Federal Court of Australia

CFU17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1107

ORDERS

THE COURT ORDERS THAT:

1.    Leave to rely on ground 2(b) of the notice of appeal dated 6 January 2021 be granted.

2.    Leave to rely on ground 2(c) of the notice of appeal dated 6 January 2021 be refused.

3.    The appeal be dismissed.

4.    If the parties agree on appropriate costs orders, they are to file a proposed minute of order on or before 29 September 2023.

5.    In the absence of any agreement as to costs:

(a)    the first respondent file any submissions on costs, limited to 3 pages, on or before 13 October 2023; and

(b)    the appellant file any submissions in response, limited to 3 pages, on or before 27 October 2023.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER CJ:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court of Australia (as that Court was then known). The FCC dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal made on 20 April 2017 to affirm a decision of a delegate of the responsible Minister to refuse to grant the appellant a Protection (Class XA) visa (protection visa).

2    This proceeding was originally docketed to and heard by Farrell J. Her Honour was due to, and did, retire on 1 August 2023. The proceeding was reallocated to me on 30 June 2023. The parties were given an opportunity to make further submissions and to consider whether they wished to have a further hearing before me. The parties elected to make further submissions, but not to request any further hearing. I have considered all the materials before Farrell J including the transcript of the hearing, and the further submissions made in writing to the Court as now constituted.

3    For the reasons that follow, the appeal should be dismissed.

Background

4    The appellant is a citizen of Nepal who first entered Australia in July 2014 as the holder of a Visitor (subclass 600) visa. He described himself as having come to Australia to attend a seminar. On 4 August 2014, the appellant lodged an application for a protection visa. The application was accompanied by submissions prepared by his then migration agent, dated 30 July 2014. On 17 March 2015 and 27 May 2015, the appellant’s representatives made further submissions citing and appending country information. On 20 July 2015, the delegate refused to grant the appellant a protection visa.

5    On 19 August 2015, the appellant applied to the Tribunal for merits review of the delegate decision. In the Tribunal, the application did not progress for some time. On 27 January 2017, the appellant’s representatives provided the Tribunal with an outline of the appellant’s claims and further submissions a few days later, referring to some country information about Nepal. On 2 February 2017, the Tribunal conducted a hearing at which the appellant appeared with his representative. Post-hearing submissions were made shortly after, and they included updated medical and country information. On 20 April 2017, the Tribunal affirmed the delegate’s decision not to grant the visa on the basis that the appellant had not satisfied the criteria for protection in 36(2)(a) or in s 36(2)(aa) of the Migration Act 1958 (Cth).

6    On 24 May 2017, the appellant applied to the FCC for judicial review of the Tribunal decision, filing an amended application on 23 November 2017. On 10 December 2020, the FCC dismissed the application for judicial review: see CFU17 v Minister for Immigration & Border Protection [2020] FCCA 3364.

7    On 6 January 2021, the appellant filed a notice of appeal from the orders of the FCC.

Claims for protection

8    The appellant contracted Human Immunodeficiency Virus through injected drug use in 2003 or 2004. He claimed to fear persecution in Nepal due to:

(a)    his membership of two particular social groups, being “people living with HIV/ Acquired Immunodeficiency Syndrome (AIDS)” in Nepal; and “injecting drug users in Nepal”; and

(b)    his positive HIV status.

9    In the Outline of Claims submitted to the Tribunal, the appellant claimed that if returned to Nepal:

1.    [The appellant] will not be able to access the appropriate medical treatment which will result in the deterioration of his health and eventual death;

2.    [The appellant] will be forced to hide his HIV status in order to protect himself and his family from degrading treatment, as well as significant stigma and discrimination;

3.    In an attempt to protect the disclosure of his HIV status, [the appellant] will be forced to live without treatment which will result in the deterioration of his health and eventual death;

4.    Despite attempts to conceal his HIV condition, [the appellant]’s HIV status will be disclosed to his family, community and employers, limiting his ability to subsist due to rampant discrimination that will likely eventuate;

5.    [The appellant] will face physical violence and psychological harassment due to his history of being an injecting drug user;

6.    [The appellant]’s family, being his wife and children, will face severe stigma and discrimination to the point of causing severe psychological harm and significant harm as a result of [the appellant]’s HIV condition and drug use history;

7.    [The appellant] and his wife will be unable to obtain and/or retain gainful employment in order to subsist as a result of [the appellant]’s HIV condition and drug use history;

8.    [The appellant]’s extended family and the community will not support [the appellant] and his family as a result of [the appellant]’s HIV condition and drug use history;

9.    The Nepalese/Indian governments and authorities will be unable and/or unwilling to protect [the appellant] and/or his family from this harm, leaving [the appellant] and his family unable to subsist; and

10.    It is not reasonable for [the appellant] to relocate so as to avoid this harm[.]

10    The latter two points were a reference to whether the appellant could relocate to India to avoid harm, which was not put in issue by the Tribunal and plays no part in this appeal.

Tribunal decision

11    The Tribunal’s decision is careful and fulsome. After first summarising the procedural history and setting out the criteria for a protection visa, the Tribunal recorded its key findings in a section titled “Assessment of the applicant’s claimed circumstances”: see [9]-[67]. Although information is interwoven throughout that section, the Tribunal there set out:

(a)    the material before it;

(b)    the appellant’s background;

(c)    the appellant’s claims for protection; and

(d)    the Tribunal’s assessment of those claims.

12    Relevantly to the grounds of appeal, the Tribunal summarised the appellant’s claims in the following way (at [19]-[20]):

[The appellant’s] 2014 Declaration is to the following effect:

a.     he fears returning to Nepal due to his HIV positive status and his history of drug use;

b.     he fears for his health, safety and wellbeing in Nepal “to the extent that my capacity to subsist will be threatened if forced to return to Nepal”;

c.     he fears ostracism from his family and community; and that he will not be able to earn an income “which will impact upon my capacity to subsist”. He fears that if he cannot access treatment and becomes sick in Nepal “it is only a matter of time before my whole family find out about my condition. My father, who is a former policeman, will be very angry if he finds out that I am HIV positive and he will cut me off from the family both financially and socially”. He states that only his wife, doctor, counsellor and some close friends who he met through [the HIV charity] know of his HIV status. At another point he adds that he fears that “my brother and my father may even try to physically harm me or even kill me”;

d.     he also fears that his wife and children will face harm in connection with his HIV status and history of drug [use], which will cause him significant psychological harm. He fears that they will be assumed by the community to be HIV positive even though they are not;

e.     people living with HIV/AIDS (PLWHA) in Nepal are treated badly by their families and communities;

f.     HIV treatment is difficult to get in Nepal with limited free treatment available which is subject to long queues. Generally people need money to access treatment in Nepal;

g.     he fears that “without adequate access to treatment I will develop an AIDS defining illness leading to being hospitalised and eventually death”.

[The appellant’s] 2014 Declaration … also details the situation regarding access to HIV treatment in Nepal. Relevantly he states:

a.     he was not on any HIV treatment from 2003 until 2011 but would occasionally see a doctor to monitor his HIV condition. However, he attended an AIDS conference in Vienna in 2010 and “understood more clearly from my attendance at the conference the importance of being on treatment”;

b.     in 2011 “an aid agency in Pokhara made funds available for the purchase of HIV medication”;

c.     he “arranged for a friend to buy HIV medicine for me. My friend was also HIV positive however he came from a different town. I would arrange the treatment by telling the clinic that I was sending someone else to collect my medication”;

d.     his treatment in Nepal involved taking two tablets twice a day, which gave him headaches, loss of energy and made him feel unwell. In Australia his treatment involves a single tablet and no side effects;

e.     there are “strict criteria” for accessing free HIV treatment in Nepal and if you can pay for some or all of the treatment access is more readily available. [The appellant] was not put on HIV treatment when he was diagnosed with HIV due to the high costs of treatment, the limited availability of treatment and the additional travel costs and time. He could not ask his parents for money despite them providing “me with financial support on a daily basis”. Eventually he got money from an aid agency to access treatment;

f.     when he started treatment he had to travel two hours to see a doctor but for viral load testing he would have had to travel six hours to Kathmandu. He states “I did not check my viral load”;

g.     he worries that the aid funding he had access to in Nepal will not be available to him on his return which will adversely impact his ability to access HIV treatment on his return to Nepal. He also notes that there are other costs including travel and clinic attendance fees he would need to pay;

h.     he adds that “due to fears of stigma and discrimination he was always careful not to let anyone see me go to a clinic in case someone recognised me and discovered that I was HIV positive. I did not even access the treatment myself but instead had a friend attend the clinic for me”.

i.     he also fears breaches of confidentiality amongst medical service providers in Nepal which could lead to community knowledge of his HIV status;

j.     he notes that ignorance about HIV transmission is also present amongst medical service providers such that he may be denied treatment for non-HIV related matters.

(Footnotes omitted.)

13    After noting the appellant’s submissions in the 2014 Declaration that relocation to Kathmandu to access treatment would lead to ostracism from his family and community (at [21]), the Tribunal summarised the claims raised in the 2015 submissions; relevantly (at [22]):

The 2015 submissions…are to the following effect:

…

e.     [the appellant] has not revealed his HIV status to “most of his family, his friends and his co-workers” as he relied and will continue to rely on his family for support should he return to Nepal;

f.     people living with HIV/AIDS (PLWHA) in Nepal experience severe discrimination and ostracism from family, friends, employers, colleagues and the community at large. Knowledge of [the appellant]’s HIV status would lead to discrimination and ostracism of [the appellant], his wife and children which could impact their ability to work and study;

g.     [the appellant]’s family has deep respect in the local community, and should [the appellant]’s HIV status become known [the appellant] fears his brother and father will “cut him off from the family and even harm him physically”;

h.     between 2003 and 2011 [the appellant] did not receive any HIV treatment because of the high costs and limited publicly funded treatments. In 2011 he accessed funding from a local aid agency which enabled him to access treatment;

i.     [the appellant] enlisted the help of an HIV positive friend to attend a clinic around two hours from his home. He enlisted this friend’s help to avoid being discovered attending the clinic himself;

j.     the medicines he took in Nepal gave [the appellant] headaches, created lethargy and made him feel generally unwell, impacting him physically and mentally;

k.     [the appellant] was unable to travel six hours to Kathmandu for viral load testing as he was worried that people would ask why he was going and his HIV status would become known;

l.     HIV treatment facilities in Nepal are limited and poorly resourced, and free treatment requires satisfaction of “strict criteria” and placement in a long queue/waiting list. Treatment is more readily available if an individual can pay for treatment;

m.     there is no guarantee he will have access to funding needed to access treatment on his return to Nepal;

n.     disruptions to treatment, including missing even one dose of medication, can have serious implications for an HIV sufferer, allowing a virus to mutate into a drug-resistant form;

o.     there is no state welfare in Nepal so should [the appellant]’s health deteriorate in Nepal he will have no one to turn to for financial support and accommodation should he become unable to work;

p.     the impact of such consequences together with the impact on the [the appellant]’s wife and children will cause severe psychological harm to [the appellant].

14    At [24], the Tribunal summarises the delegate decision, noting the finding that despite the existence of grassroots discrimination in Nepal, the appellant had not been harmed by anyone in the past; that he had been able to access HIV treatment in the past; and that he and his wife and children had been able to maintain employment and live with the support of family members.

15    At [25]-[28], the Tribunal summarises the Outline of Claims, January 2017 submissions and the February 2017 submissions, noting a concern raised in the latter as to a global reduction in funding for the HIV sector and its implications for the appellant’s future employment prospects.

16    From [30], the Tribunal sets out what it accepts about the appellant’s background, and the course of the Tribunal member’s discussion with the appellant at the Tribunal hearing. At [37], the Tribunal records the appellant’s oral evidence that while he has never publicly mentioned his HIV status, there are rumours in the community due to his past drug use and his work in HIV awareness and education programs. At [38], the Tribunal records asking the appellant whether any problems had arisen as a result of the rumours, and noted that:

[the appellant] did not indicate that he, his wife or his children have been harmed, ostracized or mistreated in any way by any members of the community, school or anyone else in connection with these rumors or in connection with his past drug use which, on his own evidence, appears to have been known within his local community.

17    At [39], the Tribunal finds that the appellant’s wife’s employment had not been affected “despite community awareness that her husband was a former drug user and potentially HIV positive”, and goes on to find:

[the appellant]’s evidence that his wife has been able to retain a local job looking after local children aged two to four years, despite community awareness that her husband is a former drug user who may be HIV positive, does not suggest that her employment has been adversely impact by that awareness or those rumours, or that it will be in the reasonably foreseeable future. Nor does this evidence support the applicant’s claim that he or any member of his family has faced or faces social or familial ostracism or mistreatment of any kind in connection with the applicant’s HIV status or prior injecting drug use being known, rumoured or suspected in Nepal.

18     From [40]-[44], the Tribunal records its discussion with the appellant about his family’s awareness of his HIV status “given the presence of community rumors”. The Tribunal records the appellant’s oral evidence that:

(a)    his brother had heard the rumours and “asked him … if he was taking drugs and if he is HIV positive” and had said that “it is not good to be around such people”;

(b)    the appellant had been living at his parents’ home when using intravenous drugs and his parents had been aware of his addiction since around 2003/4, including his father having seen him under the influence of drugs on one occasion; and

(c)    his mother does not really know what being HIV positive means but has heard the rumours and when someone told her that people who are HIV positive only live for ten years she asked the appellant tearfully if this was true.

19    The Tribunal goes on to summarise at [44] what it put to the appellant:

The Tribunal put to [the appellant] that his evidence overall seems to indicate that his parents and siblings, including his brother do know of [the appellant]’s HIV positive status linked to his prior intravenous drug use. [The appellant] responded that others might guess this because he has worked in that field for many years. The Tribunal explained that while his work may contribute to such rumors/[speculation] and to the Tribunal’s view that his family must know he is HIV positive, other factors, detailed above, compound that view and suggest that despite this, his entire family has remained supportive of himself, his wife and children. The Tribunal explained to [the appellant] that his evidence overall makes it very difficult to accept that his father and/or brother or any other member of his family has had in the past or will have in the reasonably foreseeable future, any intention to stop supporting [the appellant], to ostracise him, harm him in any way or kill him if his HIV status and/or prior drug use is known to them or anyone else.

20    After summarising its discussion with the appellant that his sister is aware, but his wife’s family are not aware of his condition, at [47] the Tribunal summarised a further series of factual propositions that it put to the appellant and the findings it made:

The Tribunal also asked [the appellant] whether, other than hearing of community rumors that he is HIV positive in connection with his prior drug addiction, he has ever personally experienced any other type of harm in Nepal in connection with his prior drug addiction or his actual/assumed HIV status. He responded that he was never the direct recipient of the rumors and he only heard about them through his wife and children. He did not identify being harmed in any other way in Nepal in connection with either his actual or rumored prior drug addiction or his ongoing HIV status. This evidence does not support his claimed fears of future harm in Nepal in the reasonably foreseeable future nor his claims that he experienced social harassment in the past. Nor does it support his claims that he will be rejected by society and deprived of his basic human rights in Nepal in the reasonably foreseeable future should his HIV status become known in his community and/or to his family.

21    The Tribunal then sets out its conclusions at [49]-[51]:

Conclusions regarding family support

On the basis of the above evidence and considerations cumulatively the Tribunal does not accept that [the appellant]’s parents or siblings or his local community more generally in Nepal do not know of his former drug addiction/injection and/or his current HIV status. While the Tribunal accepts that [the appellant]’s father hit him on one occasion before 2004 when [the appellant] was in the family home under the influence of drugs, the Tribunal does not accept that the conduct of his family members to date supports his claim that his father or brother or any member of his family would ostracise or disown him or attempt to harm or kill him in connection with his prior known drug use and/or his HIV status, including in the reasonably foreseeable future. Further, [the appellant]'s evidence does not reveal his brother to have given any indication of any intention to harm [the appellant] at any time, despite the Tribunal finding that his brother has been aware of [the appellant]’s HIV status linked to prior drug use for some time. [The appellant]’s family has, contrary to the [the appellant]’s claims that they may disown him, not support him, harm him or kill him should they know of [the appellant]’s HIV status, continued offering [the appellant], his wife and children a home to live in as well as other support, including financial. His own written evidence is that “my mother, father and brother have provided financial assistance that has helped supplement the income of my wife and the money that I have been able to make from conducting programs for [the HIV charity]”. Further, his family’s sources of financial support are further supplemented by [the appellant]’s wife who, despite the existence of community rumors and speculation linking her husband to HIV infection from prior drug use, has maintained stable employment at a local school/child care facility for some four years. There is no persuasive evidence before the Tribunal that [the appellant] will not have access to strong family support from his parents, siblings and wife in the reasonably foreseeable future even if his illness progresses to a point where he is unable to support himself, contribute to the family income, or look after his own daily needs. The Tribunal finds that, should [the appellant]’s illness progress to a point where he is unable to source employment, support himself, contribute to the family income, or look after his own daily needs, he will continue to be supported by his parents, siblings and his wife in terms of his general capacity to subsist. The Tribunal is not satisfied that [the appellant]’s family contributes in any way to a real chance of [the appellant] facing serious or significant harm as contemplated by the relevant law, in Nepal, in the reasonably foreseeable future.

Conclusions regarding social stigma and ostracism

Regarding social stigma and ostracism, while the Tribunal accepts that stigma and misunderstanding around HIV/AIDS persists in Nepal [the appellant]’s evidence regarding his own and his family’s experiences to date suggest that he/they have not and will not, in the reasonably foreseeable future, experience stigma and ostracism to a degree which rises to the level of serious or significant harm as contemplated by the relevant law in connection with [the appellant]’s HIV status and prior drug use being known. Rather, [the appellant]’s evidence reveals that, despite rumours and speculation that [the appellant] is HIV positive due to his generally known prior injecting drug use, [the appellant] has: maintained sound employment at [the HIV charity]; has cited only one example of hostility which arose in the context of [a HIV charity] information session delivered by a doctor at which [the appellant] was present (discussed further elsewhere in this decision record); been able to maintain a profitable side business running events such as community dances and sporting events which rely on sponsorships and ticket sales amongst the local community. His continued ability to make a meaningful profit from this side-business together with the other cumulative factors identified above, do not suggest that [the appellant] or his business or family have been ostracized either financially or socially by their community in Nepal. Further, despite the existence of long-running rumors of [the appellant]’s HIV status, his wife managed to secure employment as the carer of young children at a local school and has maintained that employment for some four years in Nepal. Her work in the trusted capacity as the carer for young children in the community does not suggest that she is viewed with concern or that she has experienced any form of ostracism in relation to [the appellant]’s speculated HIV positive status linked to his generally known prior injecting drug use.

Regarding the submission made that the discrimination and stigma [the appellant], his wife and/or children may face in Nepal, together with the impact of [the appellant]’s likely declining health in the future, may cause [the appellant] significant psychological harm which constitutes persecution and may also cause [the appellant] to resume his drug habit, the Tribunal makes the following observations and findings. While the Tribunal accepts that ignorance, stigma and ostracism against PLWHA in Nepal continues to exist in some areas of Nepal, as revealed by country information detailed in Annexure 2 and as referenced in later sections of this decision, the Nepali Government has spent significant amounts of money to improve education, information and awareness about HIV/AIDS transmission and treatment in a bid to mitigate against the effects of social stigma. Further, despite [the appellant] being suspected and rumoured amongst his local community to be to be HIV positive in connection with his prior drug use, his own evidence is that he has not so much as directly experienced any negative words, discrimination or harm of any type in Nepal. Nor have his wife or children. Contrary to this his evidence is that he has maintained close and consistent family support including being able to live, together with his wife and two of his children in his parents’ home; he has had stable and ongoing employment since 2004, primarily but not exclusively with [the HIV charity]; in addition to this employment he has run a successful side business organizing dance parties and sporting events from which he makes between NPR30,000 to NPR 50,000 per event, holding around six such events each year. Notably, [the appellant] told the Tribunal that he received sponsorship and sells tickets to community members interested in participating in such events, indicating that despite community speculation that he is HIV positive as a result of intravenous drug use in the past, he remains socially integrated and members of the community continue to engage with him on a level where he can maintain a profitable side business. While it is claimed at [the appellant] fears that the social stigma he would experience in the reasonably foreseeable future in Nepal, including in the context of his declining health, would cause him psychological harm rising to the level of serious or significant harm, the Tribunal does not consider this to be supported by what the Tribunal accepts of [the appellant]’s social and familial circumstances and his experiences to date. The Tribunal considers his evidence overall to suggest that he continues to be supported and integrated on a family and community level in Nepal despite it being generally known or suspected that he suffers HIV in connection with his prior drug use. The Tribunal is not satisfied on the evidence before it that, even as [the appellant]’s health declines, he or his wife or children face a real chance of social stigma, ostracism or mistreatment which will give rise to harm, including psychological harm to [the appellant], amounting to serious or significant harm as contemplated by the relevant law, in Nepal, in the reasonably foreseeable future. Nor does the Tribunal accept that such pressures give rise to a real chance that [the appellant] will resume his drug use in Nepal in the reasonably foreseeable future.

(Footnotes omitted.)

22    The Tribunal explored the appellant’s past experiences regarding access to HIV/AIDS testing, treatment and medication and to medical care more generally in Nepal. Correctly, it reminded itself at [52] that: “While mindful that past experiences are not determinative of what may await an applicant in the reasonably foreseeable future, they remain of some relevance to that assessment”. In particular, the Tribunal canvassed:

(a)    country information set out in Annexure 2 to the decision record at [95]-[102], indicating access to viral load testing in his home city and Kathmandu ([53]-[55]);

(b)    the appellant’s capacity to access healthcare, finding that he had in the past been able to access treatment at government hospitals in Nepal and could again in the future ([56]-[57]);

(c)    the appellant’s evidence of accessing treatment for non-HIV related medical issues, including appendicitis, in Nepal ([58]);

(d)    the appellant’s evidence of interactions with HIV treatment centres in Nepal, finding it implausible that clinics dispensing his HIV medication would not be aware of his HIV status ([58]);

(e)    confidentiality of medical records, finding breaches of confidentiality unlikely and that the appellant has information about providers to make informed treatment choices: [59];

(f)    the appellant’s claims that he may not be able to access charitable funding which he previously relied on to access HIV treatment in Nepal, finding those claims to be “highly speculative” ([60]);

(g)    whether any downturn in global HIV funding would impact the appellant’s ability to source income in Nepal, finding that he had employment prospects outside the HIV charity sector ([61]); and

(h)    the availability of appropriate medical treatment, testing and care in Nepal in the reasonably foreseeable future, relying on country information sourced by the Tribunal to find that the appellant would be able to access medication with lower toxicity than in the past, and better care of related co-infections and co-morbidities ([61]-[63]).

23    The Tribunal then made the following findings about the likelihood the appellant would suffer significant harm on return to Nepal for the reasons he had nominated, at [64]-[67]:

Based on all the evidence before it and the cumulative considerations, concerns, reasons and findings above, the Tribunal is not satisfied that [the appellant] faces in Nepal in the reasonably foreseeable future, a real chance of serious or significant harm as contemplated by the relevant law, for any of the reasons claimed or arising on the evidence, including cumulatively. Specifically, the Tribunal does not accept that [the appellant] faces a real chance of mistreatment, including neglect, discrimination, social stigma, harassment, ostracisim [sic], denial of access to employment, denial of access to medication, medical services or testing which singularly of [sic] cumulatively give rise to harm amounting to serious or significant harm as contemplated by the relevant law. The Tribunal does not accept that he faces a real chance of being “deprived of basic human rights” or a real chance that he will not be able to “buy from the shops”, as his [2014 submissions] claimed. The Tribunal does not accept that [2014] submission that [the appellant], as a person with HIV, has been or will be rejected by his family or society more generally as an person who is HIV positive in connection with his former drug use. Regarding the [2014 submission] that social stigma around HIV/AIDS in Nepal adversely impacts the management of a sufferers health and results in a reduction or denial of care, breaches of confidentiality, withholding information and mistreating patients, the Tribunal notes [the appellant]’s extensive years’ of work experience in the area of HIV/AIDS education, awareness and advocacy in Nepal. The Tribunal considers his familiarity with the services and training of service providers in Nepal to be an advantage he will carry into the future and which will allow him to make informed choices regarding the reliable and best service providers in Nepal through which to source testing and treatment, as he has demonstrated himself to have done in the past.

Regarding his capacity to subsist, the Tribunal does not accept that social stigma or discrimination has adversely impacted [the appellant]’s capacity to source employment and conduct a successful side business organizing events which requires community sponsorship and support, despite his evidence revealing long standing community speculation and assumptions that he is HIV positive as a result of his former drug use. Even acknowledging that [the appellant]’s illness may progress to a point where he is no longer able to work, the Tribunal does not accept that he will be disowned or not supported, including in terms of his needs for shelter, food or other basic needs, by his family, including his parents, his siblings and his wife. The Tribunal does not accept that [the appellant] faces a real chance of mistreatment linked to stigma or otherwise in connection with his HIV status linked to his known prior drug use, which will deny him the capacity to subsist. The Tribunal finds, rather, that his capacity to subsist will be secured by his supportive family throughout his life, even if his illness may ultimately deny him the capacity to earn his own income.

Regarding his fear that his wife and children may face social stigma which may adversely impact their capacity to study and/or work, while the Tribunal accepts that [the appellant] has this subjective fear, on the evidence he has advanced his wife and children continue to work and study in Nepal without any adverse interference from anyone despite [the appellant]’s evidence revealing that [the appellant] is generally known or suspected to be HIV positive as a result of his prior drug use.

Further, as reasoned in preceding paragraphs, the Tribunal is not satisfied that [the appellant] faces a real chance of being denied access to effective, appropriate medical treatment, testing and services in Nepal as and when he needs them, whether he has access to charitable funding or not. Nor is the Tribunal satisfied that [the appellant] has in the past, or will in the reasonably foreseeable future, not access treatment he needs out of fear of his HIV status being disclosed to his community more generally.

24    The Tribunal then expressed its conclusions as to its lack of satisfaction under both the refugee and complementary protection criteria at [68]-[78].

FCC decision

25    The amended application to the FCC contained three grounds of review. The second ground was that the Tribunal failed to make reference to the evidence on which it had based its findings of fact. That ground was not pressed below (see reasons at [13]) and has not been pursued in this appeal. The other two grounds before the primary judge were as follows (reasons at [7]):

1.    The [Tribunal] miscarried the statutory task of conducting a review in accordance with s 414 of the Migration Act 1958 (Act) by failing to consider the relevant country information squarely before the decision maker.

    …

3.    The [Tribunal] failed to consider an integer of [the appellant]’s claim and thereby constructively failed to exercise the review jurisdiction conferred on it by the Act.

Particulars

(a)     [The appellant] claimed that he had only disclosed his HIV status to a limited group of persons due to fear of repercussions to him, his wife and his children if his HIV status was more widely known.

(b)     In not accepting “that [the appellant]’s parents or siblings or local community did not know of his former drug addiction and/or his current HIV status” (emphasis added), the [Tribunal] left open the possibility that persons may have known of his drug addiction but not his HIV status.

(c)     The [Tribunal] was obliged in these circumstances to consider [the appellant]’s claim that he had not disclosed his illness, and went to some lengths to keep it hidden, due to the fear of the repercussions for himself, his wife and his children that he articulated.

(Original emphasis.)

26    In relation to ground 1, the FCC understood the appellant’s argument to be that by focusing on his individual circumstances, the Tribunal had erroneously excluded from consideration country information he had provided about persecution of people living with HIV/AIDS in Nepal more generally (reasons at [8]). The FCC found that there was no reason to doubt the Tribunal’s statements that it had had regard to country information, including that submitted by the appellant (see [9]-[10]). The FCC also found that the Tribunal was entitled to select the information it would rely on and was not required to refer in its reasons to every piece of evidence before it.

27    The FCC was not persuaded that a failure to refer expressly to country information cited by the appellant manifested “a failure to give that material the level of consideration the law required”: at [11]. The FCC continued at [12]:

But in any event, it was not demonstrated that any failure of that sort affected the exercise of the power: Hossain v Minister for Immigration & Border Protection (2018) 264 CLR 123 at 134-135 [29]-[30]; Minister for Immigration & Border Protection v MZYTS (2013) 230 FCR 431 at 451 [68]. In that connexion I note and accept the Minister’s submission that the information in question was not central to the Tribunal’s review, which was concerned with [the appellant]’s individual circumstances. Although the general social environment in Nepal had some contextual relevance to that inquiry, the fact is that the Tribunal found that [the appellant]’s health status was no secret to his family, and was at least rumoured in his local community, and yet he had suffered no family rejection or societal discrimination, let alone persecution. It was not unreasonable or illogical of the Tribunal, particularly in light of the country information it chose to rely on, to conclude that the same situation would obtain if [the appellant] were to return to his home in Nepal.

28    In relation to ground 3, the FCC found the Tribunal had not accepted the factual premise of the appellant’s contention that he would suffer harm if his condition were to become widely known: at [15]. The FCC found at [15]-[16] that the Tribunal:

was satisfied that [the appellant]’s family did know of his health status and that the local community speculated that he might well be HIV-positive because of his historical intravenous drug abuse.

Read fairly, what the Tribunal was saying was that his family knew of his HIV status and the local community’s suspicions were such that actual knowledge would not have led to a difference in treatment of [the appellant] that would have been relevant to his application for a protection visa.

29    The FCC held that no jurisdictional error had been made out, and dismissed the application.

Grounds of appeal

30    There are two grounds of appeal from the orders of the FCC, with each containing a number of sub-grounds. In large part, both grounds focus on the same errors advanced before the FCC, although there are some nuances and two new contentions. The grounds of appeal are particularised as follows:

1.    The Primary Judge erred in finding that the decision of the Second Respondent was not affected by jurisdictional error for failure to perform its statutory task by considering country information, and ought to have found that it was affected by such jurisdictional error, in that:

a.    the Primary Judge erred in finding:

i.    that the Second Respondent had not failed to consider the country information squarely before them (Judgment at [11]);

ii.    that the Second Respondent did in fact have regard to such country information (Judgment at [11])); and

iii.    implicitly, either that the Second Respondent did in fact consider such country information in a real or active way, or that it was sufficient for the Second Respondent merely to have had regard to it; and

Particulars

1.    The country information in question was that which was referred to in the Appellant’s submissions to the Second Respondent, which the Second Respondent did not refer to in its decision, and which it either did not have regard to at all, or did not consider in a real or active way.

2.    By failing to consider relevant county information in a real or active way, and instead relying upon the Appellant’s personal circumstances in the past, the Second Respondent failed to conduct a review of the decision and to apply the appropriate ‘forward looking’ test, and thereby miscarried its statutory task under s 414 of the Migration Act 1958 (Cth).

b.    the Primary Judge erred in finding that any failure of the Second Respondent to have regard to, or to consider, any such country information would not amount to jurisdictional error because it was not central to the Second Respondent’s decision and because it was not shown that the information in question might have affected the Second Respondent’s conclusion (Judgment at [12]).

Particulars

i.    It ought to have been sufficient to establish jurisdictional error to show that the Second Respondent had not had regard to such country information or did not consider it in a real or active way.

ii.    In any event, the country information in question was central to the Second Respondent conducting a proper review of the decision. It was necessary for the Second Respondent to engage with the relevant country information to assess the risk of harm in the foreseeable future.

2.    The Primary Judge erred in finding that the decision of the Second Respondent was not affected by jurisdictional error for a failure to consider an integer of the Appellant’s claim, and ought to have found that it was affected by such jurisdictional error, in that:

a.    the Primary Judge erred in finding that the Second Respondent did in fact consider the Appellant’s claim that he had disclosed his HIV-positive status to only very few people and thereby had considered that integer of the Appellant’s claims (Judgment at [15]-[16]);

Particulars

i.    The relevant integer of the Appellant’s claim was that he had disclosed his HIV-positive status only to a limited number of people due to fear of harm, that other people in his family or the community generally did not know of his HIV-positive status, and that he feared harm to himself, his wife or his children if he were to return and his HIV-positive status became more widely known than it in fact was.

ii.    The Second Respondent found that the Appellant’s family and community knew “and/or” suspected that the Appellant engaged in intravenous drug use “and/or” that he is a person living with HIV, but did not clearly find who knew one or the other of these matters, who merely suspected them, or what consequences would arise if they became more widely known.

iii.    The Second Respondent was obliged to consider the Appellant’s claim that he had not disclosed his illness beyond a limited number of people, that he went to some lengths to keep it hidden due to his fear of harm for himself, his wife or his children, the likely consequences of continuing to conceal such matters, and the likely consequences if such matters became more widely known in the future.

b.    the Primary Judge erred in finding that the Second Respondent had implicitly found that there was no material difference between speculation as to the Appellant’s HIV-positive status and actual knowledge of his HIV-positive status (Judgment at [16]); and

Particulars

i.    Any such finding was not the subject of submissions or evidence, and does not appear from a fair reading of the reasons of the Second Respondent.

ii.    Alternatively, if any such finding was in fact made by the Second Respondent, the making of such a finding would itself amount to a denial of procedural fairness or natural justice, such that the decision of the Second Respondent would be affected by jurisdictional error.

c.    In addition to the grounds relied upon before the Primary Judge, the Second Respondent failed to consider the integer of the Appellant’s claim that he would be denied medical services generally, and not merely medical services specific to treatment or care for HIV/AIDS, if his HIV-positive status were to become more widely known in his family or the community generally.

Particulars

i.    The relevant integer of the Appellant’s claim was that he would be at risk of suffering harm if he were to return and his HIV-positive status became more widely known than it in fact was, because he would be at risk of being denied access to medical services generally, as well as medical care specific to HIV/AIDS.

ii.    The Second Respondent made findings to the effect that the Appellant would not be at risk of harm by reason of being denied access to medical services specific to HIV/AIDS, but did not make findings regarding whether he would be at risk of harm by reason of being denied access to medical services more generally.

iii.    The Appellant will seek leave to rely upon this ground in circumstances where the Respondents are not likely to suffer any prejudice by reason of the inclusion of this ground, this Court is in the same position to make findings with respect to this ground as the Primary Judge had been, and the Appellant would suffer significant prejudice if he were not permitted to rely upon this ground as establishing jurisdictional error in the decision of the Second Respondent.

31    At the hearing before Farrell J on 21 July 2021, her Honour raised with the parties whether leave was required for the appellant to rely on ground 2(b), as it had not been raised before the FCC. The Minister indicated that leave was not opposed, because the procedural fairness issue fairly emerged from the reasons of the FCC.

32    The parties also agreed that the appellant required leave to rely on ground 2(c), as it was also not raised before the FCC. During oral submissions, counsel for the Minister relied on written submissions opposing the grant of leave. Farrell J stated the Court would reserve the question of leave to allow the parties to engage in full argument on the merits of the grounds of appeal. Leave for ground 2(c) is therefore considered below in the section of these reasons dealing with the ground of appeal itself.

Appellant’s submissions in summary

33    The central contention in ground 1 is that while the Tribunal considered the appellant’s past experiences, it did so to the exclusion of general country information regarding stigma and discrimination against people living with HIV/AIDS in Nepal. The appellant contends that both considerations were relevant to any assessment of the risk to the appellant of future harm. This is because the appellant’s argument before the Tribunal was that his past treatment occurred in circumstances where his HIV status was suspected by his broader family and community, rather than known; and his treatment by others would worsen if his status became known. If his status were to become known, then the general country information regarding stigma and discrimination would come to apply to him.

34    In terms of identifying error by the FCC, the appellant submitted, in summary:

(a)    As to ground 1(a), the FCC should have found the Tribunal failed to consider material put to it that had a bearing on its statutory task. He does not rely only on a failure to refer to the country information he provided, but a failure to consider it in a “real and active way” and to engage with the points referred to by the appellant about increasing stigma and discrimination against people living with HIV/AIDS in his submissions to the Tribunal. The appellant relied on Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431.

(b)    As to ground 1(b), the error focused on the FCC’s finding that any failure to consider country information by the Tribunal (if contrary to the view of the FCC there was such a failure) was not material. The appellant submitted the FCC had not applied the correct approach to materiality. He also submitted that “as a matter of law, he was not required to show materiality of the error in question beyond showing that the Tribunal failed to consider the material relied upon in a real and active way”, relying on ADU18 v Minister for Home Affairs [2020] FCA 366 at [66], Derrington J.

(c)    As to ground 2(a), the FCC was wrong to find the Tribunal had in fact considered an integer of the appellant’s case; namely that he had disclosed his HIV-positive status only to a few people, and he may suffer harm if his status were to be more widely known within his family or his community.

(d)    As to ground 2(b), the FCC had no basis to infer the Tribunal implicitly found no material difference between knowledge and speculation. If the Tribunal did implicitly make this finding, it had denied the appellant procedural fairness.

(e)    As to ground 2(c), a new and further error contended by the appellant to have been made by the Tribunal was its failure to deal with an aspect of the appellant’s case; namely that “the prejudice concerning people living with HIV in Nepal was such that he would suffer harm through restricted access to medical services more generally”.

Consideration

Ground 1(a)

35    The appellant’s submissions are carefully put to reflect the language in MZYTS. In MZYTS, the Full Court said at [34], [38]-[39], [45] and [65]:

Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.

…

That task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there. While it is most certainly the case that “[i]t is for the applicant to advance whatever evidence or argument she [or he] wishes to advance in support of her [or his] contention that she [or he] has a well-founded fear of persecution for a Convention reason”, the Tribunal “must then decide whether that claim is made out”: Abebe v Commonwealth (1999) 197 CLR 510 at [187]. Evidence and material about what it was like for “ordinary” MDC supporters and members in 2002, or 2007, or 2010 might give the most accurate picture, but that decision could only be made by the Tribunal after evaluation of all the pertinent material put forward by the visa applicant in support of the specific claim (and, of course, any contradictory information to which the Tribunal chose to make reference), including the most recent material and a decision about whether or not things had changed, were changing, were likely to change or had stayed much the same. The evaluation, in the context of a country like Zimbabwe and in the context of the very specific terms of the visa applicant’s claim, needed to include consciousness about the cycle of political violence around foreshadowed and/or actual elections, and other circumstances particular to both the visa applicant and to his country of nationality. This much is clear from the decision of the High Court in S395.

The Tribunal’s reasons do not disclose that it understood and undertook this task. Rather, the reasons — including what is expressed and what is not — disclose the Tribunal did not assess in any real or active way what the situation would be in mid to late 2011 or thereafter for an “ordinary” MDC supporter being returned to Zimbabwe. Nor do the reasons disclose any consciousness that what the visa applicant was articulating (through his own statements and the post-hearing submission of his adviser) was that there was an increased risk of generalised politically-motivated violence due to the foreshadowing by President Mugabe of new elections for later in 2011 and the breakdown of the transitional government’s authority; these events arising, critically, after the publication of the 2010 UK Border Agency fact-finding mission report.

…

The absence of any evaluation of the post-hearing submission on the point and the material said to support it is all the more telling given the Tribunal did not make its decision until November 2011. It was at that date the statute, read in light of the authorities, required the Tribunal to consider whether or not it was satisfied that the visa applicant’s fear of persecution in Zimbabwe by reason of being an actual or perceived supporter of the MDC was objectively well founded. Where the Tribunal’s reasons disclose no evaluation at all of the latest information or evidence available to it, we do not consider it can be inferred that it formed the state of satisfaction required of it.

…

Here, the visa applicant’s contention has never been that the Tribunal failed to take into account a piece of evidence. Rather, it is that the Tribunal did not perform its statutory task, because it failed to determine the visa applicant’s claim that the risk to him on return to Zimbabwe from early 2011 onwards had increased because of the election cycle and consequent political violence in that country, together with his status as an actual or perceived MDC supporter.

(Emphasis added.)

36    In this matter, the Tribunal certainly accepted (at [50]-[51]) that HIV-positive status attracted stigma and discrimination in Nepal. However, it was also satisfied (at [50]-[51]) that although there was sufficient awareness in the appellant’s family and community to attract the kind of stigma and discrimination that the appellant said he feared, it had not eventuated. The link between the appellant’s circumstances on return to Nepal, and a real chance of the stigma discussed in the country information affecting him in a different way from in the past, could only be established if the Tribunal accepted the premise that people did not already know his HIV status. It did not accept that premise. This is demonstrated by the Tribunal’s findings on the evidence, where the Tribunal refers at [44] to “the Tribunal’s view that his family must know he is HIV positive” and states at [45]:

The Tribunal accepts this evidence which further suggests that [the appellant] is from a supportive family in Nepal which is aware of his prior drug use and his HIV status and has continued to demonstrate support, including emotionally and financially, for the applicant, his wife and children.

37    The Tribunal then concludes at [49]:

On the basis of the above evidence and considerations cumulatively the Tribunal does not accept that [the appellant]’s parents or siblings or his local community more generally in Nepal do not know of his former drug addiction/injection and/or his current HIV status.

38    The Tribunal engaged directly with the February 2017 submissions (at [28]). Much of that part of the Tribunal’s decision where it records the course of the review hearing also makes it clear the Tribunal actively engaged with the appellant during the hearing about the prospect he might be affected by stigmatisation, and how he said that might affect him.

39    In contrast with MZYTS, the post-hearing submissions did not provide any information directly addressing the issue raised extensively by the Tribunal at hearing, regarding the lack of any previous harm notwithstanding that there was already awareness of the appellant’s status in his family and community. The material from the appellant’s submissions before the Tribunal which the appellant contends the Tribunal did not refer to concerned stigma and discrimination against people living with HIV/AIDS in Nepal generally. The question for the Tribunal was not what might “generally” be the situation in Nepal for people with HIV/AIDS, but how the country information, if accepted, might affect its assessment of the chances of significant harm facing the appellant. As fact finder, it was for the Tribunal to decide how to use that country information in its assessment of the risks, if any, faced by the appellant on return to Nepal. In my opinion it undertook this task carefully and, unlike in MZYTS, it did not overlook or fail to evaluate any material that had a bearing on the risks which the appellant might face.

40    The parallel sought to be drawn with MZYTS is, with respect, inapposite because the country information put to the Tribunal in the present case did not reveal any material deterioration in the treatment of people living with HIV/AIDS since the appellant left Nepal, nor any objective basis to foresee that there might be such a deterioration. To the extent that the material about global HIV funding cuts in the appellant’s post-hearing submissions suggested there was some kind of deterioration, it was considered in detail and the appellant’s submissions were rejected by the Tribunal at [61]-[63]. Whereas in MZYTS, the information that the Tribunal failed to engage with emphasized the cyclical nature of election violence.

41    The Tribunal was correctly focused on the appellant’s individual circumstances, and the prospects of significant harm befalling him because he was HIV positive and/or a past injecting drug user. Its fact finding about his family probably already knowing or suspecting he was HIV positive, and there having been no adverse effects for him when he was last living in Nepal, was the crucial aspect of its reasoning. I consider that explains the Tribunal not setting out in any detail the country information about stigma and discrimination that was filed with the appellant’s submissions. The Tribunal well understood that was the general situation: see [50]-[51]. It was correctly focused on whether it was satisfied any such risks might materialise for the appellant. In those same paragraphs it explained it was not so satisfied.

42    It follows that the FCC did not err in the way submitted.

Ground 1(b)

43    Since the High Court’s decision in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123, an additional requirement for the characterisation of an error as jurisdictional has been propounded. The articulation of the threshold for this characterisation has differed somewhat in later decisions. The appellant relies on the recent articulation in Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398, addressed by the parties in supplementary submissions. He submits that decision creates a lower threshold where the error is denial of procedural fairness. The Minister points to a recent Full Court decision in CCU21 v Minister for Home Affairs [2023] FCAFC 87 at [81]-[87], especially [86]-[87], apparently to contend that the Court should not apply the statements by the plurality in Nathanson.

44    Interesting as this legal debate might be, it is not necessary to descend into it here. That is firstly because I have not accepted the appellant’s contentions about there having been any error of the kind alleged in the FCC decision, nor in the Tribunal decision.

45    Second, insofar as at [8] of the appellant’s supplementary submissions it is contended that it was an “integer” of the appellant’s case that there was a distinction between his family suspecting he was HIV positive, and actually knowing he was, in my opinion the Tribunal firmly rejected, as a fact, that there was any such distinction, by rejecting at [49] the submission that his family and local community did not know of his HIV status. In the task conferred on it as fact finder to engage in reasonable speculation about how the appellant would be treated on return to Nepal and into the foreseeable future, having found as a fact that the appellant’s family and local community already knew about his HIV status, then rationally the Tribunal’s understanding must have been that there was no material difference between how he would be treated if his family knew he was HIV positive, as opposed to only suspecting.

46    Ground 1(b) is rejected. The FCC did not err in its approach.

Ground 2(a)

47    As I have explained, the Tribunal rejected the factual premise on which the appellant’s claim was based. Its factual findings at [38]-[47] provide a probative basis for its findings that there was already awareness among the appellant’s family and community of his drug use and HIV status. In turn, the Tribunal’s fact finding provided a rational and logical basis for its conclusion that the appellant had not suffered harm in the past despite what it had found to be an awareness of his status. Accordingly, the Tribunal was not required to consider the hypothetical posed by the appellant that he would suffer harm if people found out.

48    The FCC did not err in rejecting a ground based on this contention.

Ground 2(b)

49    There being no opposition to leave being granted to the appellant to raise this ground, leave has been granted.

50    The distinction sought to be drawn on this appeal between a suspicion and knowledge does not fairly represent how the matter was put to the Tribunal on behalf of the appellant. The appellant’s own contentions to the Tribunal also relied on suspicion: see for example the material extracted from his 2014 Declaration at [21] of the Tribunal decision. Further, the Tribunal’s opinion, as put to the appellant during the hearing, was in the alternative as between suspicion and knowledge; see for example at [40]:

it seems likely that his family, including his father and his brother who he claims might disown, harm or kill him if they know he is HIV positive, already know or strongly suspect this to be the case.

51    At some points in its reasoning, the Tribunal expressly rejected the appellant’s position in his evidence, and instead found such as this at [43], after a lengthy discussion of the evidence:

The Tribunal considers the above to suggest that the applicant’s parents and his family more generally have been aware of his intravenous drug use and his HIV positive status since around 2003/4 and they have continued to support him despite this awareness.

52    The conclusion by the FCC at [15] of its reasons was plainly correct, and reflected the factual findings of the Tribunal, contrary to the claim as put to it by the appellant.

53    It might be thought, with respect, that what the FCC said at [16] was something of a gloss on the Tribunal’s reasons. The main point which answers the appellant’s submissions under ground 2(b) is that the Tribunal was not required to “draw a distinction between knowledge of his status, and merely having suspicion of it without actual knowledge”, because the Tribunal’s fact finding was contrary to the appellant’s claims, and the Tribunal found his family and community knew of his HIV status. If any such distinction was an integer of the appellant’s claim (which I doubt on the material presented to the Tribunal since the appellant also relied on suspicions), then this “integer” was dealt with squarely by the Tribunal by rejecting the factual proposition that his family and community only suspected he was HIV positive, instead finding they knew he was HIV positive and then further finding that they had not treated him any differently and had continued to support him.

54    There is no error in the FCC reasons as alleged.

55    Therefore, there was no denial of procedural fairness, because the Tribunal did not decide “the case on a basis that was not put to it or communicated to [the appellant]”: see appellant’s submissions at [42]. The Tribunal simply rejected the factual premise put to it that the appellant’s family did not know he was HIV positive when he was last living in Nepal.

56    This aspect of ground 2(b) must be rejected.

Leave to rely on ground 2(c)

57    I have explained my approach to leave to raise a new ground of review for the first time on appeal: see, eg, CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [13]-[29]; BKQ16 v Minister for Immigration and Border Protection [2019] FCA 40; 163 ALD 127 at [73]-[76]. Broadly, it will not be in the interests of justice to grant leave to raise a new ground of review for the first time on appeal if the ground lacks merit.

58    In ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25], I said:

The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law.

59    I have previously cautioned against imposing too high a threshold of merit at the leave stage. The ground should be “arguable”, that is, it must not be “fanciful, illogical, impermissible or devoid of merit, but ha[ve] a level of rationality and a basis in the material … sufficient for the Court to be satisfied it is appropriate to hear full argument”: see CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [5]-[6].

60    There are of course other considerations which may relate to the grant of leave, but in the present case there are no other considerations which would render it in the interests of the administration of justice for leave to be granted. The appellant was legally represented in the FCC by the same solicitor as represented him on the appeal. No explanation has been offered for why the issues raised by ground 2(c) were not raised in the proceedings before the FCC.

61    Nevertheless, the appellant is correct that the proposed new ground does not require any further evidence, and because it concerns an alleged failure to consider an integer of a claim, this Court is in as good a position as the FCC to consider it. That matter, combined with the nature of the appellant’s visa application as a protection visa application, would have weight if the Court were persuaded the ground had merit.

62    At [64] of its reasons the Tribunal found:

Based on all the evidence before it and the cumulative considerations, concerns, reasons and findings above, the Tribunal is not satisfied that the applicant faces in Nepal in the reasonably foreseeable future, a real chance of serious or significant harm as contemplated by the relevant law, for any of the reasons claimed or arising on the evidence, including cumulatively. Specifically, the Tribunal does not accept that the applicant faces a real chance of mistreatment, including neglect, discrimination, social stigma, harassment, ostracisim [sic], denial of access to employment, denial of access to medication, medical services or testing which singularly of [sic] cumulatively give rise to harm amounting to serious or significant harm as contemplated by the relevant law. The Tribunal does not accept that he faces a real chance of being “deprived of basic human rights” or a real chance that he will not be able to “buy from the shops”, as his former RMA has claimed. The Tribunal does not accept that RMA's submission that the applicant, as a person with HIV, has been or will be rejected by his family or society more generally as an person who is HIV positive in connection with his former drug use. Regarding the submission of the applicant’s former RMA that social stigma around HIV/AIDS in Nepal adversely impacts the management of a sufferers health and results in a reduction or denial of care, breaches of confidentiality, withholding information and mistreating patients, the Tribunal notes the applicant’s extensive years’ of work experience in the area of HIV/AIDS education, awareness and advocacy in Nepal. The Tribunal considers his familiarity with the services and training of service providers in Nepal to be an advantage he will carry into the future and which will allow him to make informed choices regarding the reliable and best service providers in Nepal through which to source testing and treatment, as he has demonstrated himself to have done in the past.

63    The appellant contends (submissions at [46]) that the Tribunal’s finding at [64] does not deal with his contention that the prejudice concerning people living with HIV/AIDS in Nepal was such that he would suffer harm through restricted access to medical services more generally. The point being, as I understand it, that the appellant might suffer discrimination in accessing medical care and treatment for “ordinary” health issues, such as the appendicitis example referred to in the Tribunal’s reasons at [58].

64    In my opinion, the Tribunal’s finding at [64] adequately covers this aspect of the appellant’s claim, in particular in the last sentence. This sentence echoes some of the earlier findings of the Tribunal, for example at [56] about the advantages the appellant himself accepted his work and previous experience gave him.

65    I do not consider this new ground of review is sufficiently arguable to warrant the grant of leave. Accordingly, leave will be refused.

Conclusion

66    The appeal must be dismissed.

67    The parties will be given an opportunity to make submissions on costs. If the parties are agreed on appropriate costs orders, they may submit proposed consent orders to the Court.

Associate:

Dated:    15 September 2023