2208634 (Refugee)

The applicant, an Indian national, sought a protection visa, claiming a well-founded fear of persecution and significant harm if returned to India. The dispute centred on whether the applicant's circumstances, including his HIV and Hepatitis C diagnoses, his mental health struggles, and the societal stigma associated with these conditions in India, constituted grounds for protection under Australian migration law. The matter was before the Tribunal for review.

The core legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for one or more of the five prescribed reasons under section 5J(1)(a) of the *Migration Act 1958* (Cth), and if not, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to India, he faced a real risk of suffering significant harm under section 36(2)(aa) of the Act. This involved assessing the availability of medical treatment, the risk of discrimination and persecution due to his health status and mental health, and the potential impact on his current family.

The Tribunal considered the applicant's claims regarding his diagnoses, the breakdown of his first marriage due to his health status, the subsequent disclosure of his HIV status to his wider family and community, and his ongoing need for medical treatment and psychological support. It also took into account country information regarding access to healthcare and prevailing attitudes towards HIV and mental health in India. The Tribunal concluded that the decision under review should be remitted, directing that the applicant satisfies section 36(2)(a) of the *Migration Act*.