1902346 (Refugee)

[2024] AATA 4229

1902346 (Refugee) [2024] AATA 4229 (9 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1902346

COUNTRY OF REFERENCE:                   Ghana

MEMBER:Senior Member G.A.F. Connolly

DATE:09 October 2024

PLACE OF DECISION:  Sydney

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

Statement made on 09 October 2024 at 11:38pm

CATCHWORDS
REFUGEE – protection visa – Ghana – membership of particular social group – HIV positive – treatment and positive prognosis in Australia – few and poor treatment options, stigma and discrimination in home country, with likely progression to AIDS and death – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 36(2)(a)
Migration Regulations 1994 (Cth), Schedule 2

CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
1503082 (Refugee) AAT, 5 October 2016
1621844 (Refugee) [2020] AATA 2425

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 11 January 2019, the applicant’s claim for a protection visa was refused by a delegate of the Minister for Home Affairs (Minister’s Delegate).[1]

   [1] Applicant’s Protection Visa Decision Record [Reference] of 11 January 2019.

2. On Tuesday, 27 August 2924, this case was an appeal against that decision was heard by me.  What might have been a complex case was reduced to an all rather grim simplicity by the fact that the applicant is a [Age] year old Ghanian man who is HIV positive - and who, if he is removed from Australia to Ghana, would have a well founded fear of suffering imminent medical harm from neglect, leading to his early death in Ghana. 

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s.36 of the Migration Act 1958 (CTH) and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Mandatory considerations

2. 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. For the following reasons, the Tribunal has concluded that the decision of the Minister’s Delegate that is under review should be set aside.

2. On any consideration, the evidence in this case that the applicant is HIV positive from the professional medical authorities in NSW Health is overwhelming.[2]  [Dr A] (Head of the Department of Clinical Immunology and HIV Medicine at [named Hospital]) said this in respect of the applicant, particularly his very poor prognosis were he removed from Australia and from treatment of the kind from which he has benefited:

   [The applicant]'s prognosis is excellent with a predicted normal lifespan if he remains virologically controlled on antiretroviral therapy. This will require regular adherence to the prescribed antiretroviral therapy. Without regular antiretroviral therapy, I predict that he will progress to AIDS within 2 years and will likely die in approximately 5 years. Intermittent dosing due to interrupted supply will likely lead to the generation of multi-resistant HIV that will not subsequently be controlled with medications and will progress to an AIDS defining illness and death.

   For [the applicant] to continue full control of his HIV, it is essential that he have ready access to antiretroviral therapy in an environment free of stigma or discrimination. To ensure strict adherence to antiretroviral therapy it is also critical that [the applicant] has adequate social supports and is not separated from his family. The mental health impact of leaving his partner and child to return to Ghana would be profound. I have grave concerns for [the applicant]'s physical and mental health if he were forced to return to Ghana. Ghana has over 300,000 people living with HIV and has not been able to achieve the UNAIDS target of 90- 90-90 (90% know HIV status/ 90% HIV+ people started on antiretroviral therapy and 90% of those fully suppressed). The unmet need for antiretroviral therapy and stretched HIV services in Ghana has been well documented. There are still huge obstacles to overcome for people throughout the world to access antiretroviral therapy. Stigma and discrimination remain pervasive issues in Ghana for people living with HIV. Fear of disclosure and stigma affects antiretroviral therapy adherence and there are significant limitations to accessing care in Ghana where there is limited health infrastructure to be able to provide the needed comprehensive care.

   (Emphasis Added)

   [2] See the letter of [Dr A], Head of the Department of Clinical Immunology and HIV Medicine, [named Hospital], dated 30 August 2024.

3. I have noted what is said by [Dr A] above and I note, especially, her obvious expertise in making authoritative judgments in this medical field.  I note also the absence of any contrary arguments or evidence by the Department of Home Affairs.

4. Given that the expert medical evidence is that an HIV patient in the applicant’s position will die if he is returned to a jurisdiction in which treatment for HIV/AIDS is so poor, then there is only one conclusion that can be reached: that the applicant is a person to whom Australia owes protection obligations.

5. I am fortified in reaching this conclusion by previous decisions of this Tribunal[3] on cases analogous to the applicant’s in which an HIV sufferer was found to be a person whose protection claim was made out on s.36(2)(a) grounds.[4]

   [3] I adopt the reasoning of Member Tania Flood in 1503082 (05 October 2016).

   [4] 1621844 (Refugee) [2020] AATA 2425 (8 April 2020)

6. It follows that the applicant will be successful in his appeal to this Tribunal.

7. In this hearing, the applicant was represented by Ms Ashley Ognenovski, Solicitor, who assisted the Tribunal, ably, in this quite difficult matter.  I wish, as the presiding member in this difficult case, to register the Tribunal’s appreciation of Ms Ognenovski’s stewardship of her client’s case, for the effort she has gone to, both as an advocate for her client and as a practitioner doing their diligent best to help the Tribunal reach the correct and preferable decision.[5] 

   [5] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J.

DECISION

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

   Statement made on 09 October 2024 at 11:38pm

   Graham Alfred Frederick Connolly
   Senior Member
   Administrative Appeals Tribunal

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1)Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)   severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)   that is not inconsistent with Article 7 of the Covenant; or

   (d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)   that is not inconsistent with Article 7 of the Covenant; or

   (b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)   for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)   for the purpose of intimidating or coercing the person or a third person; or

   (d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)   for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   receiving country,  in relation to a non-citizen, means:

   (a)   a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

5H     Meaning of refugee

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

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

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

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

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

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

(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)   the real chance of persecution relates to all areas of a receiving country.

Note: For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note: For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)   conceal an innate or immutable characteristic of the person; or

(c)   without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)   the persecution must involve serious harm to the person; and

(c)   the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)   a threat to the person’s life or liberty;

(b)   significant physical harassment of the person;

(c)   significant physical ill‑treatment of the person;

(d)   significant economic hardship that threatens the person’s capacity to subsist;

(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K     Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)   disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L     Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)   a characteristic is shared by each member of the group; and

(b)   the person shares, or is perceived as sharing, the characteristic; and

(c)   any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)   the characteristic is not a fear of persecution.

5LA   Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)   protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)   the person can access the protection; and

(b)   the protection is durable; and

(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

1. Protection visas – criteria provided for by this Act

   …

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

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

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

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

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

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

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

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

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

   (2A)A non‑citizen will suffer significant harm if:

   (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)   the death penalty will be carried out on the non‑citizen; or

   (c)   the non‑citizen will be subjected to torture; or

   (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)   the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …