1711795 (Refugee)

1711795 (Refugee) [2020] AATA 6040 (17 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711795
COUNTRY OF REFERENCE:                   Brazil
MEMBER:Jane Marquard
DATE:17 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 February 2021 at 9:56am
CATCHWORDS
REFUGEE – Protection visa – Brazil – stress of the natural disaster –economic hardship –business dispute –travelled to Australia for better opportunities for professional growth – gangster –coronavirus– distress or anxiety caused by past event would not amount to persecution –no well-founded fear of –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a [age]-year-old national of Brazil. He first arrived in Australia [in] August 2015 on a Student [visa].
He applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 16 May 2016. A delegate of the Minister for Immigration (the Department) refused to grant the visa on 9 May 2017.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
The Tribunal must decide whether the applicant meets the refugee or complementary protection criteria set out in the Act. While the Tribunal has sympathy for the applicant’s position in that he has settled into life in Australia, having lived here since 2015, the Tribunal has decided to affirm the decision under review. A summary of the legal criteria for the visa, the evidence provided by the applicant, and the findings and reasons of this Tribunal are set out below.
SUMMARY OF RELEVANT LAW AND PRINCIPLES
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). Attachment A sets out extracts of the legislation.
An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other 'complementary protection' grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a) of the Act.
Under s.5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-5LA of the Act, which are extracted in the attachment to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
President’s Direction
The Tribunal has had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020. The Tribunal also had regard to President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018. In particular:
·that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[1] and
·that ‘generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[2]
[1] At [2.1] (consistent with AAT Act 1975 s.33(1)(b)).
[2]At [8.1].
The Tribunal exercised its discretion to hold the hearing via MS Teams video due to the COVID-19 pandemic. The Tribunal was satisfied that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant and that the hearing provided a real opportunity to be heard.
In making these alternative arrangements, the Tribunal had regard to the objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that he could hear and see, and the Tribunal was able to interact with the applicant and maintain line of sight and appropriate communication throughout the proceedings.
CLAIMS AND EVIDENCE
The evidence taken into consideration
In coming to a decision, the Tribunal has taken into consideration information provided to the Department as well as evidence before this Tribunal, as summarised below. The Tribunal has also considered independent sources about Brazil.
Summary of evidence before the Department
The applicant made claims and provided information in his application forms and supporting documents. The applicant also provided evidence at an interview with the Department on 8 May 2017. A summary of his evidence is set out below.
The applicant was born in Rio de Janeiro. His parents and two daughters live in Brazil.
After school he commenced a [degree] for three years from [year] to 1987 but he did not complete the degree.
From 1994 to 2006 he lived in [Country 1].
He completed [a qualification] in 2011.
He has worked in [a certain industry]. He was a volunteer worker in Brazil from 2014 to 2015.
He stated that he was applying for a protection visa ‘for a period of up to three years’. He said he did not want to live in his hometown since the occurrence of a huge natural disaster in 2011. He said that the event was considered by the United Nations as the biggest climatic catastrophe in the country and the ‘number 8’ largest landslide worldwide, costing the lives of nearly 1000 people. He said that he lost friends and personal assets, leaving him in a ‘really bad’ financial situation. He said that with the stress of the disaster and the economic hardship, he came to Australia to look for a better life. Before this he lived in [Country 1] for 13 years.
He also claimed that he did not feel confident to return to Brazil due to political turmoil with politicians embroiled in a fight for power. He said that there was opposition against the president Dilma Roussef. He said that if he returned to Brazil, he would not have a job and would have to depend on his parents. He aid that he had experienced political persecution ‘for the last couple of years’.
He said that he did not experience harm in Brazil. He did not relocate for financial reasons. He said that he did not think that he would be harmed or mistreated if he returned. He believed that the authorities could protect him.
The applicant elaborated on his claim in an interview with the Department on 8 May 2017. He said that his country was about to have a civil war, it was unstable and there was no hiring and for this reason he was not willing to return. He said that there was a great deal of violence in the country. Asked who could harm him, he said it would be the status quo or he could be the victim of crime.
He said that he travelled to Australia for better opportunities for professional growth.
When pressed, he said that his political opinion does not accord with the status quo and his party lost power. He said that he had not been harmed for his political opinion. However he feared not being able to get a job.
He said there were extenuating circumstances as he lost friends and assets in the climatic disaster in 2011.
Documents provided by the applicant
The documents submitted to the Department and Tribunal are set out in Attachment B.
Summary of evidence before the Tribunal
The applicant made additional claims to the Tribunal in statements dated 6 June 2018, 17 November 2018 and 13 October 2020.
He said that he lived in [Country 1] from 1994 to 2006 working [in specified field]. He returned to Brazil in 2006 and lived there until 2015 when he travelled to Australia.
He said that Brazil was experiencing economic stagnation and social segregation due to political corruption, and life was hard for everyone in Brazil. He said that the Brazilian government is disrespectful of citizens and that there is social inequality.
He claimed that in the first three weeks of 2018, there were more people killed in Brazil than all the terrorist attacks in the world combined for the previous year. In 2015, more than 50,000 people were murdered in Brazil.
He claimed that the Brazilian government is disrespectful of its citizens and that there is social inequality, and a dangerous and violent environment. He said that the situation in Brazil is ‘getting out of control’.
In his submissions in 2018 he claimed that the newly elected President favoured the return of the status quo of the military era in Brazil and that the last military regime lasted for 25 years without presidential elections. In 2020 he claimed that the society had become sick and violent, and the newly elected President was polemical and reactionary.
He said that he lived in low-income communities known as ‘favelas’ in Brazil and he received threats from a particular ‘drug gang’. He said that after some ‘bad consecutive events’ he felt that he had no option but to leave the country in order to feel safe. The applicant said that he ‘almost felt like a foreigner’ in his own country due to living outside Brazil for so many years.
The Tribunal discussed the applicant’s claims with him at a hearing on 18 November 2020.
The applicant confirmed that he was born in Rio de Janeiro. His parents are retired, and they and his sister are living in Rio. Before retirement, his mother worked as [an occupation] and his father at a [workplace]. His sister, who is divorced, lives with and cares for his parents. She used to be [an occupation]. She graduated in [course] recently and has started working. He has many relatives living in Brazil.
The applicant started a [degree] in Brazil in [year], but he withdrew as he was working at the same time and it was expensive to study. He worked [doing specified tasks]. Inflation was very high at the time. He dealt with [organisations] and often did not get paid on time, so it was difficult financially for him.
The applicant left Brazil in 1994 as he was declared bankrupt. He moved to the [Country 1] as he could not keep up with payments because of the staggering 2000% per year inflation.
He lived in [Country 1] for 13 years doing informal jobs. There was a big Portuguese and Spanish community and he was welcomed. His main job was [doing a task].
He left [Country 1] in 2006 because he was feeling homesick and lonely. He ‘really missed’ his parents. However, when he reached Brazil he was ‘in shock’. He said that although it is a rich country, the administration was so poor that there was significant poverty. There are many slum communities. He stayed with his parents for a month, then rented a small apartment on the border of a favela, a poor community. There was significant poverty in the area, and it was an unpleasant area in which to live. He could not find any work but did some [casual] work. He said that it is difficult to work in Brazil when a person reaches a ‘certain age’ and does not have sufficient funds to establish his or her own business.
The applicant said that he ran out of money and had to ask his parents to lend him money. He did a [course] [after] two years. He tried to find work in that field but was unable to do so.
He has had de facto relationships with two different women and has two [daughters]. Their mothers have re-married and his daughters are ‘part of the new families’. One lived with his parents while he was in [Country 1] as her mother came from a poor background. One is now at college, and the other has graduated. One of his daughters does not talk to him. He speaks to the other daughter, but she has no intention to come to Australia. She lives on a good stretch of the beach as his parents support her. But he ‘cannot ask his parents for money’.
The applicant said that after he got his [qualification], he was hoping to find employment with his local council, and he did some volunteer work for his local [committee]. He volunteered for a [year].
The applicant said that he travelled to Australia because he had a ‘problem with a gangster’ right before he applied for a visa for Australia. He had heard Australia is a beautiful place. He said that the favelas are controlled by criminal groups who are territorial. The gangs fight between themselves and with the police. An individual who sold drugs did not like the applicant. He told the applicant that if he stayed in Brazil he would kill him. He told the applicant he would take him ‘before his crime tribunal’ and would kill him. He claimed that the police do not get involved in these kinds of disputes. The applicant knew this person because he ‘hung around’ the bad area and on one occasion had tried to attack his neighbour because she was transgender, and the applicant intervened, and they fought. He said that ‘the next thing he knew’ was that he found out that the man was a drug dealer and was dangerous. His neighbour told him that this gangster would return and harm him. He said that after the fight he did not see the drug dealer again, but he was told that the man said that he would ‘come and get him’. The applicant went to live in a friend’s house. His friend told him he could not live with him forever and said that if the drug dealer wanted to get him, he could. As soon as he could he got a visa and left the country. He was asked if he reported the incident to the police. He said he did not because they could not do anything about it.
The applicant was asked by the Tribunal if he considered moving somewhere else in Brazil to avoid the drug dealer. He said that the gangs are organised, and it is ‘a prize’ for them to catch people. He said he could have hidden somewhere else as it is a big country, but it would have caused him financial hardship, and also he feared contracting COVID-19. He said that it was difficult for him in Rio already and he could not manage financially in a different area. He said that if he stayed with his parents and sister, the drug dealer could find him. If he returned to Brazil he would be ‘looking over his shoulder’ the whole time.
The applicant said that when he arrived in Australia he did not know anyone. He studied to become [an occupation] and stayed in backpacker’s accommodation in Sydney. He also worked as [an occupation]. He now works in [a certain industry].
The Tribunal asked the applicant why he feared returning to Brazil if six years had passed, such that it was unlikely that the gangster would still be seeking him out. He said that he feared returning because of coronavirus and said that it ‘would be a nightmare’. His parents stay at home all the time. The President says that coronavirus is ‘not a big thing’. He said that it is a ‘different reality’ in his country. The applicant stated that he also fears returning to Brazil as he would not be able to get a job. He also still fears returning to Brazil because of the ‘crazy gang member’. People have told the applicant that this gang member will ‘get the applicant’ if he returns. Even though six years have passed there is still a possibility he will be executed. The drug dealer had a good look at his face. He took a picture on his cell phone of him. He believes that he cannot live in Rio de Janeiro and does not want to live in poorer states as he would not be able to get work.
The applicant referred to the climatic disaster in Brazil in 2011 in which heavy rain triggered flooding and landslides in seven counties in Brazil, and entire neighbourhoods were covered. More than 900 were killed and thousands left homeless and there was serious damage to infrastructure.[3] He said that the climatic disaster affected him emotionally as he knew people who lost their lives and lost their homes. He said that he saw coffins and dead people being removed. He had no electricity or food that week. He saw ‘so much suffering’ and ‘suffered psychological hardship’.
[3] ENAP, Busch A and Amorim, S, The Tragedy of the highlands Serrano region in the State of Rio de Janeiro in 2011: looking for answers, 2011
The applicant reiterated that he cannot return to Brazil. He said he loves Australia and is amazed by the administration of government and Australia’s beauty. He confirmed that he feels comfortable in Australia.
He confirmed that he was not involved in political groups or parties in Brazil. He did work for [a] commission which was dissolved by the new political administration.
The applicant showed the Tribunal his social security statement which displayed credits in [Country 1]. He had earned at least 21 credits when he left in 2006. He said that he is a hard and honest worker.
The applicant was asked if he wished to provide any further information or evidence. He said that he might have made mistakes in his application as he did not have a lawyer. He therefore may not have directed his answers towards the relevant criteria. He said that he had tried his best and had been honest and tried to explain all his fears about going back. He said the drug dealer he fears is from ‘CV’, the number one drug cartel, which is present in many states. The cartel also operates in prison. There are no laws which can protect people. The police are corrupt and protect the rich only. The police get drugs from the cartel and they fight back. Sometimes they fire on their homes from helicopters. There is much crime every day. His neighbour told him that the drug dealer is very dangerous. One of the bar owners also told the applicant that the drug dealer works for the drug cartel and it is dangerous and that he would come back for the applicant. After the fight, he woke up the next day to have a beer but a few days later he heard how dangerous the drug dealer was, and then he left the same day. He thanked the Tribunal for the opportunity to give evidence and apologised for not having any police reports or photographs to show the Tribunal.
DECISION OF THE DEPARTMENT

The delegate of the Department was not satisfied that the applicant had a real chance of serious harm for any of the reasons set out in the legislation. The delegate was also not satisfied that there was a real risk of significant harm.
FINDINGS AND REASONS
The findings and reasons of the Tribunal are set out below.
Nationality
The applicant provided a copy of his Brazilian passport issued [in] 2016. The Tribunal is satisfied that the applicant is a national of Brazil.
Findings of fact and satisfying the criteria
When assessing claims the Tribunal must make findings of fact in relation to the claims. This may involve an assessment of an applicant’s credibility. The Tribunal recognises that assessment of credibility can be based on imperfect perceptions of truth and is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions about credibility. In the full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.
This approach is supported in numerous judgments and commentaries. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
The Tribunal has taken this reasonable approach to assessment of credibility in this matter.
It is well-established that although the role of the Tribunal is inquisitorial and that it is for the applicant to satisfy the Tribunal as to the facts, and that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal’s inquisitorial role does not extend to requiring the Tribunal to seek out evidence to support an applicant’s claim, even though the Tribunal is entitled to do so (ABT16 v Minister for Home Affairs [2019] FCA 836). The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70). The Tribunal notes that while the applicant must satisfy the Tribunal that the statutory elements are made out, in this case, the applicant was unrepresented, and the Tribunal has taken an expansive view in ascertaining whether his claims are credible and the elements established.
The Tribunal is guided by the decisions and commentaries referred to above in regard to credibility, and is mindful of the difficulties faced by refugee applicants, including nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. A person may forget dates, locations, distances, events and personal experiences. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility[4], both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. In this case, taking this reasonable approach to credibility assessment, and the fact that the applicant was unrepresented, the Tribunal accepts the applicant’s claims about his experiences in Brazil.
[4] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, >
The Tribunal accepts that he was in his hometown when a massive landslide took place, killing nearly 1000 people, and that he lost friends and witnessed traumatic events. He has referred to this incident since his application, and it is referenced in many articles.[5]
[5] ENAP, Busch A and Amorim, S, The Tragedy of the highlands Serrano region in the State of Rio de Janeiro in 2011: looking for answers, 2011
The Tribunal also accepts that the applicant suffered from financial difficulties in Brazil and found it hard to find a good job. He lived in [Country 1] for 13 years as he found it easier to find work there, and when he returned in 2006 it was difficult to find good work. The Tribunal accepts that he lived on the border of a favela. His precarious financial circumstances have been referred to since his application. The Tribunal also accepts that at the time the applicant applied for the protection visa, he was concerned about political turmoil in Brazil, and that he still has these concerns although the political administration has changed since then.
The Tribunal initially had some doubts as to the credibility of the applicant’s claim that he travelled to Australia because he had a ‘problem with a gangster’ right before he applied for a visa for Australia. The applicant claimed to the Tribunal that he felt threatened by a dangerous drug dealer who had become angry with him after he intervened when the drug dealer tried to attack his neighbour who was transgender. The applicant said that the drug dealer told him that if he stayed in Brazil he would take him ‘before his crime tribunal’, and kill him. He claimed that the police do not get involved in ‘these kinds of disputes’. The Tribunal was concerned about the truthfulness of this evidence as it was only introduced when the applicant appeared before the Tribunal, and it would have been expected that if it was the cause of his fears of returning to Brazil, he would have referred to it in his application. The Tribunal put these concerns to the applicant at the hearing. He said that ‘it was kind of embarrassing.’ He claimed that he did not want to be asked questions about his association with people from a drug gang and for this reason he did not tell the Department about the gangster. He said that he did not want to disclose that at that time ‘he was messing around with the wrong people, drinking a lot and not working.’ He said that people in these areas take drugs all the time, drink and party. He also referred to his general credibility now as opposed to that time, and the fact that he has many friends in Australia, and his boss could provide a reference for him.
Although it is difficult to understand why the applicant would not include this evidence in his protection application, as it is central to his claims, on balance the Tribunal is prepared to accept that he felt threatened by the drug dealer and he did not tell the Department about this as he felt embarrassed to reveal that he was associating with criminal elements. In making this finding the Tribunal notes that the applicant was unrepresented, and also that he did refer generally to his fear of crime in his application. Further, his evidence about favelas being dangerous places controlled by criminal groups who are territorial, with gangs fighting amongst themselves, does accord with country information. The Overseas Security Advisory Council (OSAC) Report states that drug gangs and militia groups dominate the favelas (ungoverned urban areas).[6] The applicant referred to the cartel as the ‘CV’ which sources also call the Red Command, and which is referenced as a powerful gang in the favelas.[7]
[6] OSAC, Brazil 2020 Crime and Safety Report, 13 May 2020, Canada: Immigration and Refugee Board of Canada, Brazil: the Red Command criminal organization (Comando Vermelho, CV), including its activities and areas of operation, membership and structure, power, networks, political connections and resources; state protection available for victims of crimes committed by the Red Command., 5 August 2015, BRA105251.E, available at: >
On balance therefore, the Tribunal accepts that the drug dealer threatened the applicant that he would kill him after he intervened in an incident with a transgender neighbour, and that other neighbours told him that the drug dealer was dangerous and might harm him.
Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?
Under s.5H(1) of the Act, a person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country.
The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that a person has a well-founded fear of persecution if:
·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned above; and
·     the real chance of persecution relates to all areas of a receiving country.
As set out above, for a person’s fear of persecution to be well-founded, there must be ‘a real chance that if the person returned to the receiving country, the person would be persecuted, involving serious harm. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b), provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.
The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50% chance. It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J.
In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it ... a fear of persecution is not well-founded if it is merely assumed or if it is mere speculation’.
Is there a real chance of serious harm for reasons of a climatic disaster?
The applicant told the Tribunal that he did not want to live in his hometown since the occurrence of a huge natural disaster in 2011. In 2011 heavy rain triggered flooding and landslides in seven counties in Brazil, and entire neighbourhoods were covered. More than 900 were killed and thousands left homeless and there was serious damage to infrastructure.[8]
[8] ENAP, Busch A and Amorim, S, The Tragedy of the highlands Serrano region in the State of Rio de Janeiro in 2011: looking for answers, 2011
The applicant has not claimed to fear further climatic disasters. The Tribunal does not accept that there is a real chance, in the sense of a ‘non-speculative chance’[9] of another climatic disaster. As stated by the court in MIEA v Guo (1997) 191 CLR 559, conjecture or surmise has no part to play in determining whether a fear is well-founded, and in this case, possible future climatic disasters are a matter for conjecture only, as opposed to there being a substantial chance of eventuation.
[9] MIEA v Guo (1997) 191 CLR 559
The applicant has also referred to the psychological impact of the disaster on him, which would make it difficult to return. The Tribunal accepts that the applicant has been emotionally impacted by the disaster but does not accept that distress or anxiety caused by this past event would amount to persecution, as there is no systematic and discriminatory conduct involved.
Furthermore, as discussed with the applicant at the Tribunal hearing, persecution feared must be for one or more of the reasons mentioned in the legislation, that is, race, religion, nationality, membership of a particular social group or political opinion.[10] That reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution. The Tribunal does not accept that persecution, if any, caused by climatic disaster would be ‘for’ one of these reasons.
[10] Section 5J(1) of the Act
The Tribunal is not satisfied therefore that there is a well-founded fear of persecution for any of the reasons set out in the legislation on the basis of climatic disaster.
Is there a real chance of serious harm because of financial difficulty?
The applicant claims to fear returning to Brazil on the basis that he would be unable to find a job and would suffer financial difficulty.
According to the BBC News, Brazil is an economic giant and one of the rising economic powers.[11] The same report states that over the past few years Brazil has made major strides in its efforts to raise millions out of poverty, and that the discovery of oil reserves could put Brazil in the top oil-exporting nations. It also has iron ore and other natural resources, highly prized by manufacturing nations. Although there is a wide gap between rich and poor, the World Bank has praised the country for progress in reducing social and economic inequality.[12]
[11] BBC News, 3 January 2019, Brazil Country Profile, BBC News, 3 January 2019, Brazil Country Profile, >
Other reports, however, refer to high unemployment and recession.[13] Those impacted by poverty live in difficult conditions. People in favelas live on cramped streets, without decent ventilation, sanitation and access to water.[14] As referred to in information provided by the applicant and numerous sources[15] Operation Carwash uncovered one of the largest corruption schemes in history, involving billions of dollars and politicians and businesses. Transparency International has said that corruption remains one of the biggest impediments to economic development in Brazil.[16]
[13] OSAC, Brazil 2020 Crime and Safety Report, 13 May 2020, Human Rights Watch, Brazil suffers its own scourge of police brutality, 3 June 2020, See for example, Guilherme France, Brazil: Overview of Corruption and anti-corruption, Transparency International, 29 January 2019
[16] Guilherme France, Brazil: Overview of Corruption and anti-corruption, Transparency International, 29 January 2019
The Tribunal has accepted that the applicant experienced difficulties finding suitable work in Brazil and acknowledges that this may be the case again when he returns, particularly given his age. However, the Tribunal is not satisfied, given the overall economic circumstances of the country, and the fact that the applicant has significant work experience and family networks in Brazil, that there is a real chance of serious harm in the form of being unable to subsist, or due to economic destitution. The applicant worked from 1994 to 2006 in [Country 1] and has worked in Australia. He has also worked [and] done volunteer work. He has [a qualification]. After living in [Country 1] and Australia he has skills in English. With these skills, and family networks, the Tribunal is not satisfied that he would be financially destitute.
Furthermore, fear of harm by way of economic difficulty does not amount to persecution for one of the reasons set out in the legislation, race, religion, nationality, membership of a particular social group or political opinion.
The Tribunal is not satisfied therefore that there is a real chance of serious harm by way of being unable to subsist, or financial difficulty were the applicant to return to Brazil in the reasonably foreseeable future.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation on the basis of financial difficulty.
Is there a real chance of serious harm for reasons of political opinion?
In his Department application, the applicant stated that he did not feel confident returning to Brazil due to political turmoil with politicians embroiled in a fight for power. He referred to opposition against the president Dilma Roussef and ‘political persecution’. When asked about this at the Departmental interview, he said that his political opinion does not accord with the status quo and his party had lost in the elections. He said that he had not been harmed for his political opinion.
The applicant confirmed to the Tribunal that he had not been involved in political groups or activities. However he had once worked for an organisation that was disbanded by the new government.
There has been a change of government since the applicant was in the country. Retired army officer Jair Bolsonaro won a decisive victory over the centre-left Workers Party in the October 2018 presidential election and took office in January 2019. He is a member of the Social Liberal Party, an anti-establishment group that combines social conservatism and pro-market policies. He is deeply polarising and has defended the earlier military dictatorship. After his win he assured voters he would defend democracy and uphold the Constitution. In the name of cleansing Brazil of corruption, dozens of politicians from mainstream parties have been jailed.[17] According to Human Rights Watch he is pro-torture, openly intolerant, misogynistic and homophobic. Human Rights Watch report that he has restricted the participation of nongovernmental organisations in public policy, harassed the independent media, restricted access to government information and put forward measures that would have led to greater impunity for police abuses.[18]
[17] BBC News, 3 January 2019, Brazil Country Profile, Human Rights Watch, One year of ruinous anti-rights policies in Brazil, 15 January 2020, >
The Tribunal is not satisfied that the applicant would be targeted by the authorities or others for his political opinion as the sources referred to above indicate that it is politicians and activists who have been targeted. The applicant has confirmed that he has not been involved in political groups or activities in Brazil or Australia, and the Tribunal is satisfied therefore that he would not engage with political affairs if he returned. He has also confirmed that he was not harmed for reasons of his political opinion while living in Brazil.

The Tribunal is not satisfied therefore that there is a real chance of serious harm for reasons of the applicant’s political opinion.
In regard to political instability in the country generally, the Tribunal is not satisfied that the applicant would be targeted for harm or in fact that there is a real chance in the sense of a non-speculative chance,[19] of serious harm. The Tribunal is not satisfied that persecution, if any, would involve systematic or discriminatory conduct.
[19] MIEA v Guo (1997) 191 CLR 559
The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for reasons of political opinion.
Is there a real chance of serious harm from the drug dealer?
The applicant claims to fear harm from a drug dealer who was angry with him for intervening when he was trying to attack a neighbour.
As discussed earlier, the Tribunal had concerns about the veracity of his evidence about this incident, given how late it was presented as evidence. However, as set out earlier, taking the reasonable approach to evidence, the Tribunal has accepted the applicant did intervene and neighbours said the drug dealer would locate and harm him.
The Tribunal is not satisfied that there is a real chance of serious harm from this drug dealer in the reasonably foreseeable future. The applicant and the drug dealer had only one interaction, and this took place six years ago. The applicant was not harmed and did not see the drug dealer after the incident. Although the applicant said that he was living somewhere else in Rio de Janeiro, if the drug dealer wished to seek him out it is likely he would have done so. This was acknowledged by the applicant who said that his friend told him that if the dealer wanted to get him he could have done so, and he described him as ‘powerful’. Further, although he said that the drug dealer saw his face, and took a photograph, so much time has passed since then it is unlikely that this dealer would continue to have any interest in the applicant after what was a one-off intervention in a dispute. The Tribunal is not satisfied therefore that there is a real chance, in the sense of a substantial or non-remote chance[20] of real harm were the applicant to return to Brazil in the reasonably foreseeable future.
[20] Chan v MIEA (1989) 169 CLR 379
Furthermore, persecution feared must be for one or more of the reasons mentioned in s.5J(1)(a) – race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is not satisfied that the harm feared from the drug dealer is for one of those reasons, rather it is for the reason of revenge due to a personal dispute.
The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation on the basis of the incident with the drug dealer.
Is there a real chance of serious harm for reasons of crime generally?
The US Department of State has assessed Rio De Janeiro as a place where violent crime is frequent – including murder, armed robbery, carjacking, assault and kidnapping, with all neighbourhoods affected.[21] The Tribunal accepts that people have left the country for this reason, as claimed in articles provided by the applicant. The applicant claimed that the problems are exacerbated by police violence in the area. In the favelas police killed 606 people in the first four months of 2020.[22] Nationwide police killed more than 30,000 in last 10 years.[23] Human Rights Watch says that there has been a drop in murder rates in recent years, but violence and serious crime remain a frightening problem. The use of lethal force by police in poor communities, they submit, makes crime-fighting harder. When police break the law, they promote a cycle of violence including the killing of more than 300 police officers each year.[24]
[21] OSAC, Brazil 2020 Crime and Safety Report, 13 May 2020, Human Rights Watch, Brazil suffers its own scourge of police brutality, 3 June 2020, Human Rights Watch, Brazil suffers its own scourge of police brutality, 3 June 2020, Human Rights Watch, One year of ruinous anti-rights policies in Brazil, 15 January 2020, Although there is violence and crime in the favelas, the Tribunal notes that the applicant could return to live with family members rather than in the favelas, or in other parts of Rio de Janeiro. Further, as discussed with the applicant at hearing, well-founded fear of persecution must be for one of the reasons set out in the legislation and crime is random and would not be targeted at the applicant for one of these reasons.
101. Additionally, under the legislation, persecution must involve systematic and discriminatory conduct.[25] This is generally regarded by the courts as conduct which is deliberate rather than random, and applied discriminatorily for one of the reasons set out in the legislation.[26] The Tribunal is not satisfied that if the applicant were to be the victim of crime, that this would be otherwise than random, or that he would be targeted for one of the reasons set out in the legislation.
[25] ss.5J(4)(c) of the Act
[26] MIMA v Haji Ibrahim (2000) 204 CLR 1
102. The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation on the basis of general crime.
Is there a real chance of serious harm from the risk of contracting coronavirus?
103. The applicant mentioned that he also fears returning to Brazil because of the prevalence of COVID-19 in Brazil and the nonchalant attitude of President Bolsonaro towards the pandemic. The country has been hit particularly hard by the virus. There are currently 880,286 cases in Brazil, which is high by world standards.[27] The President has been dismissive of the seriousness of the disease and of taking protective measures. An article in Reuters referred to a report by Human Rights Watch about the sabotaging of COVID-19 protective measures by the President.[28]
[27]Worldometer, Reuters, Brazil's Bolsonaro sabotaged anti-COVID-19 efforts, says Human Rights Watch, 14 January 2021, There have been in total 9 million cases of COVID-19 in Brazil[29], out of a population of 213 million[30]. Out of the current cases, 99% are mild.[31] Out of the 9 million, 97% recovered.[32] The country is currently rolling out AstraZeneca and Sinovac vaccines in all 27 states.[33] A recent article in the Brazilian Report states that the government intends to purchase 10 million doses of the Sputnik vaccine.[34] According to the Human Rights Watch report, the Supreme Court, Congress and other institutions, have stepped up to protect Brazilians and blocked some of Bolsonaro’s most damaging policies.[35] The most recent UK travel advice refers to restrictions in Brazil on international flights, localised lockdowns and the mandatory wearing of masks.[36]
[29] Worldometer, Worldometer, Worldometer, Worldometer, BBC News, Covid: Brazil approves and rolls out AstraZeneca and Sinovac vaccines, 18 January 2021
[34] Brazilian Report, 5 February 2021, Reuters, Brazil's Bolsonaro sabotaged anti-COVID-19 efforts, says Human Rights Watch, 14 January 2021, UK Travel advice, Brazil, Brazil travel advice - GOV.UK ( In order to meet the refugee criteria, there must be a well-founded fear of persecution for one of the reasons set out in the legislation. The Tribunal is not satisfied that if the applicant were to contract the virus, it would be persecution for one of the reasons set out in the legislation, rather it would be random and non-deliberate. The Tribunal is not satisfied that the policies and actions or inactions of the government in regard to COVID-19 amount to persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. While the President has downplayed the seriousness of the disease and may have obstructed progress in prevention, there are extensive measures being taken across the country to prevent outbreaks, including vaccination, and the motivation appears to be public health and safety. Given the planned vaccination programs and the initiatives of the government, court and congress, despite the President’s statements, the Tribunal is not satisfied that conduct of the government amounts to systematic and discriminatory conduct motivated to harm, for one of the reasons set out in the legislation.
106. Furthermore, the statistics, although high by world standards, do not indicate that there is a real chance of serious harm from coronavirus if the applicant returned to Brazil in the reasonably foreseeable future. There are currently 880,286 cases but 99% are mild. While case numbers peaked on 24 January 2021, since then there has been a slow decline.[37] This does not indicate a substantial chance of contracting the disease and suffering serious symptoms, given the total population size, and government preventative initiatives, including vaccines. The Tribunal is not satisfied therefore that there is a real chance of serious harm, in the sense of a substantial chance[38] were the applicant to return to Brazil in the reasonably foreseeable future.
[37] Worldometer, MIEA v Guo (1997) 191 CLR 559
107. The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation on the basis of contracting coronavirus in Brazil.
Does the applicant meet the complementary protection criteria?
108. If a person is found not to meet the refugee criterion he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: (‘the complementary protection criterion’).
109. ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
110. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
111. For reasons set out earlier, the Tribunal is not satisfied that there is a real chance of serious harm on the basis of climatic disaster, psychological harm caused by the landslide, financial destitution, political opinion, interactions with the drug dealer, crime generally or contracting coronavirus. For the same reasons, on the basis of MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation, were the applicant to be removed from Australia to Brazi.
112. In regard to climatic disaster, the Tribunal is not satisfied that there is a real risk, in the sense of a non-speculative[39] risk of significant harm. While the applicant may suffer psychological impact from returning to the scene of the 2011 landslide, the Tribunal is not satisfied that this kind of harm that would amount to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment, or any of the other kinds of significant harm, as there would be no intention by any party to harm.
[39] MIEA v Guo (1997) 191 CLR 559
113. In regard to financial difficulties, crime generally and from the drug dealer, political suppression and coronavirus, the Tribunal is not satisfied that there is a real risk of significant harm, for reasons set out earlier in this decision in relation to real chance.
114. Furthermore, there are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These include where the real risk is one faced by the population of the country generally and is not faced by the applicant personally. In relation to crime and coronavirus, the Tribunal is satisfied that the real risk, if any, is one faced by the population of the country generally and not faced by the applicant personally.
115. The Tribunal is not satisfied therefore that there are substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Brazil there is a real risk of significant harm.
CONCLUDING PARAGRAPHS
116. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
117. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
118. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
119. The Tribunal affirms the decision not to grant the applicant a protection visa.
Jane Marquard
Member

ATTACHMENT A - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
ATTACHMENT B – LIST OF DOCUMENTS
1.    Screenshot of medical examination: grading and examiner declaration, dated 23 June 2015.
2.    Copy of article, ENAP, Busch, A and Amorim, S, The Tragedy of the highlands Serrano region in the State of Rio de Janeiro in 2011: looking for answers, 201.1.
3.    Untranslated article in Portuguese, dated 2017. The applicant described this document as ‘Violence Atlas 2017: A report showing the numbers of violence in Brazil’.
4.    Copy of article, New York Times, Brazil’s Military is put in charge of security in Rio de Janeiro, 18 February 2018, regarding escalating violence in Rio de Janeiro and military taking control of security.
5.    TOEFL ITP Score Report, dated 5 December 2015.
6.    Documents relating to social security credits in the United States, memorandum dated 6 May 2017 and statement dated 20 February 2018.
7.    Copy of article, WSJ News, Why Brazil’s best and brightest are fleeing in thousands, 3 August 2018, regarding wealthy Brazilians fleeing the country due to gun violence and pessimism about the political and economic future of Brazil.
8.    Copy of article, New York Times, Grasping Rio’s Beauty and Tragedy, 28 January 2018 regarding the miserable life of many people in the favelas in Rio de Janeiro.
9.    Copy of article, Severich, L, The Fall of Petrobas and its impact on the Brazilian economy, University of Arkansas Honours Thesis, undated.
10. Copy of medical document (HAP).
11. Copy of English proficiency test.
12. Copy of Birth Certificate (untranslated).
Key Legal Topics
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Immigration

Administrative Law

Statutory Interpretation
Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction
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Citations
1711795 (Refugee) [2020] AATA 6040

Cases Citing This Decision
0

Cases Cited
10

Statutory Material Cited
2

Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167

ABT16 v Minister for Home Affairs [2019] FCA 836

[2020] AATA 6040

17 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction