1821127 (Refugee)
[2022] AATA 3735
•31 August 2022
1821127 (Refugee) [2022] AATA 3735 (31 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Ashley Ognenovski
CASE NUMBER: 1821127
COUNTRY OF REFERENCE: Vietnam
MEMBER:Peter Katsambanis
DATE:31 August 2022
PLACE OF DECISION: Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Statement made on 31 August 2022 at 12:21pm
CATCHWORDS
REFUGEE – Protection Visa – Vietnam – HIV positive – applicants’ son had now been granted Australian citizenship – particular social groups – people living with HIV in Vietnam – women living with HIV in Vietnam – severe stigma and discrimination – lack of adequate access to medical treatment – effective protection measures not available – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
MZXKX v Minister for Immigration [2008] FMCA 567
SCAT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 625Any 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 Home Affairs on 6 July 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Vietnam, applied for the visas on 1 November 2017. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants were persons in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The applicants appeared before the Tribunal on 19 August 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants were represented in relation to the review.
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 (Cth) (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, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b),(c).
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
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.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ISSUES
The issues in this case are whether there is a real chance that if the applicants return to Vietnam they will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam, there is a real risk that they will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
Claims and evidence
Protection Visa Application
In their application, the applicants stated that they were a married couple who had been married in Vietnam on [date] May 2008. They arrived in Australia on [date] December 2008 on valid Australian student visas. They had visited Vietnam on three separate occasions since 2008, with their last return to Australia being in April 2016.
The first named applicant was born on [date] in [District 1], Can Tho City, Vietnam. He has one sister and two brothers who live in Australia, and one brother living in Vietnam. The first named applicant stated that he had lived at the same address in [District 1], Can Tho, Vietnam from birth [until] December] 2008. He stated that he had completed schooling in Vietnam and then graduated from university in June 1998 with a [degree]. He had also completed various courses [in] Perth, Western Australia from 2008 to 2015, culminating in [a degree]. The first named applicant claimed that he had worked as a director in a [store] in [District 1], Can Tho from September 1997 to November 2008. He had then worked in Australia from December 2008 to June 2010 on a part time basis in a [business], from July 2010 to July 2015 as a [occupation] in a [workplace] and from August 2015 onwards as a manager in a [business].
The second named applicant was born on [date] in [District 2], Cau Mau Province, Vietnam. Her mother, one sister and two brothers are living in Vietnam. The second named applicant stated that she had lived at the same address in [District 2], Ca Mau, Vietnam from birth until [December] 2008. She completed her schooling and also attained [qualifications] in Vietnam. The second named applicant claimed that she had worked as a [Occupation 1] in Can Tho, Vietnam from September 2004 to November 2008. In Australia she had worked in several [businesses].
The applicants have one child, [name deleted], who was born on [date] in Australia. This child was originally included in the protection visa application as the third named applicant. However, as discussed below, all claims relating to this child were later withdrawn and the child is no longer an applicant in this matter.
The applicants listed their ethnicity as Vietnamese and their religion as Buddhism.
The applicants stated that they were seeking protection in Australia because they could not return to Vietnam, and each referred to the claims made in their respective statutory declarations that were going to be separately provided to the Department.
Together with their application for protection, the applicants provided copies of their Vietnamese passports, their respective birth certificates, their marriage certificate and the birth certificate of their child, [name deleted].
Statutory declaration of first named applicant
In a statutory declaration dated 9 November 2017, the first named applicant stated that he and his wife, the second named applicant, both found out they were HIV positive in 2012 as they were required to undergo routine health checks during his wife’s pregnancy. In [year], his wife gave birth to their son, who is healthy and not HIV positive.
The first named applicant stated that after receiving the HIV diagnosis, the couple were shocked and afraid. They knew that they could never live in Vietnam because their lives and their son’s life would be at risk and that they have no future there.
The first named applicant stated that he had been working at a [shop] in Perth for around eight years. He initially worked part-time but was then offered a full-time position in 2015 and the business also offered to sponsor him on a subclass 457 visa. The application for this visa was lodged in 2015 however it was not successful, and his request for ministerial intervention was also refused. He stated that he held fears for the safety of himself and his family if they were forced to return to Vietnam. He feared that they would suffer serious and significant harm in Vietnam due to the couple’s HIV status including physical and psychological harm. He feared that they would be at risk of persecution and that their ability to subsist would be threatened as a result of being people living with HIV. He also feared that they would be at risk of being arbitrarily deprived of life, subject to cruel or inhumane treatment or punishment, and/or degrading treatment or punishment.
The first named applicant claimed that he feared that his son would face harm as a result of being the child of people with HIV. He feared that his son would be subject to severe psychological harm as a result of stigma and discrimination, and that his capacity to subsist would be threatened when he became orphaned, because the couple would not be able to reliably and consistently access treatment for their condition.
The first named applicant stated that when they found out that they were HIV positive, they were both devastated and could not believe that something like that would ever happen to them. However, they decided that they had to focus on their child and with the help of their medical team in Australia they were both slowly coming to terms with their diagnosis. He stated that he was in good health. He did not smoke, do drugs or drink alcohol and he always listened to his doctor’s instructions. He sees his doctor approximately every 3 to 4 months and he always does what is recommended to maintain his good health. He stated that living with HIV can be extremely tough. In Australia they have seen no discrimination as they have been able to keep their health information private. He claimed that everyone had equal rights and they can get support for their condition from doctors, nurses, social workers and NGOs. He claimed that being HIV positive was something he had slowly come to terms with however it was not something that he would ever tell his parents or sister in Australia, and it was not something that he could ever tell anyone in Vietnam. He feared that they would not accept him or his wife because in Vietnam people who are HIV positive are viewed as being bad people.
The first named applicant stated that only his brothers in Australia knew of the couple’s HIV condition. Because his brothers had received an education in Australia, they were more open and accepting. In contrast to Vietnam, the privacy protections in healthcare in Australia mean that he does not have to be concerned that the community would find out that he associates with people who are HIV positive. In Vietnam, even if someone might personally be accepting of a relative’s HIV condition, they would not want to have anything to do with them for fear they may also be stigmatised.
The first named applicant claimed that he feared that if he had to return to Vietnam, he as well as his wife and son would face discrimination because he was HIV positive. He tried to ensure that people, including his extended family in Australia, do not find out that he is HIV positive because he fears their reaction, as in Vietnam people who are HIV positive are viewed as being abnormal. He claimed that in Vietnam they treat people with HIV differently. If people came to know about his HIV status, they would deliberately stay away from him, refuse to touch him or shake his hand, not even to talk or communicate with him. He had heard that people had trouble accessing medical care, especially dental treatment or even going into someone’s house once their HIV status becomes known.
It was claimed by the first named applicant that in Vietnam there was no awareness or understanding about HIV. People think that just having a conversation with someone who is HIV positive would infect them, so they stay as far away as possible from people they know to be or think are HIV positive and either do not want to talk to them or abuse them. He had heard of HIV positive people being harassed or physically injured in public due to being recognised for their status. He feared that he would be completely isolated from society in Vietnam due to his HIV status and would be unable to find a job to provide for his family. He stated that people with HIV are seen by society as being a very bad person, immoral, a gangster, burglar, drug user or other criminal, and are considered to be at the very bottom of society. He believed it would be really hard to find someone in Vietnam who would like to work in the same place as an HIV positive person.
The first named applicant stated that in Vietnam HIV was known as a very dangerous virus and it was associated with the end of one’s life, with death, as if it is very easy to spread, and one must stay as far away as possible from people with the HIV virus. In Vietnam, people even think you can contract the virus by breathing the same air as the person near where you are standing. He knew that in Vietnam, people who are HIV positive were completely isolated from the community because he had known someone who had HIV. The first named applicant claimed that this person was isolated from the community and no one would speak to him. The first named applicant claimed he knew that his neighbours did not want to have anything to do with him because they were scared they would contract HIV just from talking to him.
The first named applicant claimed he had only personally known this one person who was HIV positive in Vietnam, around 20 years ago. This person was isolated from others and no one wanted to talk to him or be around him. He understood from community gossip that he got some medicine, but he had to pay for it himself, it cost a lot of money and it could only be purchased on the black market. He had heard that this person had died because he didn’t have any money to get the treatment anymore.
The first named applicant stated he had also read many stories on the Internet and on social media which made him very afraid of the harm they would face if they return to Vietnam. He had seen people posting about HIV positive people in the community saying they are untrustworthy, immoral, robbers, drug users or criminals because of their status. He claimed that in Vietnam, people who are HIV positive are viewed as being abnormal and are treated poorly because there was no understanding or awareness about HIV. The only people in his own family that knew that he was HIV positive were his two brothers. He could not even tell his parents or his sister about his condition as he feared their reaction if they were to find out that he was HIV positive.
The first named applicant stated that there was nothing a person with HIV can do to change their HIV status, and this was a very stressful thought. In Vietnam, to seek treatment means you lose your privacy and will always fear going out in public, be afraid to work or associate with others. He stated that these fears would always exist in your mind as well as your fears for your own health.
The first named applicant worried that he and his wife would not be able to find any job in Vietnam. He stated that working in [specified] industries was a very physical job with some touching involved. A customer who heard about his HIV status would try to stay away or go to another ‘safer’ shop rather than his workplace. For his wife, [Occupation 1] work is seen as a high risk of touching and spreading the disease, and she would definitely not be able to find a job. He claimed that culture plays a major part in employers not wanting to employ someone with HIV. Even if the employer was educated about HIV and the modes of transmission, they do not want to employ a positive person out of fear of disruption to the workplace due to how other employees would react if they knew that their colleague was HIV positive. Sometimes, if an employer finds out about an employee’s HIV status, they would even suggest that the employee leave of their own accord to avoid embarrassment and discrimination at work.
The first named applicant claimed that he would not even know how to seek HIV treatment in Vietnam. He was diagnosed with HIV in Australia after leaving Vietnam, so he had only received treatment in Australia. He feared that any treatment he may be able to find Vietnam would be inferior to his current treatment regime. He claimed that he did not have any viable support networks in Vietnam. He did not even know if there are services in Vietnam for people who are HIV positive, as he was diagnosed in Australia and had been receiving his treatment here. He had a brother in Vietnam, but his family have their own financial worries and would not be able to help support the applicants’ family. The first named applicant’s brother also does not know about his HIV status and the first named applicant thought that his brother would reject them if he comes to know this, even though they were family.
The first named applicant stated that his hometown was an agricultural area along the Mekong River where most people make a living in that area from selling produce at the floating markets. If the family had to move frequently to protect their son from discrimination, he didn’t know how they could keep on finding new HIV treatment centres and he feared his condition may become impossible to manage.
The first named applicant stated that in Vietnam treatment was going to be very costly, bad and not as safe as in Australia. He had been told that he and his wife needed to take the correct treatment and need to have it every single day or they would develop drug resistance and no longer be able to fight the virus. He was sure that they would not have reliable and consistent access to the treatment they need in Vietnam and if they got sick and the treatment wasn’t working anymore, he didn’t believe that Vietnam had any of the more advanced treatments to ensure that they stayed alive.
The first named applicant claimed that there was no health insurance cover available in Vietnam, the country does not have a welfare system or sufficiently resourced organisations to support people living with HIV so they would have to pay for everything from their own income. He stated that even if they could get treatment, appropriate monitoring was not available as most or all doctors who work in the countryside or small towns, and even some of the cities, have very low knowledge of medicine and risk the patient’s lives. He claimed that the system of training doctors is corrupt and doctors who work in rural areas have commonly failed high school, nursing school or training college. He claimed that it was common practice for a patient to have to provide a bribe if they want to be treated well as it was a popular practice in Vietnam.
The first named applicant stated that it was also well-known that drug companies try to corrupt doctors to write prescriptions for their own products. To maximise profits, the doctor can get commission from the pharmacy to give other medications which may be too expensive or the wrong treatment for the patient. He claimed this would be life-threatening for himself and his wife if they were to be prescribed the incorrect treatment for their condition. He claimed that he had read in the news recently that a company called VNpharmar in Vietnam, supplying medications to public hospitals, had been found to be giving bribes to the former Deputy Minister for Health. They had also been found to supply fake medication, causing serious problems with the price of medication in the market which had been sold to patients who think they are real and treating their illness.
The first named applicant claimed he had no idea where they could live if they return to Vietnam. Because of their HIV positive status and the complete lack of confidentiality and human rights protections, once their status is recognised there would be nowhere they could go to escape the discrimination. Even finding a house to live in would be challenging as no one would want to rent to people with HIV. He did not know where they could go or even if they would be allowed to move throughout the country to avoid discrimination and stigma due to their HIV status and where they could safely and reliably access treatment. He believed that the treatment towards people with HIV was the same everywhere in Vietnam.
The first named applicant also expressed grave concerns on behalf of his young son. He feared that if they were to return to Vietnam and it became known that he and his wife were HIV positive, his son would have a very bad life. People in Vietnam do not understand HIV and would think that they could get HIV from his son and would separate him from the other children. He was worried that because of the couple’s HIV status, his son would not be able to go to school and would be isolated from others. The parents of his friends would stop them playing with him because they believe their children would become infected. He claimed that if they were forced to return to Vietnam, their son would be separated from not only his grandparents but his friends and the only life that he knows. He claimed that his son was doing very well at school in Australia, and he feared that his education would be disrupted and suffer negatively if he had to leave. He was afraid that his son would be prevented from going to school or bullied by his friends and teachers, his future would be ruined, and he would become emotionally depressed.
The first named applicant claimed that when he and his wife succumbed to their illness in Vietnam their son would have nobody to care for him, he would be isolated by the community and treated just the same as if he also was HIV positive. He claimed that orphan children in Vietnam are treated very badly and sometimes subjected to domestic servitude, forced to beg on the streets or are even trafficked. He feared that without parents around to protect his son that he would be at serious risk of harm as an orphan, he would have no means of support and no means to change that fact as he won’t be able to go to school.
The first named applicant claimed that he also feared that there was nowhere they could turn to seek help and safety. He feared that if he had to return to Vietnam, it would immediately become known that he and his wife were HIV positive as there were very few protections in place to protect people’s privacy, even when they go to the doctor. Although he understood that there were supposed to be laws in place to protect people from being discriminated against in employment and healthcare, in practice these laws don’t work, and it is too hard and costly to try to get help to enforce the laws. He claimed that as a Communist country, in Vietnam there was no right to human rights or dignity. Instead, the first priority was the priority of the country. This means that instead of giving privacy protections and treating people with humanity and dignity there were no secrets, and the focus is instead on control. He claimed that the local police and council are notified of the identity of people with HIV. They believe they have a responsibility to control people with HIV and keep them under constant surveillance as a matter of public health. He claimed that the local council and the police also often tell others in the community that people should stay away from known people with HIV. Because of this, the couple would not be able to keep their HIV status private and confidential.
The first named applicant stated that he, his wife and his son had travelled to Vietnam since their diagnosis with HIV, however they only ever went for short visits and they never told anyone about their HIV condition. They were also careful to ensure that they had enough treatment with them when they travelled to ensure that they never had to approach health authorities who would have registered their HIV condition and their HIV status would then have become public knowledge. He stated that it was the police who were telling the community to keep their distance, stay away, do not make contact or communicate in order to prevent the spread of the virus. He claimed that this was causing much of the isolation and discrimination experienced by people with HIV. People would also take it on themselves to tell others in the community when they find out someone has HIV.
The first named applicant claimed that people who are diagnosed as being HIV positive are reported to the government, who in turn notify the police. Because there is so much stigma and discrimination surrounding people who are HIV positive, the police follow you and assume that you are a criminal. He stated that he could see that people with HIV in Vietnam do not have equal rights or even respected human rights. There was no confidentiality with the authorities and no effective laws to protect HIV positive people from all of the harms they face. Once a person declares their HIV status they will always be under the control and suspicion of the local councils, the police and the health department. He stated that government policy demanded that all HIV positive people report to the police and local councils. They say this is to prevent the spread of illness and control the virus, but it is done without any respect for confidentiality or privacy rights.
The first named applicant stated that he also knew that the authorities in Vietnam treated street children and orphans very badly and this made him further fearful of what would happen to his son when he and his wife were not around to protect him anymore. He claimed that the authorities were also powerless to prevent the community from mistreating, isolating and degrading people with HIV and family members of people with HIV. He knew that the family would therefore live a very lonely life until they died from aids defining illness leaving their son an orphan.
Statutory declaration of the second named applicant
In a statutory declaration dated 9 November 2017, the second named applicant stated that she had come to Australia in 2008 with her husband who came to Australia to complete further studies. In Vietnam she worked as a [Occupation 1] for approximately nine years and since coming to Australia she had found part-time work as a [Occupation 2]. It was her ambition to one day own and run her own [business].
The second named applicant stated that she found out that she was HIV positive in 2012 when she was required to undergo routine health checks during her pregnancy. After she was diagnosed, her husband had to do a blood test which indicated that he was also HIV positive. In [month] she gave birth to her son who was healthy and was not HIV positive. She claimed that she and her son had been listed as dependents on a subclass 457 visa lodged by the first named applicant, however the application was not successful, and they were refused ministerial intervention.
The second named applicant claimed that she held fears for her safety and her family safety if they were forced to return to Vietnam. She feared that they would each be subjected to serious and significant harm in Vietnam due to the couple’s HIV status. She has held these concerns since her diagnosis, however they thought that it was best to first try to get their residency using the skills they had. She feared that she would be subject to serious physical and psychological harm if she returned to Vietnam. She feared that the couple would face severe stigma and discrimination and that their capacity to subsist would be threatened. She also feared that her husband and she would not be able to access the medication needed to survive and that their son would become an orphan. She believed that if their son became an orphan due to their HIV condition that he would face even greater harm.
The second named applicant stated that since her diagnosis in 2012, she had tried to live a very healthy life. She did not smoke, do drugs or drink alcohol. She listened to her doctor and took her medicine as prescribed. She believed that because of all this, if she remained in Australia with access to the right medications and monitoring her prognosis was good, as her condition was under control and undetectable. She claimed that being HIV positive was something that she was slowly coming to terms with. Sometimes it was very hard, and she got upset but she knew that if she took her medicine and continue to take care of her health with the resources available in Australia she would live a long happy and normal life. She did not believe that she would have that opportunity if she returned to Vietnam.
The second named applicant claimed that in Vietnamese society females did not have equal rights. They have the rights only to give birth to the children and responsibility to raise the child growing up. They did not have the right to complain about their unequal rights. As a woman with HIV, the social worth depended on her ability to give her son a good future. HIV status meant that in the eyes of society in Vietnam she had failed, ruining his chance at a peaceful life or a secure future.
It was claimed by the second named applicant that her family in Vietnam did not know that the couple were living with HIV. She knew that if they found out, they would be very shocked to learn this. She worried that she would be forced to stay away from all their friends and relatives to avoid them finding out about her HIV status. She claimed that if she was forced to return to Vietnam, she knew her family’s reputation in society would be ruined as well as the emotional and financial burden of their health condition. She claimed that her brothers and sisters have their own families and can only just cover their own costs and could not support them when they got sick or lost their jobs because of the treatment of people with HIV. She stated that her mother was a widow and would not be able to cope with the worst possible news of their diagnosis and it would ruin her forever.
It was stated by the second named applicant that people in Australia were more educated about things like HIV, so the people here are friendly, peaceful and generous in their sense of humanity. She claimed that people living in Vietnam have a stubborn mindset, their cultural beliefs are stuck. She stated that in contrast, her brothers-in-law in Australia had become better educated since living here for a long time, their attitudes had changed, and they have offered care and support for the family since they told them about their status. She stated that there is no one in Vietnam who would do the same. She claimed there were a lot of misunderstandings and prejudice surrounding HIV and people who are HIV positive. She claimed that living in Vietnam with HIV is extremely tough, not only socially but also mentally. She believed it was even harder for a family when both parents are positive status. They would be suffering from two times the fear, doubly obsessed with discrimination and twice as isolated from the community. She feared that when people learn of the couple’s HIV status in Vietnam, they would face discrimination and become isolated from society. People would keep themselves far away from the couple and the government would exercise control over them and they would be denied their basic human rights. She did not know how they will even continue to exist after the status had become recognised.
The second named applicant claimed that she had been reading stories on the Internet about people living with HIV in Vietnam. All of them had been victims of extreme isolation and abandoned by the community. She had read in the news that human rights had been all but abandoned in Vietnam and she had real fears that herself and her family would face stigma and abuse due to the couple’s HIV status. They had heard about the treatment of people with HIV in Vietnam through social media. She understood that everyone with their condition was facing discrimination, bad treatment and community isolation. Even their children have to face this isolation and stigma when they are innocent, either positive or negative. She claimed they were so depressed, often turning to crime to survive or suicide due to isolation, mental suffering and depression. The second named applicant stated that in Vietnam, fears of contracting HIV are extremely widespread. Everyone was afraid of being infected, as people believe that having HIV means certain death. Even if their family members do not know about their HIV status, because they are so afraid of the perceptions, they would have little to do with them because of the negative treatment they would face. She claimed that people were so afraid of contracting HIV that they would completely isolate someone if they find out they have this disease, even refusing to communicate with the person. She had heard of others being verbally abused and even physically beaten due to extreme fears of their HIV status.
The second named applicant claimed the treatment and care for HIV in Vietnam was very expensive, and patients would have to pay from their own income because there is no health insurance for their condition. Even if you have the confidence to face the community discrimination and access the few services available, the couple would need to have financial support to pay for the medication and treatment. If they could not hold a job to earn money due to the discrimination, she feared their lives would be at risk. She was concerned that they would have to face not only the physical difficulty of accessing treatment in Vietnam but also the social barriers preventing them from seeking HIV services and the discrimination they would encounter once they start accessing the treatment. She understood that in Vietnam, people with HIV are even denied regular medical and dental care. This would mean that their lives would be in danger should anything happen to them even if it was unrelated to their HIV condition.
The second named applicant stated that the government in Vietnam had made it compulsory for people with HIV to report their status to the local council and local police. It was claimed that this was to try and control the spread of the disease, but instead it seemed to her to be making the whole situation worse for people with HIV in the country. She claimed that all of the authorities treat people with HIV as if they are the very worst of criminals. She claimed that the reporting process was not confidential and is contributing to the isolation of people with HIV from the rest of society. The local government reports them to the police who then have the power to list them as a criminal and they then lose all of their basic rights.
The second named applicant claimed that there was no equality of respect for human rights in Vietnam, even for people suffering from terrible illness. She stated that in Australia they had been warmly treated by every doctor, nurse, social worker and support organisation. She was very grateful for their emotional support during the treatment, and they had inspired the couple to continue living without fear. She claimed that privacy protections in Vietnam were not good so once the couple were to approach a clinic to get help, the whole community would learn of their HIV condition. It was general knowledge that Vietnam’s respect for human rights was lacking especially with respect to privacy.
The second named applicant stated that she was also worried that she would not be able to find or keep a job if they were forced to return to Vietnam. She claimed that HIV status was so unacceptable that people commonly lose their jobs as soon as they tell their status to their employer or it reaches their workmates by gossip. She claimed that the laws in Vietnam were ineffective and do not prevent this treatment. She stated that in the [industry] where she was working, she could not find any job to work either as an employee or employer. Customers would not want to be served by a person who was HIV positive. She had heard that most people will refuse to employ or work with someone who has an HIV positive status. She claimed that the authorities were not able to prevent this kind of discrimination in employment because these ignorant beliefs about HIV and the spreading of private information by gossip are a part of Vietnamese culture. She stated that once the HIV status becomes known, the worker will be fired, demoted or have their time cut short. Even if they were not actually fired from the job, they would soon be forced to quit the job out of frustration and ill-treatment on a day-to-day basis causing them serious psychological harm.
The second named applicant stated that she used to live in a remote area of Vietnam, where the houses have no address numbers. She did not know where the couple would live if they were forced to return to Vietnam. She doubted they could have any kind of stable life, constantly having to move houses or change jobs and running away. They would always be trying to hide or escape from each community to protect themselves and their son once their status was recognised.
It was claimed by the second named applicant that her greatest fear was that if they were forced to return to Vietnam, her son would face discrimination because she and her husband were HIV positive. She was so worried that even though her son was innocent, he was going to be completely isolated from society and would end up being mentally affected by the stigma of this disease. She claimed that her son was born in Australia and had never lived in Vietnam. Australian culture was all that he knew. All of his friends and most of his family are in Australia, he is doing well at school and he has a bright future here. She claimed that things would be so much worse for him if they were forced to return to Vietnam and people find out that both his parents were HIV positive. If people were to find out that the couple were HIV positive, they would make life unbearable for her son as they would not want to associate with them as they think that they may catch HIV from being in the same room as them. She claimed there was no understanding about HIV and her son would be separated from the other children.
The second named applicant claimed that it would break her heart to see her son be discriminated against due to the couple’s HIV status. Even though he does not have the condition, once the couple’s status was known, her son would face isolation from his school friends and family. People would stay away from him, refuse to talk to him or shake his hand or even breathe the same air out of fear that they would be infected that way. She stated that she knew that in some instances, children had been expelled from school because they were HIV positive and, although her son was not, they might think that he is because of the beliefs and misunderstandings in Vietnam about HIV. She was very concerned that her son’s education would be interrupted, and his studies would be detrimentally affected if he was forced to go to Vietnam. If her son could not access appropriate education, she did not know how he would survive when the couple died from their condition.
The second named applicant claimed that she also worried that the couple would not be able to access the treatment they needed to survive. If this occurred, then her son would become orphaned. She did not know who would care for her son if the couple died from AIDS. Everyone would assume that her son was also HIV positive and would not want anything to do with him. She claimed that if the couple died of AIDS, their family in Australia would have looked after their son as if he was their own family, but in Vietnam there was nobody. People would be scared that her son was also HIV positive, and the fact that his parents would have both died from HIV would only fuel the misconceptions about HIV transmission. She feared that with nobody to look after her son, he would be living on the street and would be at risk of violence. She claimed that the police were also unwilling to help street children and they sometimes even hurt them. She did not want her son to grow up without parents and without a future. She believed that if that happened, he would face serious mental harm as well as physical harm with nobody to protect him.
Medical Evidence
The Department was provided with a letter dated 26 May 2017 from [Dr A], Clinical Immunologist at [a named Clinic].
In this letter, [Dr A] stated that she was a specialist clinical immunologist and experienced in HIV care. She had been the specialist supervising the medical care of the first named applicant and the second named applicant. She had regularly reviewed both of them at [Hospital 1] since 2011. She outlined the diagnosis for each of the patients and highlighted past and current medications that had been prescribed to them.
In relation to the first named applicant, [Dr A] stated that he had an asymptomatic HIV infection and had been under the care of the immunology service at [Hospital 1] since 2011. He had optimally controlled HIV infection since commencement of therapy and maintained excellent adherence to ART. He had a healthy range CD4 T cell account and sustained undetectable plasma viral load for the past six years. He needed only infrequent outpatient review not more than 4 to 6 monthly at [Hospital 1]. In the long-term, his chronic care can potentially be transferred to the community setting under the care of a GP. He had been able to work full-time with no disability. His overall outlook for good health and the productive working life until retirement age was excellent. He was unlikely to develop opportunistic infections or other complications of HIV infection requiring high-cost care provided he continued therapy in the long-term. He was on a regimen with a favourable long-term toxicity profile given his individual circumstances. [Dr A] claimed that costs of antiretroviral agents were likely to decrease over time and the first named applicant’s excellent health ensured he was able to work full-time as a skilled worker, pay tax and contribute to the country positively.
In relation to the second named applicant, [Dr A] stated that she had an asymptomatic HIV infection and had been under the care of the immunology service at the [Hospital 1] since 2011. She had optimally controlled HIV infection since commencement of therapy and maintained excellent adherence to ART. She had sustained undetectable plasma viral load for the last six years with significant restoration of her CD4 T cell count. Although this had not reached normal range, she was at low risk of opportunistic infections. She needed only infrequent outpatient review and in the long-term, her chronic care could potentially be transferred to the community setting under the care of a GP, along with her husband. [Dr A] stated that the second named applicant’s overall outlook for good health and a productive life was excellent. She was unlikely to develop any complications of HIV infection requiring high-cost care provided she retained access to therapy in the long-term. She was on a regimen with a favourable long-term toxicity profile given her individual circumstances. Costs of antiretroviral agents were likely to decrease over time and her excellent health ensured she could work full-time in the future. [Dr A] stated that the second named applicant was currently the main carer for her [son].
In relation to both applicants, [Dr A] stated that access to ART was not guaranteed if they were to return to Vietnam and they almost certainly would not have access to the specific regimen which they were on now as it is not yet off patent. They would have to be revised to an alternative regimen. If they were unable to access an alternative potent regimen and good health care, a period of treatment would lead inevitably to a decline in immune function and risk of HIV associated complications including aids and death. They would not be able to support each other and their young child if they developed significant HIV associated illnesses.
The delegate refused to grant protection visas to the applicants on 6 July 2018.
Application for Review
The applicants applied to the Tribunal for a review of the delegate’s decision on 19 July 2018. The applicants also provided the Tribunal a copy of the delegate’s decision record and a copy of the accompanying notification letter.
On 3 August 2022, the applicants’ representative informed the Tribunal that the applicants’ son (previously the third named applicant) was withdrawing his application on the basis that he had now been granted Australian citizenship. The Tribunal accepts this is a valid withdrawal.
Further Statutory Declaration from first named applicant
In a statutory declaration dated 10 August 2022 and provided to the Tribunal on 12 August 2022, the first named applicant stated that he was continuing to rely on his previous statement dated 9 November 2017 and wanted to reiterate his fears and concerns about returning to Vietnam. He claimed that his main fear about returning to Vietnam was that he would not be able to access his current HIV medication and he would get sick and not be able to work. He stated that they could not return to a communist country because nothing was confidential, and their privacy was not protected. He was scared about what would happen if his HIV status was disclosed. He feared stigma and discrimination from the community, employers and his family.
The first named applicant stated that the hospital had an obligation to report their positive status to the police. Once the police were aware, they were not required to maintain confidentiality and the police would treat people like him as criminals. He stated that people would be very scared of himself and his family, and feared them like Covid-19, but even worse because HIV was lifelong.
The first named applicant stated it was extremely expensive to access the health system in Vietnam and if they were forced to return to Vietnam, they would not be able to afford the treatment and their health would decline. He claimed that he knew of a young man who had access to his medication on the black market and had paid US$1000 for three months’ worth of medication, which converted to 22 million Vietnamese dollars. He believed that this gentleman had now passed away.
The first named applicant claimed that he believed that he would be unable to seek employment in Vietnam because of the stigma surrounding HIV. He would have to inform his employer of his health condition. In Vietnam, privacy was not protected and if you do not report your condition to your employer, the health department would inform your employer. He claimed that this meant he would have no income to feed his family and he was very fearful for their future.
The first named applicant stated that his son, who he referred to as [name], was now an Australian citizen and had never been to Vietnam. He claimed that there were significant cultural and language barriers for him. He stated that his son did not know of their circumstances and he believed that they were Australian like him. He claimed that his son did not know that they might be forced to leave.
The first named applicant stated that in June 2018, he and his wife had found out that they were expecting their second child. Their baby was born in Australia in [year] without HIV. They were very concerned about their children’s safety because they have family members with HIV. He claimed that people in Vietnam they would also assume the children had HIV. He stated that if they could not obtain employment to live in Vietnam their baby would be at serious risk of harm. If their condition deteriorated because they cannot access their medication, their children may be forced to live in an orphanage where he feared they would suffer further harm. The first named applicant claimed that [his son] spoke very little Vietnamese and would not be confident to attend school in Vietnam. His child was an Australian citizen and had been educated in Australia all his life. He could not read or write Vietnamese and would be severely disadvantaged if they return to Vietnam. He stated that the other children would not socialise with him, they would isolate him because of his parents’ positive status, and other parents would tell their children they were a diseased family, so his children would suffer.
The first named applicant claimed that his parents, his sister and two older brothers were all Australian citizens and had been living here for a very long time. He stated that his parents had been here for over 20 years. He had no type of support in Vietnam. He had an older brother who lived in Vietnam, but it would be extremely difficult for the brother to support him. They used to own a business together but once the first named applicant left Vietnam the business was sold. He claimed that people were very poor in Vietnam and could not feed themselves let alone support his family. He claimed that his community in Vietnam were very busy with their lives, were also experiencing severe hardship and they would not be able to support him.
The first named applicant stated that there were no human rights protected in Vietnam for people like him and people would not protect him. If anything, he claimed that the police would mistreat him more than others and the police network was far-reaching so you cannot escape from them in Vietnam. He claimed that there was a new national identity system which attaches medical records to your identity and wherever his family moved they would be identified by the police.
The first named applicant claimed he had been blacklisted for fleeing Vietnam because it was a communist country where they track their civilians. He claimed that when he arrived in Vietnam, he would be subjected to a health examination, then they would blacklist him because his status would be known. He claimed that everyone with HIV is blacklisted and once he failed a health check, they would disclose his status in his records without his consent and this would be stored on his national ID card. He claimed that he was considered to have an infectious disease and it was very difficult for him to be in contact with others. He claimed that his family would experience discrimination every day because they criminalise people like him and no one would protect him or his family because of their HIV status.
Further statutory declaration from second named applicant
In a statutory declaration also dated 10 August 2022 and provided to the Tribunal on 12 August 2022, the second named applicant stated that when she was first diagnosed with HIV, she was severely affected psychologically. She was very concerned for her children’s health and it felt like death was hanging over her head. She then started taking her medication and began to feel better. She feared that if she returned to Vietnam, she would start feeling sick again, both physically because she cannot access her medication but also psychologically.
The second named applicant claimed that she was very concerned about her children’s well-being if the family were forced to return to Vietnam. She claimed that she would not be able to continue her treatment regime and she would be physically ill, and unable to properly care for her children. She would not have the energy to care for her children the way she could in Australia because she would be frail and weak. She was also concerned for her children’s mental health if they were to return to Vietnam because they would not have friends to play with and would experience extreme loneliness. She believed that the parents of other children would not allow their children to play with hers because of their health status.
The second named applicant stated that she felt very sad when she thought about how the situation was going to impact her children. She claimed that her youngest child was only [age] years old, was born in Australia and she believed that the child would be at serious risk of harm if they returned to Vietnam. She claimed their health would be declining, and they would not have income so they would not have the financial or physical capacity that is needed to raise their children the best way they can. She was extremely scared and felt very helpless.
The second named applicant claimed that the couple do not work or study at the moment and do not have support from anyone. She claimed that her father passed away six years ago, and her mother was home in Vietnam. She stated that her mother needed support herself because she was very fragile and there was no way she would be able to help the second named applicant and her family. She claimed that she had a younger brother in Vietnam who supported her mother with food, as that was all he could provide for her. She claimed that if she was forced to return to Vietnam, she could not work to support herself let alone her mother.
The second named applicant claimed she was extremely stressed and had to take sleeping pills to sleep at night because she struggled with insomnia. She stated that her doctor prescribed those pills to her, but she tried not to take them often as they can’t afford to pay for the medication regularly. She believed she could not sleep at night without these pills because her anxieties and worries kept her up. She claimed that she experienced anxiety often but had never access professional support because she could not afford to pay. She claimed that she felt very scared about returning to Vietnam since they first submitted their application for a protection visa. She stated that she was afraid that if they were forced to return to Vietnam their life would be very bad. She felt like they were at the end of the road and were filled with worries about their children and their future. She claimed that if she was forced to return to Vietnam, she would be unable to work. She claimed that if you have a contagious disease and you attempt to seek help at a medical centre, your health issues would be openly discussed and spread in the community therefore she would not be able to get a job. She stated that people would perceive them to be bad members of the community and they would discriminate against her family.
The second named applicant claimed that her doctor in Western Australia told her there may be a black market where her medications could be available to buy, but it would be very expensive. She stated that her medication was not offered for free in Vietnam and she would have to pay for her ART as it was a lot more expensive than Australia. She claimed that because the couple would not be working, they did not know how they would be able to afford their medication and they would have to take life day by day. She worried a lot about her health because if she was not healthy, she could not take care of her children. She claimed that her father died in a car accident, her mother relies on her brother’s support, and her sister had to support herself so there was nobody to help her children. She claimed that everybody was busy with their lives, they were all experiencing hardship and they were struggling to help themselves so there was no chance they could help her family. She claimed that there was also no welfare support available in Vietnam.
Further medical evidence
The Tribunal was also provided with a further letter from [Dr A] dated 3 August 2022. In this letter [Dr A] provided an update of the medication taken by applicants, indicating the couple were both currently being treated with a drug with the brand [name]. In all other aspects, [Dr A] paraphrased and repeated the statements made in her letter provided to the Department that was dated 26 May 2017.
Submissions from representative
In a submission from the applicants’ representative, that was signed and dated by the applicants on 10 August 2022, the representative stated that if the applicants returned to Vietnam, they would be subject to persecution or otherwise would face significant harm within the meaning of the Act for reasons of their membership of the following social groups:
·people living with HIV in Vietnam (PLHIV)
·family members of PLHIV in Vietnam; and
·women living with HIV in Vietnam
The representative stated that because of the couple’s HIV status, they would be placed at risk of persecution by the community, including family and the state. The representative repeated claims made by the applicants in their previously provided statutory declarations and stated that both applicants had been diagnosed with HIV in Australia in 2011 and had been receiving effective treatment since that time. They feared that if they return to Vietnam, they would be unable to access their life-saving antiretroviral treatment (ART) because it would not be available there, or would be too expensive to obtain, or would be inferior to their current medication. However, they fear that even if their ART was available in Vietnam, they would be too afraid to access it because of the country’s lack of effective privacy protection, which would mean that their HIV status would become known to others and they therefore feared they would be ostracised from their family, friends and community.
The representative stated that the couple feared that without their medication they would become too sick to work and they feared that even if they were able to physically work, that nobody would hire them because of their HIV status so they would not be able to earn an income to support their family. Without employment, they would have to turn to family for support, but their family would be unlikely to help because of the very same stigma. Without any ability to make a living and without any support, the couple feared that they would be isolated from the community and forced to die. If they died, their two young children would be forced to go to an orphanage where they would face even greater harm.
The representative added that in addition to the applicants’ fears with regards to their own HIV status, the applicants have also expressed fears relating to their two young children, who are not HIV positive, because of their membership of the social group ‘family members of people living with HIV’. They have expressed that their children would also be subject to serious and significant harm because it would be assumed that, like their parents, they were also HIV positive.
The representative argued that the harm the applicants would face in Vietnam, including severe stigma and discrimination, and lack of adequate access to medical treatment, also amounts to significant harm, including arbitrarily being deprived of their lives, being subject to cruel or inhumane treatment or punishment and being subject to degrading treatment or punishment.
The representative argued that the persecution that the applicants were likely to face included psychological harm as defined by the Act and as outlined in SCAT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 625, and harm as considered in the matter of MZXKX v Minister for Immigration [2008] FMCA 567. The representative also argued that an unreported decision of the Tribunal from 2016 was also comparable to the circumstances in this matter whether 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 inhumane treatment. It was also stated that relevant international case law provided useful instruction with regard to assessing the complementary protection raised in this case.
The representative also argued that the applicants feared the following persecution, as a result of their membership of the various social groups previously outlined and the following significant harm:
·inability to subsist and sustain due to the unreliability of the quality of healthcare and/or in the access of healthcare that amounts to denial of access to basic services;
·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;
·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;
·inability to rely upon family for emotional or financial support because of their lack of understanding of HIV;
·that they will be physically and emotionally threatened, harassed and ill-treated as a result of being a PLHIV;
·that their children will be physically and emotionally threatened harassed and ill-treated as a result of being family members of PLHIV;
·educational opportunities for the applicants’ children will be extremely limited because of their vicarious association with a PLHIV. The community will be fearful of being infected by them due to stigma;
·increased and compounding stigma due to the second named applicant’s membership of being a woman with HIV; and
·there is nowhere in Vietnam where the applicants can relocate to avoid the harm feared since the stigma and discrimination towards PLHIV is countrywide.
In a further submission dated 15 August 2022, the applicants’ representative outlined the applicants’ claims, provided arguments rebutting the delegate’s decision and submitted country information in support of the applicants’ claims. The representative argued that the applicants were each persons to whom Australia had protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. The Tribunal has read and considered this submission prior to making its decision in this matter.
Tribunal Hearing
At the Tribunal hearing, the representative confirmed that one of the applicants’ children was now an Australian citizen and therefore no longer part of this application whilst the other child was born after the application for review had been lodged and was also not included in the application.
In his evidence to the Tribunal, the first named applicant stated that he had been born and raised in Can Tho, Vietnam. He claimed that his parents were now living in Perth, Australia. They were retired and his father was [age] years old. He had one older sister and three older brothers. His sister and two brothers lived in Perth, Australia. His other brother was still living in Can Tho, Vietnam. The first named applicant stated that he and his family were currently living with his uncle in Perth, Australia.
The first named applicant confirmed that he had studied [at] university in Vietnam and had then worked in the family [shop] which was located in Can Tho. He claimed that he operated this shop with his brother, however after the first named applicant left Vietnam the brother ceased operating the store two or three years later. The brother now worked [for] a small [business] and continued to live in the family home in Vietnam.
The first named applicant confirmed that he married his wife, the second named applicant, before they left Vietnam and stated that they came to Australia together. He claimed that prior to leaving Vietnam he had not experienced any problems in Vietnam and added that to be allowed to study overseas you needed to get a police clearance in Vietnam.
100. The first named applicant confirmed that he arrived in Australia in 2008 on a student visa and studied for around 2 ½ years. He stated that since his arrival in Australia he had worked in a [shop], which was owned by one of his brothers. But he added that he had to stop working at the [shop] after he submitted his application for review to the Tribunal because he had been refused work rights by the Department. When asked how he managed to provide for himself and his family for so long without work rights, the first named applicant stated that he had been saving his money from the time he first arrived in Australia and that he also had to rely on support from his brothers.
101. The first named applicant confirmed that he and his wife had two [children]. He confirmed that his oldest child had been an Australian citizen since February 2022.
102. The first named applicant claimed that he first found out that he was HIV positive after his wife became pregnant with their first child, around 2011 or 2012. He did not know how he had contracted HIV and confirmed that he had never had a blood transfusion, had never been an intravenous drug user and had never been a sex worker. He stated that he just did not know how he contracted HIV or who he had contracted it from. He added that when his wife discovered she was HIV positive, her blood count was extremely low.
103. The first named applicant stated that he was receiving treatment at [Hospital 1] and that the only treatment he was currently receiving was the prescription of ART tablets. He stated that when he initially commenced the treatment, he would take two tablets a day. His regime had then been changed to one big tablet a day and he was now on one small tablet. However, his doctor had told him that soon an injection would become available that he would only need to take every two months and he would no longer need to take tablets every day once he started taking this injection.
104. The Tribunal asked the first named applicant if HIV caused him any problems in his everyday life. He responded that the couple had to take their medication and must make sure they do not forget to take it. He claimed that when he first started taking the medicine, he felt uncomfortable but then he got used to it. His doctor had advised him to take the medication at night before bed rather than in the morning.
105. When asked who else apart from himself and his wife knew that they were HIV positive, the first named applicant stated that his two brothers in Australia knew but his parents and the uncle that he lived with did not know. When asked why he would not tell these family members, the first named applicant stated that in Vietnamese culture if they found out somebody was HIV positive, they would consider them guilty to their family and ancestors. He added that they would be considered to not be a good person. He confirmed that his sister in Australia also did not know about their HIV status. He stated that he had not told anybody else apart from his two brothers and claimed that even his son did not know. He confirmed that his children did not have HIV.
106. The first named applicant was asked how his brothers felt about his HIV diagnosis. He responded that they accepted it because they lived in Australia and had absorbed the local culture. He added that one brother was a [occupation], and the other brother owned the [shop] where the first named applicant had previously worked. He claimed that as the owner of the shop, his brother needed to know about his condition to sign the paperwork to allow him to work. When questioned about what paperwork needed to be signed, the first named applicant clarified that it was the work contract and documentation required when his brother had applied to sponsor the first named applicant on a subclass 457 visa. He again confirmed that in the 10 years since their diagnosis nobody apart from the two brothers had come to find out about the couple’s HIV status.
107. The Tribunal asked the first named applicant what he feared about returning to Vietnam now or in the reasonably foreseeable future. He responded that if he returned to Vietnam his parents and his son would know that he had to return because he was sick and he added that his son believed the family were ‘Aussies’ and did not know that their parents were sick. He stated that if he returned to Vietnam a lot of people would find out that the couple were sick because they would have to access treatment in Vietnam.
108. The Tribunal pointed out to the first named applicant that if he was forced to return to Vietnam it would not be because he was sick, but it would be because he did not have a valid visa to remain in Australia. He responded that if he was forced to return to Vietnam, the first thing he would need to do is ensure he could continue his treatment because the virus remained asleep while he took his medication but if he stopped then the virus would multiply. When asked what would stop him from continuing to access treatment if he returned to Vietnam, the first named applicant stated that in Australia medicine was supplied to him for a certain period but if he returned to Vietnam, he would have to look for a source of supply.
109. The Tribunal then pointed out to the applicant that the country information it had accessed indicated that ART treatment was widely available in Vietnam. The country information indicated that this treatment had previously been provided by international donors but was now provided under Vietnam’s Social Health Insurance system (SHI). In relation to HIV, access through the SHI included access to ART treatment, other chemotherapies, medical supplies, HIV testing, and medical services for babies born to HIV-positive mothers, among other services. It was also pointed out to the applicant that country information indicated that the Vietnamese government’s national guidelines in relation to HIV that were issued in December 2021 appeared to be in line with World Health Organisation (WHO) recommendations on diagnosis and treatment of HIV. This country information also indicated that HIV drugs were centrally procured by the Vietnamese federal government, and the most current national guidelines had nominated the drug TLD as a first-line preferred ART regiment for adolescents and adults, including women of childbearing age, which was consistent with WHO recommendations. The Tribunal also pointed out that it had country information available to it to indicate that in 2022 there were 11 HIV testing and treatment services available in his region of Can Tho and six HIV testing and treatment services available in Ca Mau, where the first named applicant’s wife had lived. There was also a Centre for Disease Control located in Can Tho.
110. In response, the first named applicant stated that Vietnam was a Communist country, and the government controlled the media and the press. He claimed that if he returned, he would have to declare that the couple was sick because the government control sick people and treat them badly as if they were criminals. He stated that Vietnam was now issuing ID cards with a chip to track people and all personal information was recorded in that chip so wherever they went other people would know about their HIV status. He claimed the police would try to manage and control him in order to control the disease from spreading. He stated that the information the Tribunal had was from the press, but the reality was different in Vietnam as the Communists control information. He claimed that the government says drugs are free but, in reality, there was corruption and bribery, and treatment for HIV was bad. He stated that if he went into the streets the police would tell other people that the couple were sick because they want to control the disease. He claimed that there were no human rights and there was no confidentiality in Vietnam. He added that if he returned, other parents would not allow their children to play with his children as they would consider them to be sick as well.
111. The Tribunal pointed out to the first named applicant that his answer appeared to no longer be responsive to the question asked and also appeared to be contrived and rehearsed. The Tribunal asked the first named applicant to try to provide responsive answers and to focus on a response to the country information that indicated that ART treatment was widely available in Vietnam. In response, the first named applicant stated that this was not really evidence because it had been provided by the government.
112. The Tribunal asked the applicant if there was any reason why he would not access ART treatment in Vietnam if such treatment was available. He responded that in Australia treatment was confidential, but he did not know how it would be in Vietnam. The Tribunal asked the applicant if he was submitting that he could not be confident that his HIV status would remain confidential if he sought treatment for HIV in Vietnam. He responded that he did not think that confidentiality was maintained well in Vietnam.
113. The Tribunal pointed out to the applicant that country information indicated that the Vietnamese government had enacted laws to protect the privacy rights of people with HIV and limit the disclosure of their HIV status only to people who needed to know about that status, such as medical professionals. These legal protections extended to the people to whom the information was disclosed, and these people had a legal obligation to keep the information confidential. The first named applicant responded that the laws in Vietnam are not the same as laws in Australia and they do not protect people because it is not possible to bring any breach of the laws to court. He added that if people disclosed his HIV status there would be nobody who could sue them or seek justice in those circumstances.
114. The Tribunal agreed with the first named applicant that there was country information available to show that the confidentiality of HIV status of people had been breached in the past in Vietnam and on that basis, there would be some risk that his HIV status would also be disclosed. Given this risk, the Tribunal asked the applicant what he believed would happen to him if his confidentiality was breached in Vietnam and people found out about his HIV status. He responded that as the Tribunal had said if his confidentiality was breached then everybody would know and then nobody would dare come near him. He claimed that if he was working for others, they would rethink the employment because there was a lot of cheap labour and they can find somebody else to replace him.
115. The Tribunal asked the first named applicant why he could not reopen his [shop] if he returned to Vietnam. He claimed that even if he did open his shop people would not come in because they would be frightened of his HIV status and they would go to other shops because they were afraid of contracting HIV.
116. The Tribunal asked the applicant if his brother could support him in Vietnam. He responded that his brother earned normal wages which barely leaves enough money for himself. He added that sick people like the first named applicant and his wife needed to raise children and also needed a lot of money to pay for treatment.
117. The Tribunal pointed out to the first named applicant that country information suggested that ART treatment in Vietnam was available through the SHI and the premium to obtain coverage under SHI was around AU$30 a year. The premium would include access to HIV treatment and to ART drugs. The Tribunal also stated that there was some country information available to suggest that in 2020, which was the first full year where ART treatment had been funded through the SHI, there were no reports of patients incurring out-of-pocket expenses for access to ART.
118. The first named applicant responded that even in Australia if you buy insurance and say you have HIV, people would not give you insurance. He claimed that in the past in Vietnam it was claimed that through international donors people could access ART treatment at the cost of around $60 for three months (which would be about $120 for the couple every three months), but this was only for clinical trials and the market price was even more expensive. He added that in Vietnam there were other things that could happen.
119. The Tribunal asked the first named applicant if he would be able to obtain employment in Vietnam. He responded that there was a lot of labour available in Vietnam and people would always choose a healthy person rather than a sick person. On that basis he feared that he would not be able to obtain and maintain employment. He added that he had nothing else to tell the Tribunal.
120. At this point in the hearing the Tribunal and the applicant’s representative had a lengthy discussion about the possible findings that can be made in relation to the applicants’ claims for protection. The representative indicated that she agreed with the Tribunal focusing on the issue around the possible employment status of the applicants on their return to Vietnam and any associated denial of the ability to subsist.
121. In her evidence to the Tribunal, the second named applicant confirmed that she had been born in Ca Mau. Her father had died around six years ago whilst her mother was still alive and living in Ca Mau. She had one older brother, one older sister and one younger brother. All of her siblings were currently living in Ca Mau. The two older ones were married and lived in their own properties. Her younger brother lived with the mother.
122. The second named applicant stated that she had completed year [level] in Vietnam and had then studied to be a [Occupation 1] in Can Tho. She had then continued to work as a [Occupation 1] in Can Tho and lived with her aunt in that city until she met and married the first named applicant. She confirmed that the couple came to Australia together in 2008 on a student visa but added that only her husband had studied in Australia. She had worked as a part-time [Occupation 2] but was no longer able to work since the Department had denied the couple work rights in Australia.
164. The correlation between these social evils and HIV has resulted in high levels of stigma and marginalization of PLHIV.[64] This stigma extends to the children and other family members of PLHIV.
[64] 'Treatment 2.0 Pilot in Vietnam—Early Progress and Challenges', Duc Duong Bui, Fabio Mesquita, Thi Nhan Do, Masaya Kato, Thi Thuy Van Nguyen, Thi Minh Thu Nguyen, Adrienne Poon, World Journal of AIDS, 16 May 2012, p. 66, 20220722140410;
165. According to a document published by the Global Fund, the Vietnamese Government stated, ‘PLHIV and key populations in Viet Nam face considerable stigma and discrimination despite the existence of strong national legislation that forbids such practices.’[65] Vietnam’s 2006 Law on HIV/AIDS Prevention and Control No.64/2006/QH11 provides protections for PLHIV:
[65] 'TB and HIV concept note: investing for impact against tuberculosis and HIV', The Global Fund, 10 March 2014, p. 8, 20220728092131
For the protection of the rights of PLHIV in this respect, including their right to have their privacy respected (Article 4), and more specifically prohibits making public the name, address and image of PLHIV or disclosing information on a person’s HIV status to another without their consent (Article 8). Article 30 of the Law on HIV provides for exceptions to Article 8, specifying that HIV test results can be disclosed to the tested person; their spouse; their parents or guardian if they are minors or have lost their civil capacity; staff members who provide counselling and inform people of their results; people responsible for providing care and treatment for PLHIV at medical establishments and in educational establishments, reformatories, social relief establishments, prisons or detention camps; and certain people involved in compulsory testing. These people are required to keep this knowledge confidential.[66]
[66] 'The People Living with HIV Stigma Index in Viet Nam', Vietnam Network of People Living with HIV, 30 November 2012, p. 34, 20220805163247
166. According to the Vietnam Ministry of Health, ‘if people’s HIV status or risk behaviours are known, they may not only be ostracized by their friends and families, but also denied educational and employment opportunities.’[67] In a 2007 radio interview with Sister Tue Linh of the Mai Hoa AIDS Center and Dr. Eric Krakauer of Harvard Medical School, Krakauer stated ‘If you're a member of a family in which there's someone with AIDS, your kids might have trouble going to school… You might have had difficulty selling your vegetables in the market. People sometimes stayed away out of fear, not only from people who had HIV infection but also from their family members.’[68] In a further article about the Mai Hoa AIDS Center in 2009, an incident involved 15 AIDS Orphans from the centre being refused attendance to a local government primary school. They had initially been given approval to attend by the Principal, however after ‘uprising by the parents of the other students, who refused to let their children enter the school together with the infected orphans,’ the children were refused. According to Eamonn Murphy, Vietnam director for UNAIDS at the time, ‘You go to any rural environment in Asia, and you are going to have similar reactions… The general lack of understanding leads to this inappropriate reaction and fear.’ [69]
[67] Optimizing Viet Nam’s HIV Response: An Investment Case', Ministry of Health (Vietnam), October 2014, p. 9, 20200630092634
[68] ' Vietnam expands protection for people with HIV', National Public Radio, 06 February 2007, CX170552
[69] 'Exiled From School, H.I.V.-Infected Orphans Learn a Bitter Lesson', Seth Mydans, The New York Times, 13 October 2009, 20220805144738
167. In 2012, Vietnam Network of People Living with HIV (VNP+) conducted a large survey on the subject of Stigma against PLHIV in Vietnam, known as the Stigma Index Survey.
168. ‘The Stigma Index survey was conducted in five provinces – Can Tho, Dien Bien, Ha Noi, Hai Phong and Ho Chi Minh City (HCMC)... These provinces also contain an estimated 48% of Viet Nam’s total population of PLHIV.... In total, data were collected from 1,642 PLHIV.'[70]
[70] 'The People Living with HIV Stigma Index in Viet Nam', Vietnam Network of People Living with HIV, 12 November 2012, p. 34, 20220805163247
169. The study indicates significant levels of stigmas and discrimination towards PLHIV and to some extent their children. The results found that a large percentage of PLHIV had their serostatus disclosed to friends or neighbours without their consent, including 45.5 per cent of PWID in Dien Bien, 34 per cent of FSW in Hanoi and 18 per cent of MSM in Ho Chi Minh City who reported such disclosure.[71]
[71] 'The People Living with HIV Stigma Index in Viet Nam', Vietnam Network of People Living with HIV, 30 November 2012, p. 36, 20220805163247
170. Two-thirds of all respondents reported that they had one child or more, while approximately 12% had children known to be HIV-positive.[72] Of all the families interviewed that had their status known to the public, 4.3 per cent said their children were dismissed or suspended from an educational institution or prevented from attending.[73]
[72] 'The People Living with HIV Stigma Index in Viet Nam', Vietnam Network of People Living with HIV, pp. 17-18, November 2012, p. 34, 20220805163247
[73] 'The People Living with HIV Stigma Index in Viet Nam', Vietnam Network of People Living with HIV, 12 November 2012, p. 86, 20220805163247
171. The study published eight case studies including two from Can Tho. The data results along with the case studies show consistent themes including serious stigma and discrimination by family members, gossip and sharing people's status without consent, being terminated from employment, difficulty securing housing, and discrimination against their children. One woman from Can Tho outlined that she and her husband were forced to leave their parents’ house, and their belongings were thrown out of the house by their sister. The sister also told the village Women's Union and neighbours about their status.[74] Another man, whose brothers died of AIDS, was told by his father:
[74] 'The People Living with HIV Stigma Index in Viet Nam', Vietnam Network of People Living with HIV, 12 November 2012, p. 64, 20220805163247
'If you catch any diseases, you should kill yourself on the street. Don’t come home.... the village spread rumours and gossip about the fact that someone in my family had died of AIDS. They speculated about the HIV status of the whole family. This meant that very few clients came to have tea at my family’s shop. So my mother asked me: “Could you please go back to the house so that I can do business? If you stand outside, people will be frightened that you have HIV.'[75]
[75] 'The People Living with HIV Stigma Index in Viet Nam', Vietnam Network of People Living with HIV, 12 November 2012, p. 65, 20220805163247
172. A woman from Hai Phong explained:
When her husband died, X’s parents-in-law did not take care of their grandchildren, and when she and her daughters fell ill, they looked after themselves without any help from her husband’s family. Neither she nor her children received any of her husband’s inheritance from her parents-in-law. X’s second child is not HIV-positive, but the grandmother could not believe that the child had not caught the virus because she carries her mother’s blood. When this daughter started at kindergarten, the school asked X to show them her most updated test result. However, they refused the blood test result that confirmed her negative status when she was 18 months old and took her to the clinic for another blood test.[76]
[76] 'The People Living with HIV Stigma Index in Viet Nam', Vietnam Network of People Living with HIV, 12 November 2012, p. 68, 20220805163247
173. A similar study was conducted, also in 2012, by academics from universities in Vietnam and the United States of America. The results about stigma and discrimination were similar:
Types of a stigma that the participants have ever experienced from community, family, or healthcare system or due to HIV status disclosure are presented in Table 1. A majority of participants (82.3%) had told their family members about their HIV status. One-third of the participants (34.5%) reported losing jobs or profits/income due to their HIV status. 34.4% of the participants experienced feared to get HIV infected from them by others. 14.6% of the participants reported being blamed or criticized because they had HIV. 3.6% of the participants perceived receiving poor health care services. 3.1% of the participants reported having been discriminated against by health workers. A majority of participants reported experiencing at least one type of stigma due to HIV disclosure (86.2%); 62.8%from the community, 30.2% from family, and 8% from health care system.[77]
[77] 'Changing Sources of Stigma against Patients with HIV/AIDS in the Rapid Expansion of Antiretroviral Treatment Services in Vietnam', Bach Xuan Tran, Phung Quoc Tat Than, Tung Thanh Tran, Cuong Tat Nguyen, and Carl A. Latkin, BioMed Research International, 21 January 2019, p. 3, 20220810110318
174. Research into HIV-related stigma in the healthcare system, and proposed stigma-reduction interventions in Vietnam are also reported.[78]
[78] 'A pretest-posttest design to assess the effectiveness of an intervention to reduce HIV-related stigma and discrimination in healthcare settings in Vietnam', Todd M. Pollack, Hao Thi Duong, Dang Thi Nhat Vinh, Do Thi Phuong, Do Huu Thuy, Vo Thi Tuyet Nhung, Nguyen Kieu Uyen, Vuong The Linh, Nguyen Van Truong, Kim Anh Le Ai, Nguyen Thi Ninh, Asia Nguyen, Hoang Dinh Canh and Lisa A. Cosimi, Journal of the International AIDS Society, 03 May 2022, 20220810150928; 'Improving Hospital-Based Quality of Care by Reducing HIV-Related Stigma: Evaluation Results from Vietnam', Julie Pulerwitz, Khuat Thi Hai Oanh, Dayo Akinwolemiwa, Kim Ashburn, Laura Nyblade, AIDS and Behaviour, 11 November 2014, 20220810153113FINDINGS AND REASONS
175. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
176. There is no issue as to identity or nationality. The applicants arrived in Australia on valid Vietnamese passports bearing valid Australian student visas. The Tribunal therefore accepts that the applicants are nationals of Vietnam and has assessed their claims accordingly.
177. The applicants are a married couple who are HIV positive and claim that they fear harm if they returned to Vietnam now or in the reasonably foreseeable future because of their membership of a particular social group described as people living with HIV in Vietnam. They have expressed fears of harm in relation to their ability to access the drugs they need to continue their HIV treatment, or access these drugs at an affordable price, which would threaten their lives as they cannot survive without this drug treatment. They have also expressed their fear of harm in Vietnam if their HIV status is disclosed to the local community in Vietnam. They fear that if their HIV status becomes publicly known that due to entrenched societal attitudes in Vietnam about people living with HIV, the couple would be shunned and ostracised by family members and other people who become aware of their HIV status. They also fear that these societal attitudes would lead to them being denied employment opportunities that would threaten their ability to subsist. An additional claim has been made on behalf of the second named applicant that as a member of an additional particular social group, women living with HIV in Vietnam, this feared harm would be exacerbated in her case.
178. On the basis of the medical evidence provided to the Tribunal by [Dr A] from [Hospital 1], the Tribunal accepts that the applicants are both HIV positive. The Tribunal also accepts that the applicants require treatment on a daily basis for their HIV with antiretroviral (ART) drugs, and that denial or disruption to their treatment regime would have deleterious consequences on their health including the possibility of life-threatening consequences.
179. When a person claims to fear being persecuted for reasons of their membership of a particular social group, as the applicants both claim to do, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
180. The Tribunal considers that the country information referred to above clearly highlights that many people in Vietnam hold entrenched negative attitudes towards people living with HIV in Vietnam and that these negative attitudes result in high levels of stigma and marginalisation of people living with HIV.
181. This country information reinforces that people living with HIV in Vietnam are viewed as a distinct social group within the local society due to a common characteristic being their HIV status. This characteristic is immutable given that it is a diagnosed disease for which there is no known cure.
182. Accordingly, on the evidence before it, the Tribunal accepts that there is a particular social group in Vietnamese society being people living with HIV in Vietnam. Therefore, given their HIV status and the risk that their HIV status would become generally known within society (which is discussed in detail below), the Tribunal also accepts that if the applicants were to return to Vietnam, they would be members of this particular social group being people living with HIV in Vietnam.
183. On the evidence before it, the Tribunal also accepts that women who fall into this particular social group would also be viewed as a separate and distinct particular social group within Vietnamese society, being women living with HIV in Vietnam. Accordingly, Tribunal accepts that if the second named applicant were to return to Vietnam, she would be a member of a particular social group being women living with HIV in Vietnam.
184. The applicants have claimed that if they returned to Vietnam now or in the reasonably foreseeable future, they fear that they would not be able to access the ART drugs that they depend on or alternatively that if they could access these drugs, the cost of the drugs would be prohibitively expensive.
185. However, as discussed with the applicants at the hearing, the country information referred to above indicates that ART treatment is widely available in Vietnam, that the Vietnamese Government’s national guidelines issued in December 2021 are in line with World Health Organisation (WHO) guidelines, the preferred ART treatment regimen is the drug TLD which is consistent with WHO recommendations and there are accessible HIV testing and treatment centres across the regions of Can Tho and Ca Mau, where the applicants are respectively from and would most like settle if they were return to Vietnam.
186. This country information also shows that the ART treatment is available through Vietnam’s Social Health Insurance (SHI) system, that the annual premium for access to the SHI is around A$30 a year, and there are no reports of people accessing ART treatment through SHI incurring unaffordable out-of-pocket expenses for access to such treatment.
187. The Tribunal accepts that the applicants have a strong subjective fear about accessing affordable ART treatment in Vietnam, particularly given how critical this treatment is to their ongoing health and to their survival. However, the Tribunal finds that based on the country information referred to above, there is no objective basis for this fear.
188. The Tribunal has considered the claim by [Dr A] that appropriate ART treatment may not be available to the applicants in Vietnam. However, this claim is directly refuted by the country information referred to above and the Tribunal has given more weight to this country information than the claim by [Dr A].
189. Accordingly, based on the evidence before it, the Tribunal finds that if the applicants were to return to Vietnam now or in the foreseeable future, they would have access to appropriate ART treatment and that this treatment would be affordable. Therefore, the Tribunal finds that the applicants’ fears about a lack of access to ART treatment or a lack of access to affordable ART treatment are unfounded.
190. The Tribunal has also considered the applicants’ own claims and the country information referred to above in relation to the applicants’ fears that their private medical records would be disclosed without their permission and that this would lead to local community members, including their own family members, ostracising the couple because of the social stigma associated with the particular social group of people living with HIV in Vietnam.
191. At the Tribunal hearing, the applicants expressed strong fears that their privacy in relation to their medical records and their HIV status would be breached in Vietnam, leading to severe consequences for the couple. This was despite laws in existence that protected the privacy of their medical records and that extended confidentiality provisions surrounding these medical records to those medical professionals and other people who were legally permitted to access these records.
192. The Tribunal notes that, on balance, the country information referred to above confirms the fears of the applicants that their medical privacy may not be respected and that their HIV status may be revealed to their local community, including to family members. It is clear from this country information that despite existing laws protecting privacy and imposing confidentiality requirements, the fear and social stigma associated with HIV extends to people who work in the medical profession and to those who work in ancillary roles such as health centres and treatment centres. As a result, the country information highlights that over time the medical privacy of many people has been breached and their HIV status has been revealed without their knowledge.
193. Based on this information, the Tribunal has considered the likely consequences for the applicants in their particular circumstances. They will be returning to Vietnam after a long time away from that country and their return may cause initial general gossip and suspicion that would draw attention to the applicants within their local community. If they were to access HIV treatment at local clinics, based on the country information available to the Tribunal, there is a risk that their HIV status would be disclosed without their consent as, based on this country information, has occurred in the past in Vietnam. Also based on this information, the Tribunal considers that this risk or chance of disclosure, although not probable, is still significant and is therefore not remote. Therefore, the Tribunal accepts that if the applicants returned to Vietnam now or in the reasonably foreseeable future that there is a real chance that the applicants’ HIV status would be revealed without their consent and would become known in their local community.
194. If their HIV status does become known to their local community, which the Tribunal has found there is a real chance of occurring, the country information referred to above is clear that the applicants would face a strong level of societal stigma and marginalisation in Vietnam because of their membership of a particular social group being people living with HIV in Vietnam. Based on this country information and on the applicants’ own claims, it is possible that this stigma and marginalisation may extend to members of their own family who may choose to shun or ostracise the applicants, which would further exacerbate their marginalisation. The Tribunal considers it instructive that the applicants have refused to tell some members of their family in Australia about their HIV status for fear that these family members, although living in Australia, still carry similar ingrained attitudes that would lead to the applicants being shunned and marginalised.
195. It is clear from the available country information referred to above that this societal stigma and marginalisation of people living with HIV in Vietnam extends to discrimination in employment, despite the existence of laws in Vietnam to prohibit such discrimination. In particular, the most recent United States Department of State 2021 Country Reports on Human Rights Practices: Vietnam clearly highlights that the Vietnamese Government does not effectively enforce these laws.
196. The Tribunal has therefore considered whether this discrimination in employment would lead to the applicants being denied the capacity to earn a livelihood of any kind where that denial would threaten their capacity to subsist, pursuant to s 5J(5)(f) of the Act, which would constitute serious harm for the purposes of s 5J(4) of the Act.
197. The applicants clearly stated at the Tribunal hearing that even more sympathetic employers would employ people without HIV ahead of people who are HIV positive in order to appease their other employees and those customers who fear HIV positive people may infect them. They are assisted in this regard by a plentiful supply of labour across Vietnam. Other less-sympathetic employers would fall into the category that is personally fearful of employing an HIV positive person. Although the most recent DFAT report on Vietnam does not specifically cover this area, these subjective fears of the applicants are reinforced by the most recent report from the US Department of State referred to above. That report makes it clear that discrimination continues in Vietnam against people with HIV in both gaining and maintaining employment, despite the government’s efforts to pass laws outlawing the practice.
198. The Tribunal has also considered the applicants’ unique personal circumstances. They are both HIV positive and it is equally likely that the status of both applicants would become known to the local community. As the applicants discussed at the Tribunal hearing, in the case of one member of a couple being HIV positive, the other member of the family may be able to obtain and hold down employment to provide for the family. But in the case of the applicants, they would both be equally susceptible to being denied employment of any kind so that they are unable to provide for their family and therefore unable to subsist. This would be compounded further by the possibility that family members, who may or may not have the means to support the applicants and their family, may choose to shun the applicants because of their HIV status. In addition, in the applicants’ case, the denial of employment and therefore their ability to earn a livelihood of any kind may also threaten their health and risk their life as without adequate income they may be unable to pay the SHI premium that would entitle them to access the ART treatment they require.
199. Given the applicants’ personal circumstances, and given the country information referred to above, the Tribunal finds that the chance that the applicants may be denied employment that would lead to the applicants being denied the capacity to earn a livelihood of any kind and therefore threaten their capacity to subsist is not remote. Accordingly, the Tribunal finds that if the applicants returned to Vietnam now or in the reasonably foreseeable future there is a real chance that they will suffer serious harm for membership of a particular social group, being people living with HIV in Vietnam, because they would be denied employment that would lead to the applicants being denied the capacity to earn a livelihood of any kind where that denial would threaten their capacity to subsist.
200. As the Tribunal has found that the applicants face a real chance of serious harm from non-state actors in Vietnam, the Tribunal has considered whether the applicants can seek effective protection from the harm they fear from the authorities in Vietnam.
201. As discussed above, the Vietnamese government has enacted laws to protect the privacy of medical records for people living with HIV and has enacted laws to outlaw discrimination in employment for people living with HIV. However, despite the existence of these laws, the country information referred to above makes it clear that ingrained social attitudes are so entrenched that in practice these laws are neither observed or enforced and the societal discrimination against people living with HIV continues. The country information also highlights that the Vietnamese Government does not effectively enforce the discrimination laws in relation to employment. Moreover, as pointed out by the applicants at the hearing, the discrimination in employment does not need to be overt. Once a person’s HIV status becomes known, the employer simply does not need to employ them or can move them on in preference to other workers. Accordingly, the Tribunal finds that despite the goodwill demonstrated by the enacting these laws, the authorities in Vietnam would not be in a position to offer the applicants effective state protection from the serious harm that they fear.
202. The Tribunal has also considered whether the applicants would be able to relocate to another part of Vietnam to avoid the serious harm that they fear. However, the country information referred to above highlights that the ingrained societal attitudes about people living with HIV in Vietnam extend across the whole country and the authorities’ inability to offer effective state protection from the serious harm the applicants fear also extends across the whole country. Accordingly, the Tribunal finds that relocation to any other part of Vietnam is not an option in the applicants’ circumstances.
203. Having considered the applicants’ claims individually and cumulatively, the Tribunal is satisfied that each of the applicants has a well-founded fear of persecution for reasons of their membership of a particular social group, being people living with HIV in Vietnam.
204. For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a).
decision
205. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Peter Katsambanis
MemberAttachment - 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.
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36 Protection visas – criteria provided for by this Act
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(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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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Standing
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Remedies
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