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RRT Case No. N94/04178

RRT Reference: N94/04178
10 June 1994

Place: Sydney

Decision The Tribunal sets aside the decisions of the delegate and substitutes for them decisions that:

(i)the Applicant is a refugee under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967; and

(ii)the application for a Protection (Permanent) Entry Permit) be remitted to the delegate for reconsideration.

The published version of this decision does not contain any statement which may identify the Applicant or any relative or other dependant of the Applicant: section 166EA of the Migration Act 1958 (Cth). All references to the Applicant's country of nationality and other identifying details have been deleted.

DECISION UNDER REVIEW

This is an application to the Tribunal for review of decisions made by a delegate of the Minister for Immigration and Ethnic Affairs (the delegate) to refuse the Applicant's applications for refugee status and for a protection (permanent) entry permit.

BACKGROUND

The Applicant arrived in Australia in March 1991. On 15 August 1991, he lodged with the Department of Immigration, Local Government and Ethnic Affairs (the Department) an application for refugee status. It was refused on 2 April 1992 and on 7 May 1992 the Applicant sought internal review of that decision. The application for review was refused on 24 December 1992.

On 19 April 1994, the Applicant lodged a further application for refugee status. It had effect as an application also for a class 817 protection (permanent) entry permit (PPEP). It is a prescribed criterion for the grant of a PPEP that an applicant has been determined to be a refugee: clause 817.733 of the Migration (1993) Regulations (as mended) (the Regulations). The applications were refused by the delegate on 30 May 1994 and on 1 June 1994, the Applicant sought review of the delegate's decisions by the Tribunal.

The Applicant was represented by the Refugee Advice and Casework Service.

I am satisfied that the Applicant has standing to make this application and that the Tribunal has jurisdiction to review the delegate's decisions.

LEGISLATIVE FRAMEWORK

Section 22AA of the Act provides that "If the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee."

"Refugee" is defined by the Act to have "the same meaning as it has in Article 1 of the Refugees Convention or in that Article as amended by the Refugees Protocol": s.4(1) of the Act. The same subsection of the Act defines "Refugees Convention" and "Refugees Protocol" as, respectively, "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 " (the Convention) and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967" (the Protocol).

Insofar as it is relevant to this application, Article 1 of the Convention provides that a refugee is any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

CLAIMS AND EVIDENCE

The Applicant was born in [country of nationality]. His parents were killed in [year]. His sister and one brother went missing in [year] and are presumed dead. He has a married brother in [country of nationality].

The Applicant's first application for refugee status was based on claims relating to conditions in [country of nationality] prior to his departure and which he claimed were the reasons for his departure. In his second application, the Applicant claims that he will suffer discrimination in [country of nationality) of such a severe nature as to amount to persecution on account of his membership of a particular social group, namely, people diagnosed as infected with Human lmmunodeficiency Virus (HIV).

With his latest application, the Applicant re-submitted the statutory declaration which was the basis for his first application but makes no submissions in relation to those claims. Those claims having been dealt with in the first primary decision and on review, the delegate did not consider they warranted further assessment. In that respect, I agree with the delegate. Further, because I find that the Applicant's application succeeds on the basis of his claims relating to his HIV status, no purpose is served, in my view, in dealing with those claims all over again.

In support of his application, the Applicant submitted medical reports from (names of hospitals deleted). These state that:

[The Applicant] has been diagnosed as having human immunodeficiency virus (HIV) infection Group III with moderately severe immunosuppression as shown by his tests of immune function.

As a consequence of this diagnosis and level of immunosuppression he is at significant risk of progression to a life threatening condition in the near future. It is possible to stabilise his condition for a short term based on the current antiviral medications available in Australia. However, he has already had a significant physical intolerance of some of these medications and as a result his medial management has become more complex. Considerable expertise in HIV care is required to maintain his current low level of health, as well as to prevent the onset of a number of serious medical conditions in the future. In addition he has required ongoing nutritional support and advice to prevent major weight loss. I have no doubt that without these interventions his condition would deteriorate significantly in the short term.

and

There is good evidence to suggest that [the conditions under which the Applicant is presently living] can damage his immune system and cause him to progress more quickly to an AIDS-defining illness.

HIV is classified into four groups according to the stage of the disease and the clinical symptoms present. Group IV, its most serious manifestation, is Acquired Immune Deficiency Syndrome (AIDS) and related conditions. Present evidence suggests that 35 per cent of people with HIV will develop AIDS within the next five to seven years. The prognosis for people with AIDS is usually poor. Forty-nine per cent of those diagnosed with AIDS since July 1986 have died: Australian National Council on AIDS - Bulletin No. 1, AIDS. facts about Acquired Immune Deficiency Syndrome, June 1990. The Applicant submits that he will need ongoing palliative care and medical treatment throughout his illness: [medical report], 15 February 1994; AIDS Bulletin No. 1 (above).

In its later stages, HIV is characterised by damage to the immune system and susceptibility to opportunistic infections or illnesses. General living conditions in [Applicant's country of nationality] are such that the population in general is exposed to a large number of infectious diseases. The risk of fatality is much higher for an HIV-infected person who already has some degree of immune suppression: Dr. Peter Hakewill, Director for Australia, Medecins Sans Frontieres, 31 May 1994. Australian Federation of AIDS Organisations; HIV Briefs: HIV Illness and Opportunistic Infections, November 1992.

In support of his application, the Applicant submitted a number of documents from government and non-government agencies and individuals testifying to the discriminatory treatment he would face if returned to [country of nationality]. In particular, they provide evidence that the Applicant would face discrimination in obtaining access to medical treatment and palliative care on account of his medical status. These included the following:

[In] ... March this year ... I discussed with the Hospital Director [hospital name deleted] how his staff will react were they to become aware that one of their patients is HIV positive. He expressed grave doubts that their reaction would be positive ... He doubted whether they would now give such a patient any treatment, even if it were available.

(Source deleted)

This is supported by evidence from [non-government agency] that while HIV sufferers may, in theory, be accepted into the [hospital name deleted], there are no cases there at present despite the prevalence of the disease: [non-government agency], 3 June 1994.

The Applicant submits that he would suffer severe discrimination in [his country of nationality] in the form of ostracism from his family and community because he is HIV positive. In support of his claim, he submitted evidence from a number of sources which state that community attitudes in [country of nationality] are very hostile and there is a real fear of anyone who is HIV positive: it is likely that people known to be HIV positive, or suffering from AIDS-related illnesses may be ostracised by their families: (sources deleted).

There is an acute social stigma associated with HIV in this country. Our research indicates that an incidence of HIV in a family is kept secret and that [a] sufferer is deprived social contact. In addition, the public opinion is to have HIV sufferers totally isolated from public contact, and any known sufferer is subjected to severe discrimination in this country.

(source deleted, 3 June 1994)

In a recent report on HIV and AIDS in [Applicant's country of nationality], [non-government agency] examined community attitudes towards people with AIDS. While attitudes were both sympathetic and negative, "exile was the most popular suggestion (43%) given by respondents. ... No respondent, man or woman, said that those with AIDS deserved to be cared for within the family": (source deleted)

The Applicant was diagnosed as infected with HIV [since his arrival in Australia]. (identifying details deleted). In these circumstances, he says, it would be extremely difficult for him to conceal his medical condition. Further, he needs treatment at an identified HIV/AIDS health care facility which itself would make him identifiable: [medical report], 8 June 1994. In these circumstances, he claims it would be impossible to avoid severe discrimination.

The Tribunal has before it evidence that, while work [in country of nationality] has recently begun in AIDS education, prevention and awareness, there is widespread ignorance even among health professionals about HIV and AIDS, and Government commitment is minimal to education and AIDS prevention: its attitude has largely been one of indifference and ignorance. This has not been a deliberate policy but, rather, reflects attention to more pressing needs and demands on extremely limited resources: (sources deleted). No anti-discrimination laws exist to protect people who are HIV positive and it is unlikely that any policy will be adopted in the near future: (source deleted).

REASONS FOR DECISION

The question for determination by the Tribunal is whether the Applicant has a well-founded fear of persecution within the meaning of the Convention. In order to invoke its protection, the Applicant must satisfy each of the elements of the Convention. I will deal with them in turn.

The treatment from which a person seeks refuge must amount to persecution. The term is not defined by the Convention. It was considered by the High Court in Chan Yee Kin v. The Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379. Not every form of harm will constitute persecution for Convention purposes. There must be "some serious punishment or penalty or some significant detriment or disadvantage" if the applicant returns to his or her country (per Mason CJ. at 388). It need not necessarily be harm as serious as loss of life or liberty: in certain cases measures "'in disregard' of human dignity" (per McHugh J. at 430) will amount to persecution."

Persecution has historically taken many forms of social, political and economic discrimination. Hence, denial of access to certain fundamental rights such as education, or restrictions on freedoms traditionally guaranteed in a democratic society may constitute persecution (per Mason CJ. at 388; McHugh at 430-431). "As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed ... against that person as an individual or as a member of a class, he or she is 'being persecuted' for the purposes of the Convention" (per McHugh J. at 430).

In certain forms, discrimination may not be so substantially prejudicial as to amount to persecution: UNHCR Handbook on Procedures and Criteria for Determining Refugee Status Geneva, January 1988, paragraph 54. According to Professor James Hathaway, the dominant view is that "refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard": Hathaway, The Law of Refugee Status, Butterworths Canada Limited, 1991, p. 108.

The right to life and security of person is a fundamental human right: see Universal Declaration of Human Rights, Article 3. It follows, in my view, that access to medical care and treatment is a fundamental human right and that active denial, or actions amounting to an effective denial, may constitute persecution. This is particularly so, in my view, in the Applicant's case in which he is suffering from a progressive, ongoing and life-threatening illness for which ongoing medical care is needed to maintain life itself.

In my view, ostracism from one's family and community may amount to persecution when it is in a severe form which deprives a person of social contact and human dignity. I accept the evidence submitted by the Applicant that [people in his country of nationality] infected with HIV are liable to ostracism. While it is not clear, from the evidence before the Tribunal, just what other forms the severe discrimination might take, I am satisfied that, along with denial of access to medical care and social ostracism, it would amount to "measures 'in disregard' of human dignity" and to a sustained and systematic denial of fundamental rights on account of the Applicant's medical condition.

I find that the treatment which the Applicant fears on return to [country of nationality] amounts to persecution.

The next issue for determination is whether the applicant's fear of persecution is well-founded". The meaning of "well-founded fear" was considered at length in Chan. What constitutes a "well-founded fear" will depend on the circumstances of each case. But it must not be a fear which is all in the mind: the words "well-founded" make it clear that an objective examination of the facts is needed to see whether the fear is justified (per Dawson J. at 396; per McHugh J. at 429).

The Court in Chan held that a fear of persecution is well-founded if there "is a real chance that the refugee will be persecuted if he returns to his country of nationality" (per Mason CJ. at 389; see also Dawson J. at 398; Toohey J. at 407; McHugh J. at 429). The expression "'a real chance' ... clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring ... " (per Mason CJ. at 389). "[I]t gives effect to the language of the Convention and its humanitarian intendment. It does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial" (Toohey J. at 407).

Whether an applicant has a fear of persecution and whether that fear is well-founded, must be determined according to existing circumstances whenever a determination is required. The circumstances in which an applicant has left his or her country of nationality remain relevant and are ordinarily the starting point in determining the applicant's present status: Chan, (per Mason CJ. at 386-387; Dawson J. at 399; Toohey J. at 405-406; McHugh at 414-415). However, the Convention looks to protection from a prospective chance of harm: to determine whether the Applicant's fear of persecution is well-founded requires, therefore, an examination of the evidence available about circumstances as they exist now in [country of nationality].

I find that the evidence before the Tribunal from a range of government and non-government sources in [country of nationality] and Australia establishes that the Applicant will need medical care for the rest of his life; that he is especially susceptible to opportunistic illnesses which themselves need medical treatment; and that lack of care will hasten the progression of his illness. The evidence of [sources] establishes, in my view, that the chance that the Applicant will be denied that care cannot be dismissed as remote or insubstantial. I find that there is a real chance that the Applicant will be denied access to palliative care and medical treatment in [country of nationality] because of his HIV status. I find, too, based on the evidence before the Tribunal, that there is a real chance that the applicant will suffer severe discrimination in [country of nationality] on account of his medical condition in a range of forms including ostracism from his family and community. I find, therefore, that the Applicant's fear of persecution is well-founded.

In order for the protection of the Convention to be invoked, it is not sufficient that a person has a well-founded fear of persecution. There must exist a nexus between the harm feared and the applicant's civil or political status. The Applicant claims that it is his membership of a particular social group, namely people diagnosed as HIV positive, which makes him differentially at risk of persecution.

The meaning of the phrase "membership of a particular social group" was considered by the Full Court of the Federal Court in Morato v. Minister for Immigration, Local Government and Ethnic Affairs, (1992) 39 FCR, 410. The Court held (per Black CJ. at 406, French J. agreeing) that, at the very least, "a particular social group connotes a cognisable group in society, and cognisable to the extent that there may be a well-founded fear of persecution by reason of membership of such a group".

Persecution must arise by reason of membership of the group (per Black CJ. at 405). In other words, people do not become members of a particular social group because they are persecuted: they are persecuted because they are members of that cognisable group. The Court acknowledged, however, the interactive processes, including the persecution itself, which may contribute to the development of the social group (per Black CJ. at 406).

In my view, people diagnosed as HIV positive form a cognisable group in terms of their particular medical status and medical needs. Moreover, they are treated as a cognisable group: the community responds to people with HIV on the basis of their HIV status, forming and acting upon stereotyped notions about what the illness signifies. Attitudes and reactions based on ignorance and fear are applied to individuals and to the group as a whole by reason of their perceived membership of the group. The apparent unwillingness of hospital staff in [city] to give medical treatment to people with HIV even if it were available is a clear example of this. I therefore find that people diagnosed as HIV positive are members of a particular social group for the purposes of the Convention.

There is evidence that the standard of health care for (people in the Applicant's country of nationality] in general is very poor: (source deleted). [Other nationals], no matter what their medical needs, have difficulty getting proper care. But the evidence before the Tribunal establishes, in my view, that people infected with HIV may be denied even the low level of care available to others on account of their membership of a particular social group.

An applicant is entitled to the protection of another state under international law only where there can be said to be a failure of state protection by his or her own state. Such a failure includes circumstances in which a state is unable or unwilling to extend protection or which make that protection ineffective: Hathaway (op. cit.) p. 105; UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January 1988, paragraph 65; Goodwin-Gill, G., The Refugee in International Law, Oxford University Press, Oxford, 1983, p.42.

Not all countries are able to provide the same standard or protection of all human rights. The fact, for example, that (country of nationality] may not provide its citizens with the standard of medical care available in Australia does not necessarily mean there has been a failure of state protection such that international protection is invoked. However, the evidence before the Tribunal indicates that HIV and AIDS are issues of which the (deleted) government and people are only now becoming aware and that there is widespread ignorance about the illness. The government appears to recognise the need to deal with the growing problem and evinces an intention to so do. However, lack of resources and minimal commitment mean that it may be a considerable time before intentions, including to increase education among the community, become actions. In the face of fear, ignorance and hostility towards people with HIV and AIDS, I find that the (deleted) government is unable, if not unwilling, to protect the Applicant from the persecution which, in my view, there is a real chance he will suffer.

In her decision, the delegate found that people having been diagnosed as being HIV positive constitute a particular social group for the purposes of the Convention. She found, however, that any finding as to the extent of any adverse reaction the Applicant might face in [his country of nationality] would be purely speculation on the Applicant's part and unsubstantiated conjecture on hers. I cannot agree with that conclusion.

The delegate gave weight to the fact that "the (deleted) Government is trying to come to terms with and provide solutions to the problem of AIDS" and cited some of the steps being taken to deal with the problem. However, the overwhelming conclusion after a reading of the materials which were before the delegate is that, despite tentative steps, the attitude of the (deleted) government has been one of largely indifference and ignorance; that government commitment is minimal and likely to remain so. In these circumstances it cannot be said, in my view, that the government is able to provide the Applicant with any meaningful form of protection against persecution. On this point as well, I cannot agree with the delegate's reading of the evidence and failure to take into account all the evidence before the Department.

For the reasons set out above I find that the Applicant has a well-founded fear of persecution in [his country of nationality] on account of his membership of a particular social group and that he is, therefore, a refugee within the meaning of the Convention.

DECISION

The Tribunal sets aside the decisions of the delegate and substitutes for them decisions that:

(i)the Applicant is a refugee under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January, 1967; and

(ii)the application for a Protection (Permanent) Entry Permit) be remitted to the delegate for reconsideration.