The applicant had become HIV positive after being raped in South Africa, her country of origin. At her appeal before the Refugee Appeals Tribunal, the applicant’s legal representative submitted that being HIV positive in South Africa was tantamount to a death sentence, but did not make further submissions on the matter in terms of the principles of refugee law.
The Tribunal dismissed the applicant’s appeal and the applicant challenged this decision on the ground that the Tribunal did not deal with the possibility that she had a well-founded fear of persecution in South Africa because she was HIV positive. The Court in granting leave held that it was arguable that HIV positive women in South Africa constitute a particular social group in need of protection for the purposes of the Refugee Act and that it was arguable that an onus devolved on the Tribunal to investigate and consider the matter, once the matter was before it, despite a lack of submissions in terms of refugee law. The High Court subsequently granted judicial review.
