1711983 (Refugee)

1711983 (Refugee) [2022] AATA 3780 (8 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Ashley Ognenovski
CASE NUMBER:  1711983
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Luke Hardy
DATE:8 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 August 2022 at 12:09pm
CATCHWORDS
REFUGEE – Protection visa – Thailand – membership of a particular social group – gay man with HIV who may not be able, or able to afford, to access appropriate anti-retroviral treatment – the lack of free access to Biktarvy or Odefsey treatment under Thailand’s UCS – sibling of an Australian citizen or resident who has supported him socially and emotionally for several years – refer this matter to the Minister – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 417, 499
Migration Regulations 1994, Schedule 2
CASES
MZAAJ v Minister for Immigration and Border Protection [2015] FCA 478
MZXKX v Minister for Immigration and Citizenship [2008] FMCA 567
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, [Mr A], is a citizen of Thailand. He first entered Australia on a student visa on [date] January 2008. He returned to Thailand on [date] December 2009. He re-entered Australia on a student visa on [date] January 2010 and departed for a brief stay in Thailand on [date] March 2013. He last entered Australia on [date] April 2013.
[Mr A] was diagnosed with HIV in 2011 while completing medical checks for a partner visa application. His relationship consequently ended and his visa sponsorship was withdrawn. He lodged a protection visa (PV) application on 6 June 2016.
The delegate refused to grant the visa on 17 May 2017.
[Mr A] appeared before the Tribunal on 12 July 2022 to give evidence and present arguments. He was accompanied by his adviser, a registered migration agent.
The Tribunal hearing was facilitated by an interpreter in the Thai-English medium.
Criteria for a protection visa
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.
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.
A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.
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
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The Issues
The issue in this case is whether, on accepted evidence, [Mr A] is entitled to protection as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department
[Mr A], age [age], is an HIV+ native of Nonthaburi, a district that has become subsumed in recent decades into the northern part of metropolitan Bangkok. He claims to have been self-employed in his own small business in Bangkok [from] 1997 to 2003. He claims then to have owned and operated a small [business] from 2005 to 2007 [in] Pathum Thani district in the northern outskirts of Bangkok.
[Mr A] claims to have grown up in his mother’s house, his parents having separated when he was young. He claims not to have a close relationship with his mother or brother. He evidently moved not far from his first home in Nonthaburi in 2003. He claims he lives with and receives social and emotional support from his sister who lives in Sydney and was living here before he arrived.
[Mr A] claims to be fluent and fully literate in Thai. He claimed in 2016 to be able to speak, read and write English “a little.” He claims to have completed two English courses in Australia, the second having been at upper-intermediate level in 2010, in between which he studied without completing a [Qualification 1] and went on to study but not a [Qualification 2]. I note that [Mr A] claims to have worked in Australia in a [workplace] throughout the period of his HIV treatment and therapy.
[Mr A] claims fear of being persecuted in Thailand for separate and cumulative reasons of being a gay man with HIV who may not be able, or able to afford, to access appropriate anti-retroviral treatment (ART). These claims are succinctly made in a statutory declaration to the Department:
I am afraid to return to Thailand because I have HIV and because I am a gay man. I fear that I will be unable to get work, or obtain my essential medication. I worry that I will not have money to pay for medication and living expenses. If I don't have my HIV medication, I fear I will get complications and I will die ...
I left Thailand and came to Australia in 2008 on a student visa. I came to study and stay with my sister, [Ms B], who is an Australian citizen living in Australia. I remember that [Ms B] had told me that Australia was a good place for gay men ...
I have not lived in Thailand properly since I was diagnosed with HIV. I am afraid of how I will survive. I am afraid that I will not be able to get a job if people find out that I have HIV. Thai people are afraid of HIV. I have heard that there is a lot of stigma, fear and discrimination about HIV in Thailand ...
Before I was diagnosed with HIV, I myself was scared of HIV. I thought that I might catch it if I shared a meal with someone who had the disease. It is only from talking to my doctor and my sister that I have started to understand what having HIV means ...
I have only met one person who I know had HIV when I lived in Thailand, he was my friend. I was afraid and scared when I knew he had HIV. It was a long time ago, and he died. Nobody wanted to associate with that person because they were scared of catching HIV ...
I am worried about anyone finding out about my HIV, and I have not told anyone in Thailand, because I worry about their reactions, and I worry that the information will be shared around ...
I am scared that I will not be able to get a job, and if I cannot get a job then I will not be able to pay for food, rent, medical treatment and HIV medication. I have heard that some employers make you have a test for HIV and then do not employ you if you test positive ...
I am also worried that if hospitals find out about my HIV, then they might not want to treat me for any other medical conditions because some health workers are still afraid of HIV and afraid of catching it. I am also concerned that other people might find out about my HIV as I don't trust the medical system in Thailand to protect my confidentiality ...
After I was diagnosed with HIV I confided in my sister and she has been really supportive and understanding ...
My doctor in Sydney has told me how important it is for me to take my medication every day, and I go to see him regularly for blood tests. I am scared that I will not be able to get the same HIV medication which keeps me alive. I am scared that because I have F-llV I am more at risk of catching other illnesses like TB ...
I think that even if I try my best to keep my HIV a secret, people will find out I am HIV positive if I get sick and lose weight. When people find out, they will avoid me, not want me to visit their homes, and not want to socialise with me or share a meal with me for fear of catching HIV ...
When I lived in Thailand and went to the doctor for general treatment, I always had to pay some money at the clinic. I was able to afford to pay because I had a job and an income ...
If I have to go back to Thailand, I will have no support at all. Since my HIV diagnosis I am afraid of forming a new relationship due to the bad reaction of my last partner. I will have no support of any family if I go back to Thailand. My sister has been my main support ever since my diagnosis with HIV. She understands my fears. She is one of the few people I have told about my I-IIV. I felt much better after I confided in her and her ongoing support is so important for me ...
In Thailand, I was never open about my sexuality, because it is quite a different culture. I lived together with a man for about 5 years in Bangkok, but we never told anyone that we were living together as a couple. Instead, we pretended that we were just friends who lived together. In fact, we had separate groups of friends and none of them knew that we were in a relationship. I did not want anyone to know, because we would be treated differently and people would not approve and I was afraid of their reaction ...
If I have to return to Thailand I think it will be definitely very difficult for me to ever find a partner, especially when people find out I have HIV. I would never be able to live openly as a gay man in Thailand even if I did find a partner, because the culture is very different from in Australia ...
[Mr A] claims fear of discrimination by Thai society generally. He claims that this discrimination will amount to serious harm, and therefore persecution, in the event of trying to find work or trying to access HIV treatment. He claims he has no family support in Thailand.
Prior to his PV interview, [Mr A] made a number of submissions through his adviser, a number of these containing descriptions of and arguments about the standards and availability of life sustaining HIV treatments as well as human rights laws and practices in Thailand. [Mr A] claimed that homosexuality and HIV+ status are not generally tolerated as well in Thailand generally as they are here.
[Mr A]’s adviser drew the Department’s attention to a decision made by another Tribunal member in a separate matter on 5 October 2016[1] relating to an HIV+ gay man from the Philippines. The Tribunal in that instance set aside the delegate’s decision.
[1] Case number 1503082
For the purposes of this decision, [Mr A] submitted a copy of the delegate’s decision, which contains a useful summary of [Mr A]’s discussion of his claims at the PV interview:
The applicant's parents separated, he has an older brother he is not close with and a sister who resides in Australia. His family consists of his father, mother, older brother and his parents separated when he was very young. He stated he recently heard from his mother who moved to another province with her partner around 10 years ago. The applicant stated he is not close to his brother as his brother was raised by their maternal grandmother and that the two did not live together. The last time they spoke was 3 or 4 years ago. His brother is married and has children. Of the relationship between his mother and his grandmother the applicant explained that he guesses from what he could see, the applicant's grandmother loved her son more than her daughter, the applicant's mother. He said his grandmother has now passed away. The applicant spoke in detail and at length about his family dynamics such that I am satisfied that the applicant was speaking from personal experience.
The applicant's description of his family relationships points to his sister in Australia as being his primary support, while his other family relationships are evidently more removed in terms of the emotional support the applicant derives from them. I discussed with the applicant his experience of being a gay male in Thailand. He explained that prior to his most recent relationship in Australia, he was in a relationship with a man in Thailand from age 20 - 25 years and that they identified to others as friends, not publicly disclosing their relationship. He explained that when he was in Thailand, homosexual activity was frowned upon and that to involve himself in the gay scene in Bangkok he went with his friends to a cinema that showed gay pornography. He stated that he didn't tell his friendship circle in Thailand about his sexuality and that it was his sister who notified his family. The applicant explained his sister was very supportive about his sexuality, and described his mother as the kind of woman who is not bothered by her children's affairs so long as they don't bother her.
When asked for information at interview the applicant was forthcoming in providing a descriptive narrative of his experiences from his family relationship, his experience of learning he had HIV and of his previous relationships and appeared credible in all matters discussed.
I discussed with the applicant his status as a HIV positive person, and how he feels this would impact him if he were to return to Thailand. The applicant explained that before he knew he had HIV he was fearful of those who had the disease. He explained that this is an attitude that is maintained across broader society and is concerned about experiencing stigma and discrimination if he is to return to Thailand. The applicant outlined he was fearful his health would deteriorate and he would be excluded from receiving adequate medical treatment in Thailand. Whilst I acknowledge that discrimination is an ongoing issue in Thailand for HIV positive persons, I find that the applicant would not be excluded from receiving adequate treatment and I notified him at interview of the HIV treatment available in Thailand presently to citizens when it became apparent he was not aware of this. I find that the applicant would be able to receive treatment, as country information indicates that HIV prevention and treatment programs are a priority for the Thai government and are available to Thai nationals and that the government is committed to combating stigma by providing health education.
I accept the applicant is HIV positive as he is supported by [Organisation 1]. NSW in his Protection visa application, and a letter dated 26 November 2014 from an Infectious Diseases Physician [a named doctor], NSW, was included within the file detailing the applicant's health and HIV status. I note that the doctors have outlined the applicant's fears about exposing his health status and sexuality to his family, the applicant stated at interview that his family have since been made aware of his sexuality since the time of the doctor's writing. Further, after speaking to the applicant at length during his Protection visa interview about his family relationships, the applicant [said] that his mother visited [him] and his sister the previous year in Australia …
I have a half-brother who is [age] years older than me. We have the same mother but different fathers. We are not close. He moved out of our home when I was about [age] years old, and went to live with our grandmother. He never moved back. The only way I am in contact with him is we are [social media] friends ...
The only way I contact my mother is occasional messages on [social media]. She does not call me and I do not call her because we are not close. When I was a child, my aunty told me that my mother hates me because my face looks like my dad's father ...
Even if I did have a relationship with my mother, or if I managed to improve the relationship, if she finds out I have HIV, she will not want to have anything to do with me and definitely would not let me live in her house. She does not have the ability to provide any financial support to me ...
On the evidence in [Mr A]’s 2016 PV application, on the testimony given to the delegate at his 2017 PV interview, and on the evidence provided to the Tribunal orally and in writing, I accept that [Mr A] is a “gay male Thai subject” who is also a “Thai subject living with HIV.” I also find that each of these two characteristics is a “particular social group” for the purposes of s.5J(1)(a) of the Act and that they also comprise a “particular social group” when considered cumulatively.
On the evidence as a whole, I also accept the other facts and details described by the delegate in the citation above.
Evidence to the Tribunal
[Mr A] and his adviser made further submissions prior to the Tribunal hearing. These include more up-to-date reports on his progress with ART and arguments regarding specific “protections” not being explicitly included in Thailand’s anti-discrimination legislation. In particular, there is a detailed, up-to-date description of the grounds upon which [Mr A] is seeking a PV:
The applicant fears the following persecution, as a result of his membership of the various social groups as specified above, and/or the following significant harm:
1. Inability to subsist and sustain due to lack of employment opportunities that amounts to
significant hardship and denial of capacity to earn a livelihood of any kind;
2. Inability to subsist and sustain due to the unreliability of the quality of health care and/or
in the access of health care that amounts to denial of access to basic services;
3. Inability to subsist and sustain due to stigma and discrimination from society and family and/or lack of income due to stigma and discrimination or poor health;
4. Inability to rely upon his family for emotional or financial support because of their lack of
understanding of HIV;
5. That he will be psychically [sic] and emotionally threatened, harassed and ill-treated as a result of being a PLHIV [person living with HIV];
6. That he will be psychically [sic] and emotionally threat[en]ed, harassed and ill-treated as a result of being a homosexual man; and
7. There is no where [sic] in Thailand that the applicant can relocate to in order to avoid the harm feared since the stigma and discrimination towards PLHIV and homosexual's [sic] is country wide.

I take the word “psychically,” above, to mean “psychologically.”
A 5 July 2022 letter from [Mr A]’s treating medical practitioner, Dr [C], [advises] as follows:
… [Mr A] was diagnosed with HIV infection via Australian immigration 2010. He has been on an evolving regimen of antiretroviral [agents].
He has not had any serious opportunistic infections due to HIV. Specifically, since he has been attending [a medical] Centre for HIV management he has been accepting of all medical recommendations and has been adherent with antiretroviral therapy. His physical health is good and his immune system is robust.
He was last reviewed by myself in June 2022 and remained asymptomatic with a normal clinical examination. [Details deleted]. It is my medical opinion that he has responded well to antiretroviral therapy and has a good prognosis.
With regards to [Mr A]’s protection visa application, I would ask that the following be taken into consideration.
[Mr A] identifies as a gay man. His family and community are not accepting of this. He is fearful of retribution should they discover he has HIV.
If [Mr A] was forced to return to his country of birth (Thailand), his physical and mental health outcomes would be considerably poorer than expected here in Australia.
Furthermore, access to antiretorviral therapy in many parts of Thailand is challenging. Antiquated regimens are in use which are known to cause problematic side effects. The medication is only available in certain clinics. For [Mr A], consistent access to good quality anti-retroviral medication is essential to ensure that HIV remains suppressed, and thus minimise the likelihood of long term complications
Relevant to discussion below, I note that the drug Odefsey (25mg rilpivirine, 200mg emtricitabine and 25mg tenofovir alafenamide) has two out of three of the active components of another once-a-day drug combination called Biktarvy (50 mg bictegravir, 200 mg emtricitabine and 25 mg tenofovir alafenamide.)
The pre-hearing submission to the Tribunal, also dated 5 July 2022, draws my attention directly to two other Tribunal decisions, one of them already mentioned earlier:
The unreported decision of 1503082 AATA (Refugee) 5 October 2016, is also comparable to
the circumstances in this matter where the tribunal found that as a result of the lack of access to the necessary treatment required by the applicant in combination with the stigma and discrimination that people with HIV in certain circumstances face would place the applicant at risk of cruel or inhuman treatment. Relevant international case law also provides useful instruction with regards to assessing the complementary protections raised in this case has been outlined in previously in our submissions.
The harm the applicant fears has been recently discussed in the unreported decision of 1621844 AATA (Refugee) [8 April 2020]. In this case the Member found that the applicant had a well-founded fear of persecution for reasons of his membership of the particular social group of ‘gay men living with HIV in Thailand.’
I have had regard to both of the decisions cited. Each turns on individual facts found to have existed in the respective countries concerned at the times the respective decisions were made. In the matter of 1503082, there were Philippines-specific, and other individual, facts that do not necessarily pertain to [Mr A] individually in Thailand at the present time or in the reasonably foreseeable future. In AAT case number 1621844, dated 8 April 2020, a doctor gave expert medical evidence to the effect that Thailand had high-quality ART available, although the specific ART called Biktarvy, which was prescribed to the applicant in that case in light of his individual medical profile, “was unavailable in Thailand, was not available in generic form [with] no alternative medication.” The applicant in the matter of 1621844 also lived in a remote town in Thailand’s south, a long journey from an appropriate clinic. The general import of all this is that each case before the Tribunal necessarily turns on its own facts at the time in which it is decided.
Of particular interest in this case, the pre-hearing submission says
[Mr A] fears that he will be unable to access his life-saving antiretroviral treatment (ART) om Thailand because it would not be available there, or be to [sic] expensive to obtain or that it would be inferior to his current medication. However, [Mr A] fears that even if his ART were available in Thailand, he would be too afraid to access it because the country’s lack of effective privacy protections would mean that his HIV status would become known to others. He fears he will be ostracised from his family, friends and the community if his HIV status were to be disclosed.
[Mr A] fears that without his medication he would become too sick to work. He fears that even if her were able to physically work, that no one would hire him because of his HIV status so he would not be able to earn an income to support himself. Without employment, he would have to turn to his family for support who would be unlikely to support him because of the very same stigma. Without any ability to make a living and without any support, [Mr A] fears that he would be isolated from the community and forced to die.
In addition to his fears with regards to his HIV status, [Mr A] also expressed fears relating to his homosexuality. He expressed that he would face discrimination because of his
sexuality by employers and the community. In addition, he fears that any rumours about his
HIV status would be reinforced because of the association that HIV has historically been
associated with homosexuality ...
The submission says that “Despite same sex activity long being legal in Thailand, and the passing of the Gender Equality Act in 2015 to quell discrimination against lesbian, gay, bisexual, transgender people and men who have sex with men, homophobia can still prevent people from accessing HIV services.” Relying on data purportedly gathered between 2013 and 2016, it says
… we submit that it is open to the Tribunal to find that there is at least a more than remote chance that a person living with HIV may face rejection from family, friends, colleagues, teachers and their community, even where this risk has been reduced in some communities and that this may cause them psychological trauma.
The people living with HIV stigma index is a measure used by UNAIDS to report on the levels of HIV related stigma across various countries. The Thailand report was released following studies that were conducted in 2011. The report showed that 80% of health care workers in Thailand had at least one negative attitude towards HIV and that fifty percent of respondents revealed they use unnecessary precautions when treating a patient with HIV. While it can be accepted that since 2011, the extent of stigma against PLHIV may have reduced in certain communities, a finding that it has reduced to such a level that the risk of the applicant suffering such discrimination is no longer real, is not supported by recent information. This is especially so in the context of the applicant’s membership of the LGBTI community ...
I note that much of the evidence of discrimination cited in the submission relates specifically to transgender men and women, of which groups [Mr A] is not evidently a member. However, the examples are noted and considered. Elsewhere, the submission reports discriminatory views attitudes towards HIV+ persons measured in surveys of select sample groups at different times and in different regional locations in Thailand.
The submission appears to argue that, reports referring to “some discrimination” against HIV+ persons in Thailand should be taken to encapsulate potentially the most negative implications for [Mr A]:
If Mr [A] attempts to access treatment for HIV in Thailand, he would have to attend a
clinic or a hospital to obtain his ART and to undertake viral load and CD4 count testing at least once every 6 months. As such, every 6 months, there is a risk that his status might be disclosed either inadvertently, by negligence or because of discrimination or from disregard
for his privacy. While the risk of this occurring might be lower in the short-term, the risk increases over the longer-term.
A study conducted in 2011 found that 9% of nurses disclosed the HIV status of their patient
either directly or indirectly to their intimate partner, without their consent. Studies conducted by the World Health Organisation in 2008 found that that 34% of respondents reported breaches of confidentiality by health workers. While the more recent studies assessing stigma do not appear to address the question of disclosure without consent, there are anecdotal reports of these incidences occurring.
The submission postulates how a fear of attracting stigma could affect [Mr A]’s health:
Missing one [HIV health appointment] due to the fear of stigma could result in drug resistance
and/or treatment failure. Treatment failure occurs where a drug resistance is developed. This
is detected by a fall in a patient’s CD4 count. In these circumstances, it is necessary to change
the ART regime to a different line of drugs to ensure the continued effectiveness of treatment.
If treatment failure is not addressed, the consequences for a patient are very serious. This may
prevent second and third-line ART from being successful, significantly reducing the available
treatment options, and ultimately, significantly reducing the patient’s life expectancy.
Treatment failure consists of drug resistance, rapidly decreasing CD4 count (an indicator of
immune system strength) and very high viral load (copies of the virus in the blood). Due to a
weakened immune system, the viral load become as a high as to be easily transmissible,
patients are highly susceptible to [other] infections (often pneumonia), AIDS defining illnesses
and ultimately death.
Adherence to ART is essential in the treatment of HIV. It involves PLHIV taking all doses of
their medication, taking their doses at the right time, making sure they take their medication
in the right way (e.g. with food) and not taking their medication with other medications that
interfere with HIV treatment. It is generally recognised that the minimum level of adherence
needed for HIV treatment to work properly is 95%. Without adherence, a PLHIV has a
significantly increased chance of the virus changing and becoming resistant to the ART.
Further, it may also mean that a person becomes resistant to anti-HIV drugs similar to the
ones they are taking. Ultimately, this will hasten disease progression ...
We assert that [Mr A]’s specific HIV treatment will not be available in Thailand, and
that he will need to switch to an inferior ART which may result in side effects, treatment
failure and disease progression. In any event, even if appropriate ART was available in
Thailand, the applicant will likely not access it.
We submit that making a choice to access treatment in Thailand comes with it a risk of
disclosure of one’s HIV status which would result in a PLHIV being subjected to a life of
isolation, rejection and being ostracised. It is by no means an easy choice and is one that is
being forced upon the applicant by the Thai government’s lack of success in eliminating HIV
related stigma. A government that may have great intentions but has not succeeded in
providing the protection require by this applicant and 16,000 others in 2020. With this
information, the Tribunal must decide whether there is a real chance that this applicant, like
many others in similar positions, may forgo to seek treatment because of the stigma he is
likely to face.
Many other relevant concerns are raised and argued in the 5 July 2022 submission, including concerns over whether [Mr A] will be denied employment if his HIV+ status is discovered by an employer or prospective employer. Submissions in this mater correctly point out that although such discrimination is illegal in Thailand there are reports of its ongoing occurrence at least in some private companies there.
As to family support, the pre-hearing submissions says
[Mr A]’[s] only remaining family who he has contact with is his mother who is unaware [of] his HIV status. He has now not lived in Thailand for over a decade and only visited once
since he arrived in Australia. Contrary to the delegate’s finding that [Mr A] will have
social support, it is submitted that besides his mother, [Mr A] has no remaining ties in
Thailand. Further, [Mr A]’s only emotional support is his sister who resides in Australia. It is submitted that once his mother becomes aware of his HIV status, [Mr A] will be isolated, reject and ostracised and will have no support in Thailand ...
UNDP reported that 42.7% of gay men in Thailand reported discrimination by family based on their sexuality …
Given the above, it is reasonably likely that [Mr A]’s mother will not provide him with any support if he returns Thailand ...
At the Tribunal hearing, I asked [Mr A] to tell me who will persecute him and he said, “Society.” I asked him what form(s) the persecution would take and, telling me he could not foresee, he said , “All forms.” He went on to say that he had not “come out” in Thailand before he came to Australia and therefore had “no idea.” [Mr A] said that if he tried in future to go to a clinic to pick up his prescribed medication, “How will people look at me?” he said that Thai people are “nosy” and tend to pry into the lives of others. He said he did not know from his own Internet research whether medication options in Thailand are the same as in Australia or different. He said that if his gay profile and HIV status became known in Thailand it would be difficult for him to live there.
I put to [Mr A] that none of what he had just said seemed to indicate persecution as such. I asked him if he could be more specific about the kind of harm to which he would be subjected. His reply did not appear to be very helpful: he said that he had been a person without HIV and was now a person with HIV. He said that, although HIV is now untraceable in his body, any stress can be like a “cancer” and that in a matter of a month he might even die.
I put to [Mr A], essentially, that
UNAIDS reported in March 2020 that ‘[h]ospitals in Thailand are to dispense antiretroviral therapy in three- to six-month doses in order to prevent people living with HIV from running out of medicines and to reduce their need to access the health system during the COVID-19 pandemic.’[2]
[2] “Thai hospitals to provide three- to six-month supplies of antiretroviral therapy,” UNAIDS, 25 March 2020.
I indicated to [Mr A] that this appeared to be evidence of the state’s positive efforts to ensure and maintain the health and wellbeing of HIV+ persons in Thailand. In reply, [Mr A] said that the information to which I had just referred is not true and that the foreshadowed supply was never achieved. He did not provide any information at the hearing to substantiate the claim. He went on to say that UNAIDS and the World Health Organisation (WHO) are wrong about people having been able to access ART since the outbreak of Covid. He did not substantiate this claim either.
I put to [Mr A] that whereas some private companies in Thailand have reportedly sacked or refused to hire persons who test HIV+, working for a firm, or one such firm, would surely not be the only employment option available to people in Thailand: a lot of people work in smaller businesses, for example, with friends or for themselves. In reply, [Mr A] said he could not imagine what he might encounter in Thailand. He said that jobs are generally hard to find there. He said that if an employer requires that he submit to a blood test he did not know what he would do. He said that whereas some employers in Thailand do not require their employees or prospective employees to submit to HIV testing, the Tribunal should not assume that the chance of this happening is not real. He said, “I have no idea how I will be if I return.”
I asked [Mr A] if he was not merely engaging in bald speculation about his prospects with employers and employment in Thailand and he said that if he does not get a job in Thailand within his first six months back there, or if he gets a job that he does not like, then that in addition to the “pollution and people” would make it hard for him to survive. He went on to say that with regard to suffering discrimination whilst accessing HIV clinics, he did not know the extent of social acceptance of people like him in Thailand but that, either way, he would have to live his whole life there: “so if it’s bad, then … but now, here, I am happy.”
I invited [Mr A] to focus on his claimed fear of being persecuted for reasons of being gay, and he said he does not live in Bangkok at this time although he recalls that it is a big city as Sydney is. I put to [Mr A] that submissions through his adviser are critical of the absence from Thailand’s anti-discrimination legislation of what one might call minutely prescriptive clauses, the implication being that this left open a possibility that he might be insufficiently protected by such a framework and that this might give rise to his being persecuted, if albeit only cumulatively. I put to him, for comment, that the absence of such detail in the legislation discussed did not necessarily mean, of itself, that he faced a real chance of being persecuted for reasons of being gay. In response, he said there is snobbery in Thailand even if it is not as structured, say, as the caste system in India. He said that if he had any problem on or after return to Thailand he would not be able to tell the police because they would not care. Again, I asked him if his position here might not be based merely in bald speculation, and he said that while there are laws against sexual activity commonly associated with homosexuality, and hence “no anti-gay laws,” as he put it, there are still negative attitudes detectable in Thai society.
I put to [Mr A] that the Thai parliament is currently deliberating over a small raft of alternative bills that, depending on which, if any is passed, would legalise same-sex civil unions in Thailand, or even same-sex marriage. In reply, [Mr A] did not address the information, say, from the perspective of a habitually urban or suburban Thai. Rather, he said that such reform would not necessarily help people in the Thai countryside to overcome traditional prejudices.
[Mr A] later said he might not be able to find or afford accommodation in Bangkok. He appeared to base this claim on the position that it would be hard for him to support himself through earned income in Thailand due to his HIV+ status. He said he doubted he would ever make any friends in Bangkok. He said that while he did not think he would ever be able to afford to live in Bangkok, he could not return to Nonthaburi either because his mother would reject him. He generally indicated that he saw absolutely no other viable options. He said his brother would reject him too. However, these claims about his family also appeared to be baldly speculative, particularly in the context of the cordial if infrequent contact he evidently maintained with his brother and the fact that his mother stayed with him and his sister during a visit to Australia.
We turned to discussion about the availability of an appropriate standard of ART for [Mr A] in Thailand, in light of the advice and arguments from [Dr C]. [Mr A] said he had used the search engine Google to explore the availability of free ART in Thailand and had not been able to find any evidence of any free ART. I put to him that evidence of dispensing of free ART abounds, as shown below.
Country information indicates that antiretroviral treatment, including antiretroviral drugs, are covered by Thailand’s Universal Coverage Scheme (UCS) since 2006. According to DFAT:
Thailand has been internationally recognised for its successful implementation of universal health coverage through its Universal Coverage Scheme (UCS), introduced in 2002 …
Also known as the ‘30 baht scheme’ (the initial cost of a consultation, now free), the UCS provides basic coverage to approximately three-quarters of the population, with the remainder covered by either the Civil Servant Medical Benefit Scheme (for civil servants and their dependants) or the Social Health Insurance Scheme (for private sector employees).The UCS accounts for 17 per cent of the country’s healthcare expenditure. Funded through taxes, it places the biggest cost burden on those who are able to afford it. Consequently, the biggest beneficiaries of the scheme have been those with the lowest incomes, in particular women of childbearing age.[3]
[3] DFAT Country Information Report: Thailand', Department of Foreign Affairs and Trade, 10 July 2020, para.2.24.

A study on the cost of community outreach HIV interventions in Thailand, published by BMC Public Health on 6 January 2022, stated that in 2018, there was an estimated 480,000 people living with HIV, but “[n]ew cases are declining rapidly thanks to successful prevention programs and scaling up of anti-retroviral therapy (ART).”[4]
[4] “The cost of community outreach HIV interventions: a case study in Thailand,” Kyaw Min Soe, Katharina Hauck, Sukhum Jiamton & Sukhontha Kongsin, BMC Public Health, 6 January 2022, p.1.
A comprehensive report on antiretroviral treatment in Thailand, published by United Nations Development Program on 1 November 2013, stated that since 2006, the government added antiretroviral therapy (ART) for people living with HIV, “as part of the benefit package of the Universal Coverage Scheme, resulting in universal access to ART as the health right for every Thai citizen.”[5] It includes the following:
In 2006, Thailand integrated the HIV Care package into the existing Universal Health Coverage. The package consisted of HIV Counselling and Testing (HCT), ARV drugs, Prevention of Mother-To-Child Transmission (PMTCT), Post-Exposure Prophylaxis (PEP), laboratory testing to monitor treatment, counselling and Positive Prevention (a way of reducing HIV transmission by involving PLHIV in prevention work and strategies).[6]
[5] “The journey of universal access to Antiretroviral treatment in Thailand,” United Nations Development Program (UNDP), 1 November 2013, p.39.
[6] Ibid.
A report by Avert,[7] published in October 2019,[8] reviewed in January 2020,[9] stated that antiretroviral treatment (ART) is provided for free as part of the country’s universal health insurance scheme:
[…] In 2014 it adopted World Health Organization guidance to provide immediate ART to anyone testing positive for HIV, regardless of their CD4 count (known as ‘test and treat’). It is one of only four countries in Southeast Asia that has enabled 70% or more people living with HIV to access ART, with 75% on treatment as of 2018 – the others being Cambodia (81%), Myanmar (70%) and Singapore (78%).[10]
[7] According to its website, Avert uses “digital communications to build health literacy on HIV and sexual health. As a non-profit with over 30 years’ experience, we are a trusted provider of accessible, accurate and actionable content and resources that support informed choices.” See Our story | Avert, accessed 14 June 2022.
[8] “HIV AND AIDS IN THAILAND,” Avert, 1 October 2019.
[9] Ibid.
[10] Ibid.
[Mr A] said that two years ago there was a lack of appropriate medication in Thailand. He said he did not know if the same ART drug he takes in Australia is available in Thailand, although Thai health providers may have been using the same drugs as have been available here in Australia.
I note that, although Biktarvy’s active component compounds are available in separate drugs in Thailand, and all are evidently on the free UCS, their combination as Biktarvy in a one-tablet-per-day regime is not yet available under the same scheme. There is also still no Biktarvy generic. The same is evidently true for Odefsey, its patent holder having announced it will go generic in 2025.[11] Whereas Biktarvy has been open to patent challenges since February 2022, but that development is no guarantee that it will go generic before Odefsey.[12] Whereas there is information about generics being available in India, none has been located regarding inclusion of such in Thailand’s UCS.
[11]
[12]
[Mr A]’s adviser was given an opportunity to provide comments. She said that [Mr A] is at real risk of significant harm in Thailand in the form of “arbitrary deprivation of life.” I asked her how Thailand’s provision of free ART to HIV+ persons could reasonably sit with the notion of deprivation, which might be regarded as the act or state of being consciously denied something, even if the specific ART formula that [Mr A] is presently using would have to be provided there in a different form. I also asked her if she could explain what would be arbitrary, as distinct, say, from being “random,” about the “deprivation” to which she was referring. The adviser made some comments in response, but asked for an extension of time to provide a written submission to give her time to consult her notes from the hearing; her request was granted.
What the adviser did posit before the hearing ended was that Thailand’s ART regime is “antiquated.” She also said that there is little or no social support for HIV+ persons in Thailand. She said that, in Thailand, social and emotional support from one’s family is essential to one’s survival, implying that [Mr A] would be denied such support. She said that his age exacerbates the risk of his being harmed as a person with HIV, indicating that “age” should be regarded as a cumulative factor in this matter. I have duly noted these comments.
Regarding concerns expressed in submissions about potential delays in provision of ART causing [Mr A]’s health to decline, potentially lethally, I have had regard to the following information from the Journal of the International AIDS Society which, in December 2021, reported on a programme implemented at the Thai Red Cross’s Anonymous Clinic in Bangkok:
Methods
Data were collected from the Thai Red Cross Anonymous Clinic in Bangkok, Thailand, between July 2017 and July 2018 from clients who were ART-naïve and could return for follow-up visits. Baseline laboratory tests and chest X-ray were performed according to national guidelines, and clinical eligibility was determined based on physical examination and chest X-ray findings. Primary outcomes were retention in care and viral load suppression at 3, 6 and 12 months.
Results
During the study period, 2427 people tested HIV positive. Of these, 2107 (2207/2427, 86.8%) met logistical criteria, and 1904 (1904/2427, 78.5%) agreed to SDART. One thousand seven hundred and twenty-nine (1729/2427, 71.2%) were placed on ART, with 1257 received same-day initiation and 1576 initiated ART within 7 days; 1198 clients were successfully referred to free, sustained ART sites. Retention among eligible clients who accepted SDART service at months 3, 6 and 12 was 79.8%, 75.2% and 75.3%, respectively.
Conclusions
Same-day ART initiation hub model at a stand-alone HIV testing centre in an urban setting in Bangkok, Thailand, is highly feasible and has a potential for scaling up.[13]
[13]
I note that the Thai parliament has recently enacted new laws to protect privacy. The 2019 Personal Data Protection Act (PDPA) came into effect on1 June 2022. Key aspects of the PDPA include data processing, data collection, data storage, and data consent protocols. The legislation mandates that data controllers and processors who use personal data must receive consent from data owners and use it only for expressed purposes. The PDPA imposes punishment for non-compliance of up to five million Thai Baht in administrative fines and up to one million Thai Baht in criminal fines. Reporting indicates that during the first year of implementation, authorities will be issuing warnings instead of penalties for breaches of the PDPA.
The law firm Hunton Andrews Kurth has reported that implementation of the PDPA was delayed due the COVID-19 pandemic but came into force on 1 June 2022:
On June 1, 2022, Thailand’s Personal Data Protection Act (“PDPA”) entered into force after three years of delays. The PDPA, originally enacted in May 2019, provides for a one-year grace period, with the main operative provisions of the law originally set to come into force in 2020. Due to the COVID-19 pandemic, however, the Thai government issued royal decrees to extend the compliance deadline to June 1, 2022.[14]
[14] “Thailand's Personal Data Protection Act Enters into Force,” Hunton Andrews Kurth, 1 June 2022.
I do not assume from this development that it as of the date of enactment this law reduces to zero the chance of [Mr A]’s privacy being breached, but it seems reasonable to consider it to be evidence of willingness on the part of the Thai state to improve privacy protections for its citizens.
Post-hearing submission
On 19 July 2022, the Tribunal received the following post-hearing submission from [Mr A] and his adviser:
… Firstly, it was put to [Mr A] that people in Thailand have access to “6 months worth of
effective ART” which was implemented at the beginning of the COVID-19 Pandemic. When
[Mr A] questioned where he can find this information, you noted that an easy google
search would yield results. However, we have been unable to locate country information to
support this claim.
UNAIDS did report in 2020 that Thai hospitals were to provide three to six month supplies of
Antiretroviral Therapy (ART), however, there is no country information available that
suggests this program was implemented nor is there any evidence to suggest that it was
effective, or that it would remain post COVID lockdowns. Rather, country information
supports the claim that ART has been mostly ineffective in Thailand. According to
AIDSmap, a study conducted in 2021 found:
“The probability that people living with HIV in Thailand survive five years after
starting antiretroviral therapy was just 75%, according to a recent study published
in AIDS Research and Therapy.
….
People with a history of switching antiretroviral therapies were seven times more at
risk of dying, which was the highest risk factor identified in this study. Though the
researchers lacked the data to form a conclusion, it’s possible that changing
treatments indicates a failure of first-line treatment, and people may have had to wait
before being able to switch. This could lead to disease progression and worsening of
resistance.
Nearly 15% of people in this study had taken antiretroviral therapies with nevirapine,
which increased the likelihood of death by a factor of 1:4. At the time of this study,
guidelines in Thailand allowed nevirapine as a substitute for people who could not
tolerate efavirenz as part of their first-line antiretroviral therapy.”
The Tribunal noted that if [Mr A] returned to Thailand, he would need to switch ART
as his current regime, Biktarvy, is not available in Thailand. We highlight that you raised that
changing ART does not amount to persecution or significant harm, rather it may just be an
“uncomfortable adjustment.” We submit that if [Mr A] was to return to Thailand and
change medication to an “antiquated regime… which are known to cause problematic side
effects,” it amounts to more than an uncomfortable adjustment as it severely increases his
risk of dying.
Further, the above-mentioned study notes that “delays in linkage to medical care are
associated with a greater likelihood of progression of the disease by immunologic deterioration.” [Mr A] claims he be unable to access ART due to the stigma and
discrimination surrounding PLWHIV, and fear of disclosure. [Mr A]’s inevitable delay
in seeking ART due to stigma and discrimination, in conjunction with his older age,
substantially increases his mortality rate if returned to Thailand.
Furthermore, it was put to [Mr A] that if he returned to Thailand, he would not need to
see his remaining family- his mother and brother. Familial support is an important factor in
consideration of whether the applicant would be unable to subsist. It was also put to Mr
[A] that as a grown man he does not need to live with his mother if he returned to
Thailand, and it may even be unusual for a [age]-year-old man to still be living with their
mother. However, this suggestion does not consider that [Mr A] has been living in
Australia since 2008 and has no other family, friends or connection to Thailand. If he were
forced to return, he would have to live with his mother as he would have no where else to go.
[Mr A] has claimed that if his mother or others in their village discover his HIV status,
then he will be ostracised to such an extent that his psychological health will be severely
impacted. As [Mr A] put it in the Hearing- he is a human, not a dog.
Country information supports this claim that stigma and discrimination are pervasive within
Thai society, impacting PLWHIV in all aspects of their life including employment and access
to services, such as medication.
Avert reported in 2019:
HIV-related stigma and experiences of stigma and discrimination in healthcare are
recurring barriers that prevent people from testing for HIV… Ethnicity or migrant
nationality, sexual orientation, mental health issues or being co-infected with
tuberculosis, are additional layers of stigma that prevent people from testing.
A feature story published by UNAIDS on 17 January 2020, while focused on the successes of
Thailand’s response to HIV, states:
…many people are starting antiretroviral therapy late. “We have the medicines, but
many people are not being diagnosed fast enough,” warned Mr Praphan. Despite
tremendous progress, the HIV epidemic is not yet over in Thailand. HIV remains
concentrated among key populations… Low uptake of HIV testing among key
populations is related to the acceptability of services and stigma and discrimination,
which hinder access to HIV diagnosis, prevention and care.
According to Avert:
Thailand has one of the highest HIV prevalences in Asia and the Pacific, accounting
for 9% of the region’s total population of people living with HIV.
…
HIV-related stigma and experiences of stigma and discrimination in healthcare are
recurring barriers that prevent people from testing for HIV. Criminalisation is also
an issue, especially for people who use drugs who fear arrest or detention. Ethnicity
or migrant nationality, sexual orientation, mental health issues or being co-infected
with tuberculosis, are additional layers of stigma that prevent people from testing.
…
As access to ART in Thailand increases, so does the potential for transmission of
drug-resistant HIV. Findings from a study published in 2018, based on data collected
from ART clinics in Thailand in 2006, 2007, 2008/09 and 2013, suggests HIV drug
resistance is rising.
…
The World Health Organization (WHO) classifies Thailand within the top 30 high
burden countries for tuberculosis (TB). In 2018, just over 85,000 cases of TB were
diagnosed, and 81% of these people had a known HIV status. Of these, 10% were
HIV-positive, of whom 80% were on antiretroviral treatment. In the same year there
were 2,900 TB-related deaths among people with HIV.
Although laws and policies to protect people living with HIV have been improved,
research shows stigmatisation is common, with around one in four people (26%)
holding discriminatory attitudes towards people living with HIV in 2015.
People living with, and most at risk of, HIV also report experiencing stigma and
discrimination from healthcare workers. Overall, one in 10 people living with HIV
surveyed in 2017 reported experiencing stigma and discrimination in a healthcare
setting, and one in three said they avoided health facilities as a result. This is also one
of the main barriers undocumented migrants say prevents them from accessing
treatment.
…
Funding from international donors continues to fall. Particularly important in this
regard is funding from the Global Fund, which dropped from US $39 million in 2014
to US $13.1 million in 2018 and US $12.8 million in 2019. A total of US $11.7 million
is allocated for 2020
…
Although Thailand made enormous progress with HIV prevention in the 1990s, the
rate of decline in HIV prevalence has slowed down in recent years. Access to
prevention services and behaviour change communication has not been enough to
significantly reduce the rate of new infections…
The Department of Foreign Affairs and Trade (DFAT) stated in the 2020 country information
report on Thailand that:
2.25 Thailand has one of the highest HIV prevalences among 40 countries in the
Indo-Pacific, accounting for nine per cent of the region’s total population of people
living with HIV. Civil society reports that approximately 480,000 people in Thailand
were living with HIV in 2018, with 18,000 people dying of AIDS-related illnesses.
Thailand’s HIV epidemic is concentrated among gay men, sex workers, transgender
people and drug users. Sexual partners of these populations, migrants and prisoners are also vulnerable to HIV infection. There were approximately 6,400 new HIV
infections in 2018, most of whom are understood to have occurred either through
unprotected sex (estimated at 90 per cent of all new infections) or unsafe drug
injecting use. HIV prevalence is declining due to successful HIV prevention
programs, including the distribution of about 40 million free condoms per year.
Between 2005 and 2016, AIDS-related deaths declined by almost two-thirds. As a
result of HIV testing programs, 91 per cent of people living with HIV in 2016 were
aware of their status. Approximately 75 per cent of all people living with HIV were on
treatment, with 71 per cent being virally suppressed. However, HIV-related stigma
and experiences of discrimination in healthcare remain barriers that prevent some
people from testing for HIV. Criminalisation is also an issue, particularly for people
who use drugs and who fear arrest or detention.
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.
Considering all the factors cumulatively, stigma and ostracism, discrimination in access to
services including health services, job discrimination and lack of familial support, we submit
that there is a real chance that [Mr A] will not be able to subsist as he will be unable to
obtain or keep a job and he will be discriminated against in access to services. We submit that
it is not an insubstantial or remote chance of serious harm, in the form of inability to
subsist, for the essential and significant reason of membership of the particular social group
of ‘gay men living with HIV in Thailand’.
Finally, we note that [Mr A] had issues with the interpreter. During the course of the
Hearing, [Mr A] made several attempts to communicate with his representative that he
was having problems with the interpreter. However, as it is inappropriate to talk during the
Hearing, we were asked not to speak to each other. As [Mr A] was not afforded a
Natural Justice break, we were only instructed about the interpreter issues after the Hearing
had concluded. [Mr A] took issue with the interpreter’s use of language and lack of emotive expressions, and also interpreting things incorrectly. For example, [Mr A]
claims he did not say “fake news,” but rather, he was attempting to articulate how in reality,
the HIV treatment is not “sophisticated” as put by the Member and there are significant
barriers to accessing medication due to stigma and discrimination, as supported by the
aforementioned country information and previous submissions. [Mr A] became
frustrated as he believed the interpreter was unable to correctly articulate his claims,
particularly the psychological harm he fears if forced to return to his village.
[Mr A] further expressed concerns regarding the interpreter not interpreting
consistently throughout the Hearing. At several points during the course of the Hearing, Mr
[A] or myself had to ask the interpreter to interpret what was being said. However, as a
significant proportion had already been said, it was impossible for the interpreter to
remember it all and interpret accordingly.
All the citations in the submission a footnoted to their sources but I have removed them for flow in this document.
Regarding the issue of a “natural justice break,” there is no statutory requirement on the Tribunal to provide what the adviser described, perhaps based on parlance originating in the Department, as a “natural justice break.” There was no request for a break of any kind. The Tribunal usually lets applicants know that if they need to take a break, say, to visit the toilet, then all they need do is ask. The hearing ran for just under three hours, but there was no request at the hearing for a “natural justice break” or any break at all. In any event, time was allowed for the post-hearing submission received on 19 July 2022.

I am confident that I took in [Mr A]’s sincere emotional investment in the overall case he was making at the Tribunal hearing; I am not satisfied that there were significant shortcomings in the interpreting. The only example provided in the submission relates to the sue of the term “fake news”. [Mr A]’s adviser appears to have misunderstood how the term “fake news” entered the discussion. She suggests it was, or was the result of, interpreter error; rather, it was a term I used when checking with [Mr A] whether he meant to be suggesting that USAID and WHO reports about the six-month advance dispensing of ART in Thailand might be unreliable. After due consideration of the concern as articulated, I do not think the adviser has raised a significant issue in this instance. The adviser’s other concerns about not everything being interpreted appear to relate mainly to the period towards the end of the hearing when I invited her to make closing oral submissions. I recall her mentioning that not all of what she was saying to be was being translated for [Mr A]’s benefit. By the same token, she was not pausing often or long enough to allow the interpreter easily to follow the protocol proposed at the beginning of the hearing: speaking in small parts before moving on so that the interpreter has time to capture and interpret, as I had asked all to do before the hearing proper was underway. In any event, I summarised for [Mr A]’s benefit the points being made by his adviser and they both had the opportunity granted to the to provide further written submissions, of which they availed themselves.
The submission argues that [Mr A] became “frustrated” during the hearing “as he believed the interpreter was unable to correctly articulate his claims, particularly the psychological harm he fears if forced to return to his village.” However, the submission provides no examples of any such failings. Meanwhile, according to his own evidence, in his PV application and at the Tribunal, [Mr A] is not even from a village; rather he is from a soi or side-street of [an] arterial road in Nonthaburi (population over 254,000 in 2019[15]), which is the principal “city” of the district and province of the same name, for many years subsumed into metropolitan Bangkok, and located near [details deleted]. There are several large public hospitals within reach of Nonthaburi, such as the Phra Nang Klao General Hospital, the Nonthavej Private Hospital, the Srithanya mental health public hospital, the PSK Clinic in Ladprao, the Bamrasnaradura Infectious Diseases Institute and the Ladprao General Hospital. Not all of these facilities draw attention to dedicated HIV support and ART services on their websites, but Nonthaburi is connected to them and to all parts of Bangkok by both the underground public rail and, from Bang Sue station west of Chattuchak, the Bangkok Skytrain. To call any of the parts of Nonthaburi where [Mr A] claims previously to have resided a “village” appears quite substantially misleading.
[15] Registration Office Department of the Interior, Ministry of the Interior, Thailand, 31 December 2019.
Regarding the PSK clinic in Ladprao, near Nonthaburi “city,” and only a few kilometres from where [Mr A] formerly resided, I have located the following information in an article dated 28 June 2022:
When Ponsakorn Surapuchong was a volunteer dermatologist at the Thai Red Cross AIDS Research Center (Anonymous Clinic) in 2010, it didn’t take him long to notice how HIV/AIDS patients at the time were left out of the loop. For 11 years, Pongsakorn has been dedicating his medical expertise to raising awareness on sexually transmitted diseases to help remove the stigma. In 2022, he opened his first clinic, PSK, where patients can go anonymously to receive counseling and testing—and forgo medical records. While disclosure of HIV status is widely debated, BK spoke with him about his clinic and how he believes it could be the model for patients to reach out for treatment more effectively.
Your clinic allows patients to get their test without revealing themselves. Why?
We got this idea from the Anonymous Clinic but we want to make it more practical. Patients who are testing for AIDS and HIV usually share one concern: they want their personal information to be as private as possible. But most clinics might not be able to comply with their wishes, especially when these clinics are state-funded. True, clinics like the Anonymous Clinic may identify patients with telephone numbers or emails, but if people want to have a free blood test, the clinic still requires ID and will record the results.
Many patients are still reluctant to reach out for medical treatment and diagnosis, since there’s a possibility that the result—when they are HIV positive—will affect their work and personal life, or even their insurance. So, we think that foregoing the identification process will make people feel more secure and comfortable enough to have their tests.
Does that cause any difficulty with your work as a medical provider?
Since the Anonymous Clinic has been doing something similar for 30 years, I don’t think it’s any harder to provide counseling services and tests this way. As a medical provider, I believe we must have trust in our patients, that they’re truly concerned and in need of our help, that they seek our help with no hidden agenda. True, people can find loopholes to exploit this. I heard from the Anonymous Clinic’s staff that some people try to have another person do blood tests for them. But we can screen their identities with their ID cards—just as a precaution since we don’t actually record anything.
Do you think people are becoming more comfortable receiving tests like this, compared to the past?
Younger people show more confidence and become well-informed about the disease. Some of them may still be concerned due to the old stigma and media representations. But overall, it’s progress ...
What are some of the common misconceptions people still have about HIV and AIDS in Thailand?
“You’ll die in 5 to 10 years if you get AIDS,” is something people still believe, even today. With current medical breakthroughs—if we look from the global scale—the technology has become so advanced that helping people survive from disease may no longer be our priority. Priorities have shifted to how people can live with AIDS when they grow older, or how they can handle comorbid patients with heart diseases or dementia. People who are HIV positive aren’t going to die in 5 to 10 years. They can live up to or more than 80. And they will.
What can help shatter the stigma and old misconceptions attached to the disease?
Several things need to be done—be it from society or the medical profession. Sexually transmitted diseases have been brought to light and conversations occurred, but it’s still the harsh reality that even among healthcare professionals discrimination is still very high. Some still associate the disease with a patient’s carelessness. Questions like “Why didn’t you use protection?” or “How did you let yourself get it?” are still common.
One patient when I was treating him told me he was surprised that I didn’t scold him like other doctors did. Sexually transmitted diseases like AIDS or HIV aren’t something people want in the first place. Accidents happen. Even skillful [sic] chefs can get a cut. So can those who have sex. As a medical professional, we should admire their efforts and the sense of responsibility that they come to us with. We should treat them like any other patients. Our job is to help them, not to judge them—especially when we don’t have a full understanding of how they live their lives or what they’ve been through.[16]
[16]
The post-hearing submission argues that neither [Mr A] nor his adviser have been able to locate any independent country information suggesting the three- to six-month ART dispensing program during COVID lockdown was effective, or ever even implemented, or “that it would remain post COVID lockdowns.” By definition it is not a program designed to operate post-pandemic, although it would be reasonable to expect that it might roll over as long as community health protocols such as lockdowns continue. In any event, there is no evidence that the program announced by the Thai government, and intended to be implemented by public hospitals, did not proceed. Just as importantly, I mentioned this program at the hearing, inviting comment from [Mr A], in the context of illustrating a general willingness on the part of the state to help rather than harm HIV+ citizens.
The post-hearing submission argues that were [Mr A] to be required to change his ART regime in Thailand, this might give rise to serious or significant harm due to potentially significant side effects, again, of transferring to an “antiquated” regime, and potentially to death. Meanwhile, [Dr C] has said that [Mr A]’s ART regime has evolved over time, presumably in response to side effects and availability of more streamlined and convenient treatments; it therefore seems reasonable to expect that it will continue to evolve and be monitored all along the way.
Regarding the lack of availability of Biktarvy and Odefsey as free treatments at this time in Thailand, independent country information indicates to me that a whole range of antiretroviral drugs is available in Thailand, including Tenofovir, Dolutegravir and Atripla. Although Biktarvy is not available, its components are evidently available separately. As noted earlier, Biktarvy is designed to prescribe a regimen of at least three antiretroviral drugs from two or more different classes. It is the new product which is “a fixed-dose combination of bictegravir (an integrase inhibitor) with emtricitabine (a nucleoside reverse transcriptase inhibitor) and tenofovir alafenamide (a nucleotide analogue).” Medications used in Thailand’s hospitals and public health service are listed in Thailand’s National List of Essential Medicines (NLEM), which was updated on 1 June 2022.[17] Tenofovir and Dolutegravir are among the many antiretroviral drugs listed on the NLEM.[18] Presumably, [Mr A] was being treated with this combination, or one quite like it, for some years until Biktarvy came alone. There is no evidence before me that while living on this treatment, [Mr A] was potentially being deprived of life, let alone arbitrarily. It may be said logically to follow that, if it became necessary for [Mr A] to revert to the arguably less satisfactory regime of three tablets in multiple doses a day, due to the cost of Biktarvy making it currently out of his reach, he would continue to live, and with an undetectable viral load, as he did in Australia under that regime. The adviser’s comments in relation to this issue do not help to persuade me that Thailand’s HIV treatment regime is “antiquated” or would give rise to a real risk of arbitrarily depriving [Mr A] of life.
[17] “Thailand National List of Essential Medicines (NLEM),” MIMS, 1 June 2021.
[18] Ibid.
The post-hearing submission says that the statistic disclosing that only 75% of HIV+ persons in Thailand avail themselves of ART is, in and of itself, testament to discrimination, inadequate and “antiquated” standards. The source relied on in the submission does not go so far as to put that particular gloss on the figure, although it does indicate that potential users including gay men and “trans” persons may be reluctant due to personal shame and subjective fear of stigma. On my reading, the 75% figure does not disclose any nuance as to whether the 25% of eligible persons tend more to live in the provinces or, say, in metropolitan centres with potentially closer and more anonymous access like Bangkok. I note also that DFAT reports that some of the 25% not availing themselves of ART in Thailand may be drug users who fear exposure to law enforcement. ON the evidence before me, I do not accept that the 75% statistic is evidence of significant manifestations of stigma directed at HIV+ persons.
I note the establishment and operation of an NGO called the Thai Network of People Living with HIV and its recent expansion through the creation of the Thai Network of Youths Living with HIV. According to UNAIDS, both these groups, which are established in Bangkok, offer social outreach for persons with HIV+ issues including shame and stigma.
A 31 August 2020 The Borgen Project article reports that “there is an association between depression and internalized shame, as well as between depression and perceived stigma,” based on a study on people living with HIV in northern and northeast Thailand (Isaan).[19] The article also identifies organisations that provide support, including mental health services, to HIV positive people:
TREAT Asia (Therapeutics Research, Education and AIDS Training in Asia) is an organization working toward increasing access to psychiatric care. It also works toward improving mental health services for those living with HIV in Thailand ...
Service Workers in Groups (SWING), a Thai organization, provides HIV services and supports sex workers ...
[19] “HIV in Thailand and mental health,” The Borgen Project, 31 August 2020.
Whereas Thai public hospitals may lack specialised mental health support for HIV+ and LGBT outpatients, particularly in the countryside, there are community NGOs in Thailand such as the Rainbow Sky Association, which is run by and for LGBT people, that reportedly work within this gap to provide peer counselling services, primarily online and by telephone.[20]
[20] “Gaps in responses to LGBT issues in Thailand: Mental health research, services, and policies,” Ojanen, T T., Ratanashevorn, R., Boonkerd, S., Psychology of Sexualities Review, Vol. 7, No. 1, The British Psychological Society, March-May, 2016, p.50.
I note the following observations from the International Bar Association[21]:
In Thailand, society is fairly accepting of LGBTI people, especially in Bangkok and the surrounding areas. This is evident across society, with businesses catering specifically for the LGBTI community; Parliament members who are openly transgender; and even champion boxers from the LGBTI community. In 2019’s major election, there was strong support for the LGBTI Parliament representatives. There is also a budget airline that encourages the transgender community to work as cabin crew. There appear to be very few issues in Thailand with the LGBTI community.
However, despite this acceptance towards the LGBTI community, there are still no specific laws that protect LGBTI rights in Thailand ...
In situations of discrimination, it is often hard to prove the incident occurred as employers would almost never state that promotions or hiring of staff is done based on the sexual orientation of a candidate. The common phrase used in such situation is ‘does not meet the job requirement’. There is also no evidence of candidates challenging the matter. Having said that, there are several LGBTI people working in the Thai Government; some of whom are in quite senior positions. Again, there are no statistics available to indicate discrimination based on their sexuality relating to promotion or hiring …
In the absence of significant legislation protecting the LGBTI community, the pending Civil Partnership Bill is eagerly anticipated to become law. This would be the starting point for some form of protection towards the LGBTI community within Thailand. Hopefully, enactment of the Civil Partnership Act will trigger further legislative implementations that would further widen the scope of protection towards the LGBTI community in Thailand …
[21] “Where does Thailand stand in terms of LGBTI rights and interests in enterprises, employment, immigration and property relations?” IBA,
The ILO reported[22] in 2014:
Masculine gay men [in Thailand] have more or less the same access to jobs as heterosexual men. However, gay men who are not very masculine or are openly gay will have some barriers to employment. Generally, gay men hide their sexuality and later come out in a workplace only if it is gay friendly or after they feel some security in their job ...
Due to stifling mainstream workplace culture that is not open to diverse gender expression and sexuality, some gay men choose to also opt out of mainstream jobs in large public or private institutions, or stay in the closet.
[22] Gender Identity and Sexual Orientation in Thailand, ILO, 2014,
I note that recent reporting[23] shows that HIV infection is almost evenly split between adult males and adult females in Thailand:
People living with HIV [in 2019]
People living with HIV       (all ages)           470 000
People living with HIV       (0–14)               3300
People living with HIV       (women, 15+)     210 000
[23]
People living with HIV       (men, 15+)        260 000
It is reasonable to assume that amongst the males in this survey there is a high proportion of gay males compared to the gay male population overall. Nevertheless, a 2018 survey[24] of Thai soldiers reported that 90% of around 4600 persons surveyed identify as heterosexual. Even allowing for some misrepresentation or obfuscation regarding sexual orientation amongst those reporting, it is still apparent that gay males make up a small minority of Thailand’s HIV+ population. It seems appropriate to bear this in mind when considering who is affected by any shortfalls in available treatment.
[24] “Rising prevalence of HIV infection and associated risk factors among young Thai Men in 2018,” Nature, 8 April 2021, See also: “Unexpectedly high HIV prevalence among female sex workers in Bangkok, Thailand in a respondent-driven sampling survey,” PubMed, 6 May 2013,
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[25] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[26]
[25] MIMA v Rajalingam (1999) 93 FCR 220.
[26] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[27] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[28]
[27] 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
[28] Sun v MIBP [2016] FCAFC 52 at [69].

104. Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
105. “Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment,” and “torture,” are further defined in s.5(1) of the Act.
106. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.
107. “Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
108. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
109. Accepting that [Mr A] is a national of Thailand, I find that Thailand is the receiving country in this matter.
110. [Mr A]’s claims to complementary protection are essentially the same as his refugee claims. Those claims have essentially failed to meet the “real chance” test. Generally, they also fail as complementary protection claims due to the “real risk” test imposing the same standard as the “real chance” test. However, there are some specific issues to consider in closer detail.
111. [Mr A] claims that he will suffer significant harm in the form of being “arbitrarily deprived of life” due to the lack of free access to Biktarvy or Odefsey treatment under Thailand’s UCS. The argument here is that “arbitrary deprivation of life” does not require an element of intention, the requirement for there to be an intentional element in the harm feared pertaining only to “torture,” “cruel or inhuman treatment or punishment” and “degrading treatment or punishment.”
112. A practical meaning of the term “arbitrary deprivation of life” was explored in AAT case number 1804021 [2018]:
119.Complementary protection was inserted into the Act in 2012 as a result of the Migration Amendment (Complementary Protection) Act 2011. According to the Explanatory Memorandum for the Bill, s.36(2A)(a) derives from Articles 2 and 6 of the International Covenant on Civil and Political Rights (ICCPR). Relevantly, Article 6 states that every human being has the inherent ‘right to life’ and that no one shall be arbitrarily deprived of their life. Case law from other jurisdictions considering a positive right to life, including the provision of medical treatment or measures to increase life expectancy, are not directly applicable to the interpretation of s.36(2A)(a) because of the difference in emphasis and wording.
120.The expression 'arbitrary deprivation of life' is not defined in the Act. There is no requirement that the arbitrary deprivation of life be intentional or arise from an intentional act or omission. According to the Macquarie Dictionary,[36] the meaning of 'arbitrary' includes: ‘discretionary’; ‘not attributable to any rule or law’; ‘accidental’; ‘capricious’; ‘unreasonable’; ‘uncertain’; ‘unreasonable’; ‘using or abusing unlimited power’; and ‘uncontrolled by law’. The Oxford Dictionary of English[37] defines ‘arbitrary’ as, for instance, ‘based on random choice or personal whim, rather than any reason of system’. 'Deprivation' includes preventing a person from having or using something. Arguably 'deprivation' may [imply] some form of positive action or omission rather than death which is a consequence of general conditions of poverty or lack of facilities in a country.
[36] Macquarie Dictionary (Macquarie Library, Revised 3^rd edition 1997).
[37] Oxford Dictionary of English (Oxford University Press, 2^nd edition 2005).
121.In accordance with Ministerial Direction No.56, the Tribunal must have regard to the Department’s PAM3 Refugee and humanitarian - Complementary Protection Guidelines[38] when assessing claims for protection. Unless policy is unlawful or there are cogent reasons as to why the Tribunal should depart from the policy, the Tribunal should have regard to the government policy or policy from regulatory agencies. However, policy should not simply be applied without independent scrutiny. To do so would be an error of law (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 and Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634). The Complementary Protection Guidelines have been produced by the Department and are both comprehensive and useful. They do not appear to be inconsistent with authoritative case law on the application of s.36(2A)(a). Indeed, there have been few cases in Australia on the meaning of this provision.
[38] Department of Home Affairs, PAM3 ‘Refugee and humanitarian - Complementary Protection Guidelines’, section 12.1, as re-issued 21 May 2015.
122.According to the Complementary Protection Guidelines, while intention can be a relevant indicator of ‘arbitrary deprivation of life’, it is not a necessary element. The Guidelines refer to arbitrary deprivation of life as involving elements of injustice, lack of predictability or lack of proportionality and state that the concept of arbitrariness is broader than unlawfulness …
123.In MZAAJ v Minister for Immigration and Anor [2015] FCCA 141, the Federal Circuit Court found the Tribunal was not in error when it failed to consider that the prospect of the applicant dying as a result of being unable to obtain dialysis in Sri Lanka would fall within the concept of arbitrary deprivation of life. In particular, the Court noted at [42] that the concept of arbitrary deprivation of life 'does not concern the consequences of scarce medical resources in developing countries'.
124.This was accepted on appeal by the Federal Court in MZAAJ v Minister for Immigration and Border Protection [2015] FCA 478. His Honour, Justice Pagone noted at [6] that the words ‘arbitrarily deprived' should be given their ordinary meaning. Given that any lack of adequate medical treatment would not result from the applicant's ethnicity or particular circumstances but from the general circumstances faced by all Sri Lankans, it is apparent that his Honour considered this did not amount to an arbitrary deprivation of life and would be excluded by operation of s.36(2B) in any event.
125.This approach was followed more recently in the case of SZDSD v Minister for Immigration and Anor [2018] FCCA 1029 where the Federal Circuit Court focused on the question of whether the applicant would be denied medical treatment 'on an arbitrary basis' (at [60]). Relevantly, Judge Baird rejected the submission that the fact there was a prospect of the applicant dying of a health condition would enliven the application of the criterion for complementary protection 'without more' (at [59]-[63]).

113. In the present matter, [Mr A] submits that even “accidental death” arising from the lack of free availability of Biktarvy and, for that matter, Odefsey will amount to his being “arbitrarily deprived of life.” After duly considering the useful discussion above, I am of the view that accidental or unintended death is not the same as arbitrary deprivation of life: there needs to be more than the lack of a preferred resource involved. Having regard to the Federal Court in MZAAJ v Minister for Immigration and Border Protection [2015] FCA 478, in particular its findings with regard to limited resources and whether they affect a nation’s population generally[39], and also having regard to the evidence of free alternative medical treatment in Thailand, I am not satisfied that the current lack of access to free or subsidised Biktarvy and Odefsey in Thailand is a substantial ground for finding that there is a real risk that [Mr A] will suffer “arbitrary deprivation" of his life.
[39] On this point, it is not irrelevant that HIV affects large numbers of heterosexual males and females in Thailand as well as gay males:
114. [Mr A] also claims, implicitly if not explicitly, that he will suffer “cruel or inhuman treatment or punishment” and/or “degrading treatment or punishment” in the form of intentional discrimination, stigma, threats, harassment, ostracism and other ill-treatment in the course of trying to access HIV treatment, social support, housing, employment and other basic needs and whilst trying to integrate back into Thailand generally. I accept that [Mr A] may suffer some discriminatory attitudes, nosiness, exclusion, ostracism and snobbery, as he has essentially claimed. However, on the evidence before me, I am not satisfied that any of this harm will rise even cumulatively to the threshold of “cruel or inhuman treatment or punishment” or “degrading treatment or punishment.”
115. Having considered all of the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Thailand, there is a real risk that [Mr A] will suffer significant harm.
116. Accordingly, I am not satisfied that [Mr A] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
117. There is no suggestion that [Mr A] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).
Request for consideration under s.417 of the Act
118. [Mr A] has asked, in the event of affirming the primary decision in his PV application, that I might refer his case to the Minister in the context of s.417 of the Act, which gives the Minister non-binding powers to consider substituting a negative PV decision on compassionate and humanitarian grounds.
119. Specifically, one of the grounds raised in this case appears to be that [Mr A] is the sibling of an Australian citizen or resident who has supported him socially and emotionally for several years. He has also given evidence of a close social and emotional bond with his nephew who, I presume, is an Australian citizen. It is implied there would considerable emotional and psychological distress for these close family members were [the applicant] to be removed to Thailand.
120. This ground appears to correspond directly with the following Ministerial guideline:
Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

121. In light of this ground appearing to correspond closely with Ministerial guidelines, I refer this matter to the Minister.
decision
122. The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

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.
…

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1711983 (Refugee) [2022] AATA 3780

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Cases Cited

Statutory Material Cited

MZXKX v Minister for Immigration [2008] FMCA 567

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198

Plaintiff M196 of 2015 v Minister for Immigration and Border Protection [2015] HCATrans 240

[2022] AATA 3780

8 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice