1707094 (Refugee)

The applicant, a national of Colombia, sought a protection visa on the grounds of a well-founded fear of harm due to his status as a homosexual, HIV-positive man. The dispute before the Tribunal concerned whether the applicant met the criteria for a protection visa, specifically whether he had a well-founded fear of serious harm on return to Colombia, faced a real risk of significant harm if returned, and could access safe third-country protection.

The Tribunal was required to determine if the applicant qualified as a refugee under section 36(2)(a) of the *Migration Act 1958* (Cth) by having a well-founded fear of persecution for reasons of his membership in a particular social group, namely homosexual men and/or HIV-positive homosexual men. Additionally, the Tribunal considered the complementary protection criterion under section 36(2)(aa), which requires substantial grounds for believing there is a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia. The Tribunal also had to consider whether effective protection measures were available to the applicant in Colombia.

The Tribunal accepted that the applicant was homosexual and HIV-positive, and that he had experienced threats from his father after disclosing his status. It acknowledged that the applicant had experienced greater freedom to explore his identity and sexuality while in Australia. The Tribunal applied the principles outlined in the *Migration Act 1958* (Cth) regarding the definition of a refugee and the assessment of a well-founded fear of persecution, including the concept of membership in a particular social group and the meaning of significant harm. The Tribunal also had regard to Ministerial Direction No. 84 and relevant guidelines and country information.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant satisfies section 36(2)(a) of the *Migration Act 1958* (Cth), indicating that Australia has protection obligations towards him as a refugee.