apprehensive of the reaction of his own family, who have conservative views towards sexual orientation, and is fearful that they may be disappointed and ostracise him. He is also concerned about discrimination from other members of society, including in the workplace.

13. The country sources do indicate discrimination in housing and jobs against LGBTI people, as well as rejection from families and community members. However such harm does not reach the level of ‘serious harm’ envisaged by the legislators. The Act provides that the following are instances of serious harm: (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.

100.   These are indicative kinds of harm only, and there may be other kinds of serious harm. However the listed examples of harm in the legislation indicate that the legislators intended that the harm be of a serious nature. The Tribunal is not satisfied that unofficial instances of discrimination and ostracism, while unpleasant, would reach this level of serious harm. The Tribunal is also not satisfied, given the generally tolerant attitudes towards LGBTI people in Thailand, that the applicant would not be able to find work or access services because of his sexual orientation only, although there may be some instances of discrimination.

101.   The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for reasons of his sexual orientation.

Does the applicant have a well-founded fear of persecution on the basis of his HIV positive status or his HIV positive status and sexual orientation cumulatively?

102.   The Tribunal is satisfied that the applicant is a member of the particular social group of ‘people who are HIV positive in Thailand’ and the group ‘gay men living with HIV in Thailand’. These groups share the characteristic of diagnosis as HIV positive, or diagnosis and sexual orientation, which distinguishes them from society. The characteristic is not a fear of persecution.[38]

[38] Section 5L of the Act

103.   As referred to earlier in this decision, in order to meet the refugee criteria an applicant must have a well-founded fear of persecution which involves serious harm. The indicative examples of serious harm set out in the legislation reflect an intention of the legislature that the harm reach a particular level of seriousness. Discrimination and ostracism on their own, if not leading to serious harm, may not reach the level of persecution. However where there is such a level of discrimination and ostracism that it may lead to inability to subsist then there may be a well-founded fear of persecution involving serious harm.

104.   The applicant said that he fears that people may dislike him and not want to ‘hang out with him’, and that he will be hated. He said that his family will reject him and he fears being left in a temple to die. He said that the country is progressing but the ‘older types of belief’ still exist and are prevalent in his home region. He also fears discrimination in the workplace were people to find out that he was HIV positive, particularly as he works in [a certain] industry. He fears that health workers will not be able to keep his information confidential. He also fears discrimination in access to health services because he is HIV positive. Finally, he fears that he will become ill because he cannot access his particular medication in Thailand, and because of this visibility, he will be severely discriminated against, and may become very ill or die and would not be able to access services.

105.   The Tribunal has considered carefully the country information in relation to discrimination against people living with HIV, and in particular gay men living with HIV.

106.   The Tribunal is satisfied, as discussed earlier, that generally there is quality health care available for people living with HIV in Thailand, including in regional areas[39] such as Surat Thani.

[39] Ministry of Public Health (Thailand), Thailand National Operational Plan Accelerating Ending AIDS, November 2014

107.   As set out earlier, the Constitution of Thailand prohibits discrimination on a number of grounds, including health conditions.[40] People who want to complain of a human rights violation including HIV can lodge a petition with the National Human Rights Commission.[41] There is also a National Committee for HIV Prevention and Management in the Workplace and Code of Practice for HIV Prevention and Management in the Workplace, 2009, to address workplace discrimination.[42] The Royal Thai Police, Ministry of Justice, Ministry of Public Health and NGOs are supporting a police training program to address HIV-related discrimination.[43]

[40] Royal Thai Government, Constitution of the Kingdom of Thailand 2017, 6 April 2017

[41] National Human Rights Commission Act 1999 (Thailand), Section 30

[42] United Nations Development Programme, Bangkok, HIV and the Law in South-East Asia, 2015, United Nations Development Programme, Bangkok, HIV and the Law in South-East Asia, 2015https://  As put to the applicant at the Tribunal hearing, the government is active in reducing discrimination. In its 2017–2030 National AIDS Strategy, the Ministry of Public Health of Thailand set a target of reducing HIV-related discrimination in health care settings by 90 per cent by 2030.[44] Furthermore, a case study presented on the Avert website highlighting HIV stigma and discrimination globally indicates that while discrimination levels were high in Thailand in 2012, official efforts appear to have succeeded in improving attitudes of health care workers:

[44] Avert, HIV and AIDS in Thailand, Avert, 1 October 2019

In 2012, half of all people living with HIV in Thailand were starting treatment very late and had CD4 counts under 100. HIV stigma was identified as a major barrier to service uptake so health authorities set a target to cut HIV-related stigma and discrimination by 50% by 2016.

The Ministry of Public Health found that over 80% of healthcare workers had at least one negative attitude to HIV, while roughly 20% knew colleagues who were unwilling to provide services to people living with HIV or provided them substandard services.

More than half of respondents reported using unnecessary personal protection measures such as wearing gloves when interacting with people living with HIV. 25% of people living with HIV surveyed said that they avoided seeking healthcare for fear of disclosure or poor treatment, while a third had their status disclosed without their consent.

In response to these findings, the Ministry of Public Health, in collaboration with civil society and international partners developed initiatives to sensitise healthcare workers in both clinical and non-clinical settings.

Early results in 2014 indicated that improving the attitude of healthcare workers doesn’t just improve care for people living with HIV but has wider societal benefits as they are seen as role models.

As of 2017, Thailand had collected data from 22 provinces. The Thai Ministry of Public Health is rolling out an accelerated system-wide stigma reduction programme, in collaboration with civil society and concerned communities.[45]

[45] Avert, HIV Stigma and discrimination, 10 October 2019

109.   Notwithstanding these measures by the government, there is evidence that discrimination against HIV positive people continues. For example many Thai employees working in the formal employment sector are required by their employers to undergo annual health checks.[46] According to a 2014 Bangkok Post article, these checks can also be occasions when people living with HIV are fired once their health status becomes known, including by state agencies.[47] Compulsory HIV testing during the job application phase or an involuntary test during employment was also reported as an ongoing form of discrimination in a 2018 report.[48]

[46] Bangkok Post, Sorry state of HIV discrimination, 29 November 2014

[47] Bangkok Post, Sorry state of HIV discrimination, 29 November 2014

[48] World Bank, Economic Inclusion of LGBTI Groups in Thailand, 23 March 2018, p.17,

110.   However in February 2019, the Personal Data Protection Act (PDPA) was approved by the Thai National Legislative Assembly, and will require employers to obtain an employee’s express written consent before they can collect an applicant’s health records. According to legal firm Pisut & Partners:

The National Legislative Assembly of Thailand approved the draft Personal Data Protection Act (PDPA) on 28 February 2019. The PDPA will soon be published in the Royal Gazette, and its substantive provisions will become effective one year after publication. Under the PDPA, an express written consent from applicants is legally required to be obtained before the employer can collect applicants’ personal information, including health records, criminal records and other sensitive information.

There is no difference as to whether the employer conducts its own checks or hires a third party to do this, as both approaches require express written consent from applicants.[49]

[49] Pisut ＆ Partners, Labour & Employment, 26 November 2019

111.   In response to a question ‘Are there any restrictions or prohibitions against requiring a medical examination as a condition of employment?’ the same legal firm responds:

The PDPA prescribes that consent to collect personal information cannot be required as a condition for a party to enter into any contract with another party unless such personal information is necessary for the contract in question. Therefore, given that medical examination results are, by their nature, personal information, an employer who wishes to collect such information must limit the scope of medical examinations required to those that are directly relevant to the employment position in question.[50]

[50] Pisut ＆ Partners, Labour & Employment, 26 November 2019

112.   While there is no information to assist the Tribunal as to how this legislation will work in practice, it does indicate both that discrimination was rife up to 2018/19 and that the government is taking steps to redress it.

113.   The applicant agreed that there was no official discrimination against people living with HIV, but what he was concerned about was community and family discrimination, as well as discrimination from health workers and employers.

114.   In MZXKX v Minister for Immigration and Citizenship [2008] FMCA 567 the court said that the Tribunal should in that case have considered a combination of factors in determining whether the HIV positive applicant would be able to subsist in Cambodia. In this case, the Tribunal has considered a combination of factors including the level of stigma and ostracism, access to health and other services, job discrimination and lack of familial support.

141.   The Tribunal is satisfied therefore that the applicant has a well-founded fear of persecution for reasons of his membership of a particular social group of ‘gay men living with HIV in Thailand’, were he to return to Thailand in the reasonably foreseeable future.

CONCLUDING PARAGRAPHS

142. 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

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

Jane Marquard
Member

ATTACHMENT A – Relevant law

CRITERIA FOR A PROTECTION VISA

144. 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.

145. 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.

146.   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 themselves 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).

147.   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.

148. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of 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

149.   In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.

ATTACHMENT B – 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.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

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 the 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.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(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.

…

ATTACHMENT C – documents provided by the applicant

• Report of [Dr A], [position titles] at [Hospital 1], dated [June] 2014. The doctor stated that the applicant was taking [medications]. The doctor said he had been treating the applicant since October 2010 when he was diagnosed with HIV. At the time he was acutely unwell and presented to [Hospital 2]. His CD4 count was low indicating marked immune suppression. Since [May] 2011 the applicant had no detectable HIV in his system, demonstrating good compliance with treatment. He has been physically and emotionally well.
• Extract from RRT decision [deleted]
• Printout from site called ‘aidsmap’ titled ‘Preventing infections, adherence to HIV Treatment, and why adherence matters’.
• Report of [Dr A], [undated], provided 2019. The Professor stated that the applicant had been diagnosed at a terminal stage of his illness, but with appropriate treatment had recovered well, but only with close monitoring and supervision of his team. When he presented in 2010 he had ‘a multitude of opportunistic infections. He was treated with medications, also for syphilis and a venous ulcer. He said that if he is removed from this specialised care and placed on ART medications not available in Australia then his condition will deteriorate to an uncertain prognosis with the possibility of opportunistic infection and death. He said that his diagnosis of HIV has affected his mood adversely and increased his anxiety levels due to the stigma associated with the disease in his Thai community and the fear of returning to his homeland. He said that the current medication is ‘not available in Thailand’. He stated that ‘ his multi-drug resistant HIV is currently stable on Bikarvy but this medication is not available in Thailand and without its access it is inevitable that his CD4 count will return to his baseline level of 0 cells/ul with the relapse of his life-threatening opportunistic diseased detected at diagnosis. Furthermore (the applicant) has [details deleted]. If he was sent back to Thailand, he would be placed on antiretroviral medication that would most likely [details deleted]. (His) physical and psychological prognosis is good if he remains in Australia receiving the multidisciplinary care [under] our social work, dietetics and medical team. However for the reasons outlined, the prognosis is poor if he returns to Thailand’.