1708100 (Refugee)

[2020] AATA 1893

1708100 (Refugee) [2020] AATA 1893 (5 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708100

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:P. Wood

DATE AND TIME OF

ORAL DECISION AND REASONS:         5 March 2020 at 2:52 pm (VIC time)

DATE OF WRITTEN RECORD:                7 April 2020

PLACE OF DECISION:  Melbourne, Victoria

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 7 April 2020 at 12:15pm

CATCHWORDS

REFUGEE – Protection Visa – Indonesia – particular social group – persons living with HIV – societal discrimination – genuine fear of returning to Indonesia – access specialised medical care – barriers to access medication –relocation not available – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5, 36, 499

Migration Regulations 1994, Schedule 2

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 March 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 13 March 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

3. 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.

4. 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.

5. 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).

6. 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.

7. 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).

8. 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.

9. The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is 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 of such a person.

10. The applicant is a citizen of Indonesia and applied for the aforementioned visa on 12 April 2016.

11. The applicant travelled to Australia on a genuine Indonesian passport. She has at all times maintained that she is a citizen of Indonesia. The Tribunal finds that she is an Indonesian citizen and has assessed his claims against Indonesia as her country of nationality.

12. The applicant has made claims for protection on numerous grounds. These grounds may be summarised as follows:

    a)    The applicant first arrived in Australia [in] July 2008 as the holder of a [temporary] visa. The applicant travelled to Australia at that time for the purpose of [details deleted]. The Tribunal understands that on this trip the applicant met her first husband and soon thereafter submitted to the Department an application for a partner visa on the basis that she had formed a relationship with her first husband. This partner visa application was lodged on 2 October 2009. In October 2009 the applicant was diagnosed as HIV positive. Since her diagnosis or soon thereafter the applicant has been under the care of the same general practitioner here in Australia. Over that time she has been prescribed different medication to treat her HIV.

    b)    The applicant’s relationship with her first husband ultimately broke down. [In] July 2011 the applicant married her second husband, also an Australian citizen. On [a specified date] the applicant gave birth to her [child]. Her [child] therefore is [an] Australian citizen who the Tribunal understands to attend school in suburban Melbourne.

    c)    The applicant’s circumstances are such that she fears that if she was required to change her medical treatment program in any manner, she may become sick, and unable to care for her [child]. The applicant understandably fears becoming sicker and developing Aids, which may put her at risk of death. The applicant requires specialist medical care during her current pregnancy. For numerous reasons, relating to her health but also the health of her unborn child, the applicant is attending sessions with a specialist in an attempt to ensure that the unborn child does not develop HIV.

    d)    The applicant is fearful that she will be discriminated against and subject to degradation due to the stigma associated with HIV and the risk of conflation within society of HIV with being homosexual. She fears that she will be outcast from her community in Indonesia and unable to find necessary employment or stable accommodation. It follows and is obvious that the applicant does not want to be separated from her present husband and her [child] here in Australia.

    e)    The applicant was diagnosed with HIV after arriving in Australia and does not have any experience seeking medical treatment for her condition in Indonesia and would not have the resources to be able to relocate elsewhere within Indonesia.

    f)     The applicant does not believe that Indonesian authorities have the capacity to ensure her health and safety. She fears that if she falls sick her health could deteriorate rapidly and she would not be able to fulfil her responsibilities as a mother.

13. The Tribunal has considered the applicant’s claims based on her status as a person quite clearly living with HIV.

14. There is abundant documentation on the Tribunal file confirming the applicant’s HIV status. On the evidence before it, including the most recent medical evidence provided to the Tribunal, dated [February] 2020, the Tribunal finds that the applicant is a person living with HIV. The Tribunal accepts that persons living with HIV constitute a particular social group and that the applicant has a genuine fear of returning to Indonesia.

15. The issue in this case is whether, as a result of her HIV status, the applicant has a well-founded fear of being persecuted and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Indonesia there is a real risk that she would suffer significant harm.

16. As referred to above, the applicant claims that she will experience discrimination and degradation from the State, societal discrimination, employment discrimination and discrimination in relation to medical treatment because of her HIV status.

17. For the reasons that follow this Tribunal has concluded that the applicant’s application should be remitted for reconsideration.

18. In the applicant’s written submission, and confirmed in her oral testimony, the applicant made clear that she is reliant on specific medications which could be difficult to access in Indonesia. The applicant explained to the Tribunal that she has been taking her present HIV medication for around five years, having earlier been prescribed a different medication. As the Tribunal has referred to above, the applicant has a particularly close therapeutic relationship with her general practitioner who has a complete understanding of her medical circumstances, both relating to her HIV and otherwise.

19. The applicant’s representative in her oral submissions claimed, and the Tribunal accepts, that if the applicant were to be unable to obtain her medication even for a brief period, this would have a deleterious effect on the applicant’s health. The applicant is concerned that any inability to obtain appropriate medication, or even a change in her medication, may impact her immune system leading to the onset of Aids and possible death. And as the applicant’s health deteriorates she would lose the ability to support herself and care for her family.

20. The evidence before the Tribunal is that the applicant is estranged from her immediate family in Indonesia and relies upon the care and support of her husband here in Australia. The applicant fears that she will be ostracised due to the prevalent stigma against people with HIV and the loss of support in Indonesia would result in serious harm to her, which the Indonesian Government would be unable to protect her from.

21. The applicant’s representative correctly highlighted that despite an array of purported positive intentions, policies and plans by the Indonesian Government to provide adequate care and support services, there are numerous reputable sources which report that such intentions, plans and policies have not necessarily materialised in any meaningful way and that outcomes for people living with HIV in Indonesia are getting worse.

22. The Tribunal accepts this is absolutely necessary for the applicant to be able to access specialised medical care during her pregnancy. The applicant’s representative provided the Tribunal with documentation from [a health facility] which confirms that the applicant is receiving specialist treatment from the [Clinic] and supporting documentation which confirms that in addition to providing the applicant with the care that she requires for her health, the primary purpose of this treatment is to minimise the risk of the applicant’s unborn child contracting HIV.

23. The applicant’s representative referred the Tribunal to media reports concerning Indonesian hospitals exhausting their stocks of antiretroviral medication and referred the Tribunal to separate media reports concerning the conflation of IVF and homosexuality and discrimination by militant Islamic groups towards such persons within Indonesia.

24. The Tribunal has read and had regard to country information that suggests that the Indonesian Government is committed to providing treatment for persons diagnosed with HIV.

25. The country information considered by the Tribunal suggests that there have been an increase in vigilante incidents against the LGBTI community in Indonesia since 2016.  The country information indicates that the LGBTI community, and persons suspected to be part of the LGBTI community therefore, face discrimination, arrest under pornography laws and associated discrimination by lawyers and judges when dealing with the criminal justice system, a moderate risk of violence, and physical and sexual abuse upon arrest.

26. The Tribunal has also read and had regard to reports of barriers to access medication especially in remote and rural areas or in provinces not noted for high incidence of HIV as well as reports that fees or bribes are regularly charged for patients trying to access HIV treatment.

27. Further, the Tribunal accepts that recipients even in the best circumstances are still required to pay for diagnostic medical or other associated fees and expenses and that these expenses are beyond the reach of many.

28. The Tribunal accepts the applicant’s claims that she will face societal discrimination, including from her own family, is highly plausible. The Tribunal accepts that the country information indicates there is plenty of evidence that there is an underlying stigma, discrimination and misunderstandings about HIV and Aids in Indonesian society and that people with HIV and Aids continue to face employment discrimination.

29. The Tribunal accepts that there is widespread misunderstanding amongst Indonesian society as to how HIV is transmitted with significant proportions of the general population believing that HIV can be transmitted through general social contact. The Tribunal accepts that there is a level of societal discrimination against those with HIV in Indonesia such that there is a real chance that the applicant would find it difficult to find employment in Indonesia.

30. The Tribunal has read and had regard to a psychological report dated [March] 2020 detailing the applicant’s relationships with her respective maternal family. With this in mind the Tribunal accepts that given the pervasiveness of the stigma and discrimination within Indonesian society there is a real chance that the applicant would face rejection by her family and that her family would refuse to provide her with support because of her HIV status. This is also consistent with observations made in the Department of Foreign Affairs and Trade country information report for Indonesia.

31. The Tribunal is satisfied that this is serious harm that amounts to persecution in a convention sense. The Tribunal finds that the persecution which the applicant fears involves systematic and discriminatory conduct in that it is deliberate or intentional and involves selective harassment because of the HIV status. The Tribunal also finds that the government is unable, even if it is willing, to protect the applicant from societal discrimination relating to her HIV status, including from her own family.

32. The Tribunal has also considered whether the applicant could relocate to other parts of Indonesia, however, in the Tribunal’s view, given the applicant’s HIV status and the risk of serious harm against those with HIV status, which does not appear on any of the material to be geographically confined, there is no part of Indonesia which she could reasonably be expected to relocate to where she would be safe from the harm which she most genuinely fears.

33. For the reasons given the Tribunal finds that the applicant has a well-founded fear of being persecuted for reasons of her HIV status if she returns to Indonesia now or in the reasonably foreseeable future. The Tribunal finds that the Indonesian Government is willing, but unable, to protect her from societal and familial discrimination that, would ultimately threaten her capacity to subsist, if she was unable to work or receive other support.

34. There is no evidence before the Tribunal that the applicant has a right to enter and reside in a country apart from Indonesia. The applicant is unable to avail herself of third country protection as set out in s.36(3).

35. Having considered all of the evidence before it, the Tribunal is satisfied that the applicant has a well-founded fear of persecution on return to Indonesia for reasons of her membership of the particular social group of people living with HIV in Indonesia. 

36. 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

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

    P. Wood
    Senior Member