1714037 (Refugee)
[2021] AATA 883
•8 March 2021
1714037 (Refugee) [2021] AATA 883 (8 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1714037
COUNTRY OF REFERENCE: Brazil
MEMBER:Jane Marquard
DATE:8 March 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 08 March 2021 at 8:26am
CATCHWORDS
REFUGEE – protection visa – Brazil – political opinion – Partido dos Trabalhadores (Workers Party) worker – particular social group – homeless people – robbery – physical attacks – fear of killing – accommodation – employment – access to health services – return visits to Brazil – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
AGA16 v MIBP [2018] FCA 628
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
EZC18 v MHA [2019] FCA 2142
EZC18 v MHA [2019] FCCA 464
GCLV v MICMSMA [2020] FCCA 270
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
MZAAJ V MIBP [2015] FCA 478
MZAAJ V MIBP [2015] FCCA
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
SZDCD v MIBP [2019] FCA 326
SZDSD v Minister for Immigration and Anor [2018] FCCA 1029
SZSPE v MIBP [2013] FCCA 1989
SZTAL v MIBP (2016) 243 FCR 556Any 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 dependants.
Migration & Refugee Division
APPLICANT:
CASE NUMBER:
HOME AFFAIRS REFERENCE(S)
STATEMENT OF DECISION AND REASONS
BACKGROUND
1. The applicant is [an age]-year-old man from Brazil.
2. He arrived in Australia [in] June 2014 on a [temporary] visa. He later applied for a Temporary Work (Skilled) visa (Subclass 457) which was not granted.
3. He applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 6 May 2016. A delegate of the Minister for Home Affairs refused to grant the visa on 5 June 2017.
4. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
SUMMARY OF DECISION
5. The Tribunal has decided to affirm the decision under review.
6. The Tribunal refers the matter to the Minister to be considered under s.417 of the Act.
SUMMARY OF LAW
7. The Tribunal must determine whether the applicant meets the refugee criteria or complementary protection criteria set out in the Act.
8. 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). 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
9. 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.
10. 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.
11. 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
12. 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
13. 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 of Home Affairs (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.’
Establishing the elements of the claim
14. It is well-established that 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).
15. 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 homeless. He did not have resources to research and provide written evidence. In fairness to the applicant, the Tribunal has taken an expansive view in ascertaining whether the elements are established.
CLAIMS AND EVIDENCE
16. The Tribunal has considered evidence provided to the Department and to this Tribunal as well as independent sources about Brazil.
Evidence to the Department
17. The applicant provided evidence in his application forms, supporting documents and at an interview with a Departmental delegate on 17 May 2017. A summary of his evidence is set out below.
Personal particulars and background
18. The applicant is [an age]-year-old citizen of Brazil. He was born in Curitiba, Parana, Brazil in [year].
19. His father, whom he hardly knew, passed away in 2006. His father had [other] children. At the time of the Department application he was in contact with his [sibling] and [another sibling] who was sick with [a medical condition]. His mother and grandmother raised him, but both have now passed away and he has no close relatives in Brazil. His mother died in [year].
20. From [a date in] 1987 he studied in [Country 1]. In [1989] he worked in [Country 2] and then visited Rio de Janeiro. From 1989 to 1990 he studied in [Country 1] and qualified with a [specified qualification]. During 1990 he worked in [Country 2], [Country 3] and [Country 1]. He visited Rio de Janeiro in [1992] and then returned to [Country 1] to [work]. He returned to Rio de Janeiro [in] 1994 and visited [Country 4]. [In] 1995 he went to Rio de Janeiro again and then [back to Country 4]. He lived in Rio De Janeiro until 1996.
Claims of harm in Brazil
21. He said that he was not officially a member, but he worked for the Partido dos Trabalhadores (Workers Party) in Brazil from the age of 18 years (so around [year]). His biological father was involved with this party.
22. He was a 'hacktivist' who from 1992stole information from the databases of other parties to give to the Workers Party. He obtained information from [a named party] prior to a presidential election.
23. One Sunday in [1995] he was at home with his mother and grandmother when four unknown men carrying guns stormed in and put guns to his head and in his mouth. They burnt his computer cable, found a vault which was [hidden], interrogated him while he was tied to a chair, [and caused him injuries]. He said that they were looking for things and took computer discs. He did not know who the intruders were but thinks they could have been linked to the [party] who lost the election. They fled upon hearing sirens in the street and his mother untied him.
24. He said in his application forms that he was abused in front of his family as he refused to provide the information.
Travel after 1996
25. He went to [Country 5] in [1995] for work. He was granted tourist visas to Australia in 1996 and 1998 but did not visit. He visited Rio de Janeiro [in] 1997. He travelled to [Country 5] for work [in] 1998. He visited Rio de Janeiro again [in] 1999. He travelled to [Country 5] for work [in] 2000. He studied for a [different qualification] from [between specified years] in [Country 5], then withdrew from the course. He returned to Brazil in [2001] as his grandmother had [a medical condition] and he stayed until the end of that year and then returned to [Country 5]. He visited [other specified countries in specified years], all for work.
26. He returned again in [2002] to Brazil when his mother fell ill and he stayed until she died in 2005. He was not always at home but stayed [at various locations] at Rio de Janeiro and moved about.
27. From [2005] to 2006 he worked at [an Industry 1] business in Rio de Janeiro.
28. In 2006 he again travelled to [Country 5] for work. [In]2007 he worked at [an Industry 1] business in [Country 5].
29. From [2009] to [2013] he was in [Country 5]. In 2009 he and his partner bought [an Occupation 1] business in [a Country 5 region]. Three months later they realised it was a mistake and she left him.
30. In [2011] he was refused a partner visa to [Country 5]. He withdrew his application after separating from his partner.
31. From [2013] to [2014] he was in [a specified location in Country 5].
32. In [2013] he was refused a business visa to [Country 5].
Fears on return
33. He claimed that he is likely to be chased, abused, and murdered as members of the Workers Party are still looking for him. He claims that the authorities cannot protect him because he fears harm from the party that now runs the country.
34. He said that he has no relatives he could return to live with and no money. He has no right of return to [Country 5] where his company with its workshop and equipment still exist. He said that he did not apply for protection in [Country 5] as he had ‘put it all behind him’. He said that he could not survive in Brazil.
Australia
35. The applicant first arrived in Australia [in] May 2014 as the holder of a [visitor visa], returning to [Country 5] the next day. While offshore, the applicant was granted a [temporary visa] and re-entered Australia [in] June 2014. He lodged an application for a Temporary Work (Skilled) visa (Subclass 457) on 26 September 2014 in relation to his [Industry 1] skills, working as general manager for [a named agency]. [In] December 2014 the applicant’s prospective employer contacted the Department to withdraw the application. This was refused in June 2015. He lodged an application for review to this Tribunal, but the Tribunal differently constituted found that it had no jurisdiction.
36. The applicant stated in his application that he is not a citizen of [Country 1] and has never applied to obtain citizenship of any other country. He stated that the information on the Department’s file was ‘provided by mistake’ by his previous migration agent, who had ceased to represent the applicant on 28 November 2014.
37. He lodged an application for a protection visa on 6 May 2016.
38. He told the Department at interview that he was currently of no fixed place of abode, had no income, rode trains three nights a week and has difficulty in attending to his hygiene needs. He said that he had been assaulted on the trains twice.
39. On 5 June 2017 a delegate of the Minister refused his protection visa application.
Documents submitted to the Department
40. The applicant submitted the following documents to the Department in support of his visa application:
· Copy and translation of his birth certificate, issued on [date].
· Copy of pages from the applicant’s expired passport, with visitor visas for [Country 5], issued in [specified years].
· Copy of work permits for [Country 5], issued in [specified years].
· Copy of the applicant’s current Brazilian passport, issued in [Australia] [in] 2016.
· Letter from the Consulate General of [Country 1] in [Australia], dated 26 July 2016, stating that the applicant is not [a Country 1] citizen.
· An ID card belonging to the applicant’s [mother].
· Certificate in relation to the applicant’s military service (untranslated).
· Death certificate in relation to the applicant’s mother (untranslated).
· A document from [a named] Bank, confirming the applicant’s Australian bank account details.
· An ID card belonging to the applicant’s [grandmother] (untranslated).
· An untranslated certificate, featuring the name of the applicant’s mother.
· An untranslated certificate, featuring the name of the applicant’s father.
· The applicant’s ‘electoral enrolment certificate’ and ID card (untranslated).
· A passport belonging to the applicant’s mother (untranslated).
· A Statutory Declaration declared by the applicant on 18 July 2016 relating to his Subclass 457 visa.
· Copy of the applicant’s Subclass 457 visa application form.
· Copy of a letter submitted by the applicant to the Department on 28 November 2014. The letter states that the applicant withdraws his authorisation for migration agent, [named], to represent him in relation to his application, as her conduct was ‘far from professional’.
· Certified copy of the applicant’s current passport.
Evidence to the Tribunal
41. The applicant provided evidence to the Tribunal in a hearing on 11 December 2020. A summary of his evidence is set out below.
Childhood, study and work experience
42. The applicant confirmed that he was born in [year] in Curtiba, Parana, a state south of Rio De Janeiro. His family moved to Rio de Janeiro when he was around six years old.
43. His father was married to someone else and had an extramarital affair with his mother. His father never lived with his mother and ‘abandoned her’. He was [in specified professions]. The applicant saw his father twice in his life. His father did not provide financial support to his family.
44. His mother worked as [an occupation]. His grandmother was ‘the real mother’. She passed away in 2001. She also adopted a [child], who died in 2018. When they were growing up his grandmother, mother, [sibling] and himself resided in a house together. He had [a relative] who passed away in 2019. She did not live with them. She had [children], but he has lost contact with them. He does not know of any further extended family. His father married twice and had [children], but he does not know them.
45. The applicant went to primary and secondary school in Rio de Janeiro. When he finished school he studied [a subject] at university, in around [year range]. He also wanted to study physics.
46. He participated in a lot of sport, and at [age] he became a professional [sportsman]. As a professional [sportsman] he travelled widely.
47. In 1987 he moved to Europe to be able to participate in competitions in Europe. There were [number] events a month. He also studied [Occupation 2] in [Country 1]. In [1989] he went to [Country 2] to run a branch of [Business 1], [an Industry 1] company. He worked for this company for 25 years as [an equipment] designer and [sportsman]. At the time he was trying to make the [national] team.
48. Later he visited Rio de Janeiro to visit his family and prepare his papers for residing in [Country 2]. During 1990 he worked in [Country 2], [Country 3] and [Country 1]. [Business 1] had branches ‘everywhere’. He was a designer and often [competed] in various places around Europe. He used [Country 2] as a base.
49. He visited Rio de Janeiro in [1992] and then returned to [Country 1] to [work]. This was after [an international event]. While there he had a short relationship with an ex- girlfriend. It was a short visit. The relationship did not work. He then went back to [Country 2].
50. He returned to Rio de Janeiro [in] 1994. He [worked] at [an agency] for 18 months and set up [an Occupation 2 site]. He wrote a paper which was selected for a presentation and so went to [Country 4] with his [work] in July of that year. The [agency] later closed his [site]. After that he did a bit of [work] on [Occupation 2]. He lived in Rio for three years with his mother. He also travelled to [Country 4] for [Occupation 2] conferences related to [a particular field]. He was still [competing], but not professionally at this time, as there was not enough professional activity. He still entered national championships but did not make money. He worked for [various] agencies and similar organisations doing [Occupation 2].
Political involvement
51. The applicant said that he was never affiliated with any political party or group. However he was ‘involved in politics as a member of the public. In the 1960’s the military ruled the country. Everyone had views including me. I attended several political rallies. My father was involved with politics. In the 1970s my mother was burnt in a rally. I was brought up to be interested in politics. Lecturers would talk about politics and sociology.’
52. He said that the rallies he attended in the 1970’s were organised by political activists – people who had been in exile or persecuted. Before the 1970’s the army would suppress these rallies. The activists were members of the left party, the Workers Party, and the right party, Brazil Democratic Movement. During the 1970s and 1980s there were just two parties but now there are many more.
53. He supported the Workers Party while at university in [year range]. He sometimes listened to speeches at rallies. He also made T-shirts, banners, flyers and posters for the Workers Party. He did these things of his own accord, rather than having an official position or being part of a group. Sometimes a candidate or person involved would ask people for support.
54. At the time, the press was controlled by the right. In 1992 he started ‘hacktivist activity’ and this continued until 1995. The United Nations held an ECO conference in 1992. There were many people coming into Rio de Janeiro from all over the world. The applicant worked for [an agency] at the time called [name]. He was hired to set up a network of computers and through this, became involved with hacktivism. At the time many people were opposed to what was happening in the world climatically, particularly in Brazil. There was a system to connect networks called ‘novel’. He had high level access to a number of servers, to government, banks, World Banks and the UN. There were many non-governmental organisations in attendance at the conference. He was asked by a [person] working for the Workers Party to look into the servers to get information. He had a lot of expertise in computers. He could gain access through servers such as UNIX and he was also familiar with others such as basic, sempler and cobalt. This [person] asked him to look into the databases of political parties. He would go into a library and hack into databases. He could hack into [specified information sources]. The [person] would use the information to give exiled activists new identities. He was being paid in cash by the [person] who was working for the Workers Party. He participated between 1993 and 1995.
55. Asked what information he passed on, he said it was mainly information about births or deaths and strategies of organisations or other political parties. He did not exchange documents. It was easy to get this information. He said that later the Party were hacking into bank accounts for financial institutions and ‘this was when he got out’. He had political convictions and hacking was a source of income for him. He did think he was ‘doing something for the country’ but with hindsight he regrets it.
56. In 1994 there was an election in Brazil. The Workers Party got into power. President Lula was in power for 12 years and is now in gaol. The applicant said that there ‘is now a fight between the extreme right wing and the court’. He said that there has been no decent political party since the military left. He said that the military did ‘bad things’ and repressed opposition. He used to see bodies in the water while swimming in the water and [when travelling]. However there was order and stability at that time. His mother was well paid. They had housing and expensive toys. He went to a private school and health services were good. During the rule of the military there was economic growth.
57. He does not remember who got into power in 1994. He said that ‘there was Lula and before him Cardosa and before him the Generals’. He said that Cardosa was well educated. Some people said he was the best President, but he did ‘a lot of compromising’. He said that Lula was from the left, and very corrupt, and was followed by Rouseff, who was also corrupt and was a puppet for Lula. The applicant said that from 1996 when he went to [Country 5] he shut out what was happening in Brazil, and tried to live a new life. He had a prosperous life in [Country 5] and only went back to Rio de Janeiro to visit his family members when they were unwell.
58. He said that there was a lot of crime and armed robberies at the time, when people looked for jewellery and money. He said that one Sunday in [1995] he was at home with his mother and grandmother. He was in the kitchen cooking and his mother, grandmother and [sibling] were in the lounge waiting for dinner. There was a knock at the door and ‘the next minute there was a gun in his face’. He said that four masked men stormed in and went into various rooms. There was a doorman who was not on site. He does not know how they got into the building. He had a three-bedroom place, one room for studios and another a bedroom. The intruders threw water on the computer and took away his hard drives. He thought that they were people working for the Workers Party. He had left the party by this stage, and they were worried that he had evidence such as IP addresses, files and floppy discs. He said that they were only interested in files. They did not touch other valuables. He was sitting in front of his family with a gun on his head. His family were watching and his mother and grandmother were panicking. As they were about to go out, there was a [hidden] vault. He did not know the number. They put a gun in his mouth, asking him what the number was. They then [caused him injuries] to get the vault number. The applicant said that they did not ask him anything else and there was no other communication with them.
59. He said that they all heard sirens outside then and the intruders left. The police could have been going somewhere else and did not come to their house.
60. The applicant showed his [injuries] to the Tribunal. It was clear that [he suffered disfigurement].
61. He said that did not call the police because he was worried about police finding about the illegal hacking.
Travel to [Country 5]
62. The applicant said that for a few months after the home invasion, he felt panicked and stayed home. He did some work for [Occupation 1] agencies and [related] firms, working from home. He said that he went to [Country 5] in 1996 because of fears relating to the home invasion. In 1995 [he] got an invitation to work with [an international] team in [Country 5] for [an international event].
63. He lived in [Country 5] and was working for [an employer] doing [Occupation 2]. He returned to Rio de Janeiro in [1997] as his grandmother was unwell. He went back to [Country 5] for work [in] 1998. He visited Rio de Janeiro again [in] 1999and then returned to [Country 5] for work [in] 2000.
64. He returned to Brazil in [2001] as his grandmother had [a medical condition] and he stayed until the end of that year and then returned to [Country 5]. By this time he had a business with a partner in [Country 5] and things were going well. He did not regret going back to see his grandmother. He had the trauma and fear of living in Rio de Janeiro, but he was living with his mother and visiting his grandmother every day. There was a strike and he took her food. After she died he went to [Country 4], with the help of a friend as he felt lost when his grandmother died, as she was ‘everything to him’ as his mother had always been unstable emotionally. His friend organised a [sport] season. He visited [specified countries] in [2002], all for work.
65. He returned to Brazil in [2002] when his mother fell ill with [her medical condition] and he stayed there until she died in 2005. She was in hospital for two and a half years, then she was discharged, and he found her a place. He could not find work sometimes and stayed [at various locations]. He went to the hospital each day. He walked sometimes 15kms a day. From [2005] to 2006 he worked at [an Industry 1] business in Rio de Janeiro.
66. He had left behind his [Occupation 2] business and partner in [Country 5] and did some of the work from Brazil. He then found out that his partner in [Country 5] was seeing someone else so that relationship ended.
67. In 2006 after his mother’s death, he left Brazil and went back to his business in [Country 5]. He lived there for over eight years. [During] 2007 he worked at [an Industry 1] business in [Country 5]. He also was a contractor for software companies.
68. He said that he then met another partner. At this stage he was doing well and had saved some money. She was a leading [Occupation 3]. They bought a [vehicle] together. She was on anti-depressants but went off her medication and her depression became severe and she was kicked out of her job and moved in with him. They found a business in [a named region] and moved there. He had to renew his visa and was going to apply for a business visa. However the business was a ‘dead horse’, and it had been a mistake to buy it. They bought the business in July. All the [potential clients] in [a large area] come to the [region] [on a seasonal basis]. They arrived in October, and they had five people working for them, however, no [clients] arrived. Three months later they realised it was a mistake and his partner left him. They had put [investment amount] into the business. Her lawyer contacted immigration and he was served with an order to leave the country in seven days and leave her the business. He had put [about a third of the total investment amount] into the business. A Member of Parliament intervened on his behalf and he was granted a new visa. He stayed working with the business. At the end of 2011 he had lots of work, paid the debt, and had [number] people working on the contract. He bought out his partner and then they got back together. From [2013] to [2014] he was in [a named place in Country 5]. He said that from 2012 to 2014 he had a tough time. He got a serious [infection] which made him ill for three months. He got in touch with the [Industry 1] companies in Europe as he needed the work. They said there was a branch in Australia looking for a general manager. He was put in touch with the owner. He was put on a flight, and got a ticket. He went to see the business and then flew back to [Country 5] with an offer. He said that he had stock such as [equipment] in [Country 5]. The owner of the [Industry 1] company in Sydney said he would buy his [Country 5] company. He wanted the applicant to run his company in Sydney for the Southern Hemisphere. The applicant was granted a short-term business visa and his employer said he would sponsor him for a Section 457 visa. He was in Sydney on the visa for three months, then in September he applied for a Section 457 visa. He said that he was given a house, internet connection and a car in Sydney.
69. The applicant said that after he had started work, his Australian employer lost the franchise and ‘cut him off’. His employer was an avid [sportsman] and has [many Industry 1] businesses which run the [operations], but the business is managed in [a named country]. The applicant said that he suspected that he was money laundering. The company would make the [Industry 1 equipment] but he was not focused on selling [them]. He said a few suppliers warned him when he joined.
70. He said that he was paid for one more month then in 2015 he began to live off savings. He went to see an immigration adviser. He was told that he could transfer his business from [Country 5] to Australia. He proceeded with this and was told by the Department to lodge the relevant papers. In September 2014 he had lodged an application for a Temporary Work (Short Stay Activity) Subclass 457 visa in relation to his [Industry 1] skills. [In] December 2014 the applicant’s prospective employer contacted the Department to withdraw the application. He found this out when about to lodge his papers. His application was refused in June 2015. He lodged an application for review to this Tribunal, but the Tribunal differently constituted found that it had no jurisdiction.
71. He said that he realises now that he made a mistake in coming to Australia without a solid contract. It was never his intention to apply for protection on the basis of trauma in Brazil but then he exhausted all avenues. He did not have six months on his passport to travel, and he wanted to go to [Country 5] so he was granted a bridging visa. He went to the Consulate and got a passport in two days. He said that an officer from the Department of Home Affairs told him that he would regret his decision to apply for a protection visa and took away his right to work and study.
72. The applicant said that because of the failed business his plan was to return to [Country 5] to his business. However he was assaulted on a train in Sydney, and his backpack, passport, wallet and telephone were taken and he was left with nothing. He receives Status Resolution Support Services (SRSS) payments from the Department, but he said that it is very little. [In] January 2016 he became homeless. He said that since then he has had 1769 days in the streets and sleeping on trains. Shelters such as Matthew Talbot are usually available for one night only or require payment. He said that he has a storage unit so does not have to carry things. He has been robbed twice and assaulted three times. He has had a claim for compensation and was given a year of counselling. Asked if he has approached Red Cross or any other not-for-profit organisations, he said that he has. He has had many infections. He has had a counsellor at [Agency 1]. [Another agency] has organised his SRSS payments, so he gets $251 a week. He spends $25 a day. He cannot afford toothpaste and has lost teeth.
73. He said that he had stored his assets in a shed in [Country 5] and continued to pay rent. When he lost everything the owner of the shed took everything and got rid of the assets, because the applicant had stopped paying rent. He had [vehicles] in [Country 5] but he has lost everything and could not afford a lawyer to assist him.
74. He said that he has suffered the same level of trauma in Australia as he did in Brazil in 1995. He said that he has skills that would be useful in Australia, for example he could work in cyber security in regard to China. He has had offers of jobs and study but has been unable to accept because of his visa conditions. He said that he does not drink, smoke or take drugs. He studies at libraries doing [subjects]. He has been offered an opportunity to study for a PhD once he gets study rights on his visa. People are impressed with his resume, but he cannot get a job due to his visa conditions. He is doing well with his diet and has dropped his sugar level. He goes to counselling twice a week and his [Counsellor A] calls him twice a week.
75. In June 2015 he lodged his protection visa application. He said that although he fears persecution in Brazil, he did not apply for asylum when living in [Country 5] for over eight years or in Australia after arrival, as he tried to put his history behind him and rely on his talent and ability to work and prosper in a different country. He said that he had looked after himself and was independent.
76. He said that although he was able to return to Rio de Janeiro many times after the home invasion without repercussion, including living there from 2002 to 2005 it would be different if had to return to Brazil now, because of his ‘current context’. When he returned he had money and was healthy. He had houses for himself and his mother. The local currency was equal to the US dollar. If he returns to Brazil now, he will have no money, no devices, basic clothing and would be unable to afford housing. He said that he can cope with poverty but he is concerned about violence due to his current health conditions. He would not be able to hide and would be on the streets. He is more noticeable as he is white as he is of [Country 1] descent, and violence, guns and carjackings are normal on the streets of Rio de Janeiro.
Fears on return
77. The applicant discussed with the Tribunal his fears about returning to Brazil. He said that he fears criminals associated with the home invasion, notwithstanding that it took place so long ago.
78. He said that he also fears being unable to get employment at his age and with his health conditions. He has Type 2 diabetes. He also has a serious leg infection, high blood pressure and gets chest pain. He is now going to a diabetic clinic and is getting medication and is also seeing a cardiologist. He is getting better. However, his leg has caused significant pain and lack of mobility. Currently he cannot stand for more than two to three hours. The counsellor from [Agency 1] has organised for him to attend [named service].
79. The applicant told the Tribunal that he has no resources or contacts in Brazil. He fears being unable to subsist or being forced to resort to hacking, which would lead to harm. He has no relatives he could return to live with and no money. The Tribunal asked him if could utilise his skills in designing [Industry 1 equipment] and use contacts and work in these areas. He said that there is a major health crisis and unemployment is high. He said that in Brazil, as well as Australian and [Country 5] there are very few jobs [in Occupation 2]. Companies look for young people. He said that the pension system is almost non-existent in Brazil unless you have worked for 15 years for a company. He said that he does have offers to work in Europe [in Industry 1] but he cannot afford to go. He said that through his [Industry 1 and other] skills he has been invited by [a named university] to do a PhD in [subject]. He has been described as gifted. He said that for this reason he is sure he must not end his life, even though he ‘has felt it’. He said that he does believe in the justice system of this country.
80. He said that arriving in Brazil with no money would be difficult and he will end up on the streets where there is a great deal of violence, prevalence of COVID-19, and no treatment. He said that hospitals are not taking people because of the COVID-.19 pandemic and he will not have the ability to survive.
81. He said that the authorities cannot protect him as he fears harm from the party that now runs the country, the Alliance for Brazil, a new party launched by Bolsonaro. He said that homeless people are being executed in the streets.
82. The applicant said that even with all his problems, he is proud of Australia’s response to the COVID-19 pandemic and is safer than he would be elsewhere. He still feels lucky. He said that he has experience of the health system in Brazil as three family members were ill. He said that it is under-resourced, subject to strikes, and he would not be able to access public health like he can in Australia.
83. The applicant said that the only thing he has left is his resilience and his intelligence. He feels that he could do something positive for Australia if he could gain the right to live in a decent way. He would rather die than live back in Brazil. He chose to not ever live there again. He believes he can recreate himself elsewhere. He feels that if he went to [Country 1] and lived there for six months he could get a job and a pension.
84. Asked if he could live somewhere else, rather than Rio de Janeiro if he feared harm there, he said that it would be easier in a city as he would be arriving with nothing. If he went to rural areas, there would be no jobs at all.
Report of [Agency 1] dated 10 December 2020
85. [Counsellor A], a Counsellor at [Agency 1], said that he had been having counselling sessions with the applicant since 14 November 2019. He had 20 face-to-face sessions and since then has had telephone sessions due to the COVID-19 pandemic. He said that the applicant had been ‘chronically homeless’. During the pandemic he has been very socially isolated as he has been unable to charge his phone in a library, or use health and social services. He said that he has consistently reported severe symptoms including traumatic re-experiencing, avoidance and feelings of hopelessness, sadness, isolation and irritability. He reported chronically poor sleep and anxious ruminating thoughts. The Counsellor said that these are symptoms consistent with post-traumatic stress disorder (PTSD), depression and anxiety. The Harvard Trauma Questionnaire and the Hopkins Symptoms Checklists confirmed these diagnoses, and the applicant reported complex trauma in childhood and as an adult consistent with the diagnosis. [Counsellor A] mentioned homelessness, social isolation, irritability, chronic health problems (cellulitis, reduced mobility, diabetes, dental and somatic pain) and feelings of hopelessness.
86. Treatment had involved supportive conversational approach, case management and problem-solving psycho-education and processing grief and loss. The treatment plan was for ongoing treatment. He was unable to engage in paid employment due to his symptoms and struggled to maintain contact with essential services. He also expressed severe anxiety at the possibility of returning to Brazil as he left there following a violent home invasion by organised criminal elements associated with a dominant political group. He fears that if he returns he would be vulnerable to political and criminal violence. The Counsellor said that he has no remaining family and friends in Brazil, the country is in crisis due to the COVID-19 pandemic and there is a systemic lack of support services for people in his situation of poverty, homelessness and social isolation with severe health issues. [Counsellor A] said that his fear of deterioration in mental and physical health was ‘credible and consistent’.
Centrelink Medical Certificate provided by [a doctor from a named] Medical Centre
87. This Certificate indicated that the applicant had been a patient since 13 April 2018 and had a diagnosis of anxiety and depression with symptoms of ‘low mood, anxious, suicidal thought, low concentration, insomnia, low energy’. Follow-up with a psychologist and general practitioner was planned. The doctor said that he was unfit for work from 18 March 2020 to 15 June 2020.
Centrelink Medical Certificate provided by [Doctor A] of [named medical] Centre
88. This Certificate indicated that the applicant had been treated by [Doctor A] from 16 September 2020. Her view was that the applicant was unfit for work from November 2020 to February 2020 (presumably a typographic mistake, meaning 2021). His medical conditions were listed as Type 2 Diabetes, PTSD, peripheral vascular disease and chronic leg wounds. An endocrinology review was planned as well as ongoing counselling.
Referral to cardiologist
89. An email from [Doctor A] dated 4 December 2020 to the applicant confirmed that he had been booked in to see a cardiologist on 15 December 2020. A referral letter to [a named specialist] dated 8 February 2019 was also provided indicating that the applicant was experiencing chest pain, ‘SOB and tingling of his left arm and fingers’.
Other medical documents
90. A number of other certificates, scan documents and pathology reports were provided.
Decision of the Department
91. On the basis of country information and the lack of detail in the applicant’s claims, the delegate did not accept that the applicant has any political profile or faced harm on account of his political views or his financial situation in Brazil.
FINDINGS AND REASONS OF THIS TRIBUNAL
Nationality
92. The applicant provided a copy of his Brazilian passport issued [in] May 2011 which expired [in] 2016, and a birth certificate showing he was born in Curitiba, Brazil. He gave evidence that he is a citizen of Brazil. The Tribunal is satisfied on this evidence that the applicant is a citizen of Brazil and that Brazil is the receiving country for the purposes of the legislation.
Findings of fact
93. 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.
94. 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.
95. 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.
96. The Tribunal has taken a reasonable approach to assessment of credibility as proffered in these decisions 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[1], both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. The Tribunal has also taken into consideration the applicant’s particular vulnerabilities. He appeared before the Tribunal unrepresented and currently homeless. The Tribunal is aware that he has had few resources to prepare his case. He also has a number of mental health issues. The Tribunal has taken all these factors into consideration in assessment of his evidence.
[1] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, Tribunal found the applicant to be a credible witness who told his story fluidly and without any obvious attempts to embellish his claims. His evidence before the Tribunal was consistent with the evidence he provided to the Department.
98. The Tribunal is satisfied on his oral evidence and passport information that the applicant grew up in Brazil but has travelled extensively for [sporting competitions] and work. The Tribunal is satisfied that his immediate family members – his grandmother, mother and [sibling] have all passed away. His father, who he only had contact with twice in his life, has passed away as well. He has no contact with any extended family. The applicant was able to provide detailed information about their passing, and also provided some death certificates.
99. The Tribunal is satisfied that the applicant was interested in politics as a young man as evidenced by his political discussion. Although he did not join a political party he did support Partido dos Trabalhadores (Workers Party) as did his father. He attended political rallies in the 1970s and while at university he made brochures and T-shirts. The Tribunal is satisfied that in the early 1990’s when the applicant was living in Brazil, he worked for Partido dos Trabalhadores hacking into websites to provide information about the opposition. The Tribunal accepts that he left this position as he believed it was not ethical and later his home was invaded and his computer cable burnt and discs taken, leading him to believe that criminal elements associated with the political party were trying to make sure there was no evidence of the hacking and warning him to be quiet about what he had done. His evidence about this was consistent in the accounts provided to the Department and Tribunal. The Tribunal accepts that he had two guns held to his mouth and head, and [suffered injuries]. He was able to show the Tribunal his [injuries] which have never recovered. The Tribunal accepts that this experience made him very frightened particularly as his mother and grandmother were home at the time. The medical reports refer to him suffering flashbacks and other symptoms of PTSD, consistent with experiencing such a terrifying incident, and he has also described the incident to his counsellor, independently of the review process.
100. The Tribunal accepts that the applicant had a career in professional [sport] around the world, and has high-level skills in [Industry 1], computers and [Occupation 2]. The Tribunal also accepts that he has talent in [specific subjects] and cybersecurity as he was able to provide details about these skills at hearing. The Tribunal accepts that between 1996 and 2014 he spent most of his time living in [Country 5] after which he accepted a job in Australia, and a series of unpredictable and tragic events has led to him living on the streets in Australia.
Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?
101. 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.
102. 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.
103. 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.
104. The Tribunal accepts that the applicant fears returning to Brazil for reasons of his political opinion and for fear of being financially destitute. He experienced a traumatic event in Brazil because of his work hacking for a political party and the negative impact of this on him has been described in the [Agency 1] report. It is reasonable therefore that he would have fears of returning to Brazil.
105. 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.
106. 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.
107. 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’.
108. The real chance of persecution must be for one of the reasons set out in the legislation.
Is there a real chance of serious harm for one of the reasons set out in the legislation, on the basis of the applicant being unable to subsist?
109. The applicant claims to fear returning to Brazil on the basis that he would be unable to find a job and would be unable to subsist. He has Type 2 diabetes. He also has a serious leg infection, high blood pressure and gets chest pain. He is now going to a diabetic clinic and is getting medication and is also seeing a cardiologist. However, his leg has caused significant pain and lack of mobility. Currently he cannot stand for more than two to three hours. The applicant told the Tribunal that he has no resources or contacts in Brazil, no relatives he could return to live with and no money. The Tribunal asked him if could utilise his skills in designing [Industry 1 equipment] and use contacts and work in these areas, given he has significant resourcefulness and has worked around the world. He said that there is a major health crisis in Brazil, and unemployment is high. He said that in Brazil, as well as Australia and [Country 5] there are very few jobs [in Occupation 1] and companies look for young people. He said that the pension system is almost non-existent in Brazil unless you have worked for 15 years for a company.
110. According to the BBC News Country Profile, Brazil is an economic giant and one of the rising economic powers.[2] 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.[3]
[2] 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.[4] Those impacted by poverty live in difficult conditions. People in favelas live on cramped streets, without decent ventilation, sanitation and access to water.[5] Numerous sources[6] indicate that 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.[7]
[4] 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
[7] Guilherme France, Brazil: Overview of Corruption and anti-corruption, Transparency International, 29 January 2019
112. The Tribunal accepts that in this climate, particularly in the time of the COVID-19 pandemic, the applicant may find it difficult to find suitable work in Brazil given his age and health conditions, even though he has a number of qualifications, skills and good experience. The counsellor from [Agency 1] has indicated that he currently cannot work because of his health issues, and a number of medical certificates demonstrate that he was unfit for work over the last few years, although he says he is improving with treatment. The Tribunal accepts that if he cannot find work, it would be difficult for him to find housing and access health and social services.
113. Although in his case there may well be real chance of serious harm in the form of being unable to subsist, or due to economic destitution, 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. When discussed with the applicant at hearing, he said that he cannot prove that he would be persecuted in Brazil. However he would have no assistance and he would fight to survive. He said that he may have to get involved with hacking again.
114. The Tribunal acknowledges that the applicant’s circumstances would be extremely difficult, however the harm suffered would be the result of general economic conditions and the applicant’s circumstances, rather than persecution for one of the reasons set out in the legislation.
115. 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 for one of the reasons set out in the legislation were the applicant to return to Brazil in the reasonably foreseeable future.
116. 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?
117. In his Department application, the applicant stated that in 1995 he was tied up, guns were put to his head and he was abused in front of his family as he refused to provide information about political activities. He said that he feared harm from criminal elements associated with his former political party, or other political parties if he returned to Brazil. At his Departmental and Tribunal interviews he clarified that he had provided hacking services to find out information about opposition parties for Partido dos Trabalhadores, the Worker’s Party. The Tribunal accepts his evidence, including that he hacked for the party during the Eco 92 Event which was attended by people from all over the world and that he later left the job as he found it unethical to hack into bank accounts. The Tribunal accepts that in 1995 he was at home with his grandmother and mother when the house was invaded by four men, who put guns to his head. They burned the computer and took his discs away. They also found a vault in the wall, interrogated him to get the number for the vault and [injured him]. The Tribunal accepts that he believed that criminal elements associated with the party were responsible.
118. The applicant confirmed that he still fears that criminal elements from the party would seek him out because he had knowledge of the hacking incidents which took place or did hacking work for the Workers Party.
119. The Tribunal is not satisfied that there is a real chance, in the sense of a substantial or non-remote chance[8] of serious harm because of his hacking activities for the following reasons. Firstly, the home invasion took place in 1995 which is over 25 years ago. It is unlikely that the applicant would still be of adverse interest to members of the party given political changes since then. He has not been involved in political groups or activities since that time and has mostly been living out of the country such that it is unlikely that anyone involved at the time would have any concerns about him disclosing any information. While he has political views and attended some rallies as a young man and made pamphlets and T-shirts while at university, he has had no involvement with political groups at all since 1995. In fact he said that he moved on from that period of his life while living in [Country 5].
[8] Chan v MIEA (1989) 169 CLR 379
120. Very relevantly the applicant visited Rio de Janeiro in [1997] (two years after the incident), without any repercussions. He again visited in [1999] and [2001] without anyone taking any interest in him. He then returned to Rio de Janeiro in [2002] and remained there until 2005 without any adverse interest in him. The applicant has said that at times during these periods he was ‘hiding’ or living [at various locations], however he returned on so many occasions and once for three years, and spent time with his family, such that if he was of adverse interest to political party activists or criminal elements associated with them, it is likely that they would have located him.
121. On the occasions that the applicant returned to Rio de Janeiro, the applicant was not involved in political activities or groups and the Tribunal is not satisfied that the applicant would so engage if he returned. The applicant has mentioned that he may have to return to hacking out of economic desperation, which could lead to harm. The Tribunal is not satisfied that there is a real chance of him returning to hacking in the reasonably foreseeable future, given that it is unlikely and indeed speculative that the applicant would return to hacking as it led to such a traumatic incident in his past.
122. Considering all these factors cumulatively, the Tribunal is not satisfied that there is a real chance of serious harm on the basis of the applicant’s actual or imputed political opinion.
123. In regard to political instability or repression in the country generally, the Tribunal is not satisfied that the applicant would be targeted for harm given his lack of involvement in politics in Brazil and while out of the country. 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.[9] 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.[10]
[9] BBC News, 3 January 2019, Brazil Country Profile, Human Rights Watch, One year of ruinous anti-rights policies in Brazil, 15 January 2020, The Freedom in the World Report for 2020 states that Brazil is a democracy that holds competitive elections, and the political arena is characterized by vibrant public debate, although independent journalists and civil society activists risk harassment and violent attack. The report states that people are generally able to express personal views in public without fear of surveillance or retaliation although in the tense 2018 campaign atmosphere, some political speech was met with acts of violence.[11]
[11] Freedom House, Freedom in World 2019 Brazil, 2020, Brazil | Freedom House
125. The Tribunal is satisfied, after consideration of these sources, that if the applicant returned to Brazil in the reasonably foreseeable future he could express political views without repercussion. The Tribunal is not satisfied that he would be targeted by authorities as he is not an activist or journalist. The applicant has not been involved in any political activity since 1995 and there does not appear to be a real chance, in the sense of a non-speculative chance,[12] of serious harm if he returned to Brazil.
[12] MIEA v Guo (1997) 191 CLR 559
126. 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 in the form of crime for one of the reasons set out in the legislation?
127. 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.[13] In the favelas police killed 606 people in the first four months of 2020.[14] Nationwide police have killed more than 30,000 people in the last 10 years.[15] 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.[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, 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, As discussed with the applicant at hearing, well-founded fear of persecution must be for one of the reasons set out in the legislation. In general, crime is random and particular criminal conduct would not be targeted at the applicant for one of the reasons set out in the legislation. Under the legislation, persecution must involve systematic and discriminatory conduct.[17] 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.[18] 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. He has mentioned that he would be noticeable as he is white as he is from [Country 1] descent. The Tribunal is not satisfied that he would be targeted for crime based on his race, given the random nature of crime. The United States Department of States Report for Brazil sets out examples of human rights abuses, and does not specify that whites, or people of [Country 1] descent are targeted specifically.[19]
[17] Section 5J(4)(c) of the Act
[18] MIMA v Haji Ibrahim (2000) 204 CLR 1
[19] United States Department of State, 2019 Country Report on Human Rights Practices Brazil,2020
129. 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 for one of the reasons set out in the legislation in the form of contracting coronavirus?
130. 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 and his vulnerabilities as he would be homeless. The country has been hit particularly hard by the virus. There are currently 880,286 cases in Brazil, which is high by world standards.[20] 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.[21]
[20]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,[22] out of a population of 213 million.[23] Out of the current cases, 99% are mild.[24] Out of the 9 million, 97% recovered.[25] The country is currently rolling out AstraZeneca and Sinovac vaccines in all 27 states.[26] A recent article in the Brazilian Report states that the government intends to purchase 10 million doses of the Sputnik vaccine.[27] 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.[28] The most recent UK travel advice refers to restrictions in Brazil on international flights, localised lockdowns and the mandatory wearing of masks.[29]
[22] Worldometer, Worldometer, Worldometer, Worldometer, BBC News, Covid: Brazil approves and rolls out AstraZeneca and Sinovac vaccines, 18 January 2021
[27] 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 ( As referred to earlier, 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.
133. 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.[30] 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, even if the applicant were living on the streets. The Tribunal is not satisfied therefore that there is a real chance of serious harm, in the sense of a substantial chance[31] were the applicant to return to Brazil in the reasonably foreseeable future.
[30] Worldometer, MIEA v Guo (1997) 191 CLR 559
134. 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.
Is there a real chance of serious harm on the basis of being the member of a particular social group of homeless people?
135. As discussed earlier, the Tribunal is satisfied on the evidence provided by the applicant that he does not have family or friends in Brazil who would be able to provide him with a home. He has lived primarily out of the country, except for when his mother and grandmother were dying and he returned home for a few years, such that he is unlikely to have any networks to help him. In [Country 5] and Australia he has been subject to extreme misfortune. This included being hired for a job in Australia which he lost shortly thereafter, because the company lost its franchise. He was robbed in Australia and lost everything, just before he was to return to [Country 5] to his business. Since then he has lost the assets in [Country 5]. On top of this, he has suffered from extreme ill-health including infections in his leg which has led to poor mobility, diabetes and mental health issues. The Tribunal is satisfied that if he returned to Brazil, although he does have skills and work experience, there is a significant possibility that he would be unable to find a home or subsist, given that he has no assets, savings, family, work experience in Brazil, networks or pension and he is aged [age]. He will be unable to access a pension as he has not worked in Brazil for 20 years.[32]
[32] Wilson Centre, Think Brazil, What’s happening with pension reform in Brazil, 22 October 2019
136. The Tribunal is not satisfied however that the harm he may suffer would be for reason of being a member of a particular social group of homeless people, instead it would be a result of economic conditions and his own circumstances. According to an article in Folha De S Paulo, Brazil started 2021 with a significant increase in the extreme poverty rate. Today, the country has more people in poverty than before the pandemic and the beginning of the last decade, in 2011.[33] There are about 15,000 homeless in Rio, whose issues have been exacerbated during the pandemic.[34]
[33] Folha de S Paulo, Brazil begins 2021 with highest number of people in extreme poverty in a decade, February 2021
[34] Al Jazeera, Stay home impossible advice for Rio’s homeless, 26 March 2020
137. The Brazilian government has, however, taken steps to combat the economic harm being suffered by the population and growth prospects in Brazil remain positive. According to the World Bank, the COVID-19 pandemic exposed Brazil to an unprecedented health and economic challenge:[35]
To contain the pandemic, Brazil has implemented social measures to slow the spread of the virus and contain its impact on the health system capacity, which is uneven across the country. The pandemic has brought uncertainties to the macroeconomic policy framework, especially in the fiscal scenario, which translate into downside risks, calling for strong fiscal consolidation and adoption of structural reforms in 2021. To protect the most vulnerable people, the Government has put forward a large, timely, targeted and time bound fiscal package focused on social assistance. The cost of this package is estimated at BRL 713.4 billion (US$135.4 billion), or 10.4 percent of GDP. Following the dramatic decreases in domestic and international demand resulting from the pandemic during the first half of the year, Brazil is projected to fall into its deepest recession on record. While activities normalize, the crisis created a steep drop in labor income and employment, increasing the likelihood of falling into poverty among low-salary workers and informal workers – two groups where vulnerable groups were overrepresented before the COVID-19 pandemic. The unemployment rate reached 13.3 percent in June 2020 the highest rate in the past three years. However, due to the broad social response from government to support private consumption, sectors like industry and commerce show a partial rebound, while the services sector’s recovery remains heterogeneous across subsectors. Despite the recession, Brazil’s macroeconomic framework is expected to remain broadly adequate, albeit with substantial downside risks, calling for strong fiscal consolidation and adoption of structural reforms, some of which have already started to remove critical bottlenecks for productivity growth.[36]
[35] World Bank Brazil overview, 18 November 2020, Brazil Overview (worldbank.org)
[36]World Bank Brazil overview, 18 November 2020, Brazil Overview (worldbank.org)
138. The city government has tried to move the homeless into shelters and family housing, with some success,[37] and non-governmental organisations like Doctors Without Borders have provided medical assistance, although homeless people remain susceptible to violence and lack of adequate hygiene.[38]
[37] The Borgen Project, 10 Facts about homelessness in Brazil, 22 July 2020
[38] The Borgen Project, 10 Facts about homelessness in Brazil, 22 July 2020
139. In AGA16 v MIBP [2018] FCA 628 the court accepted the appellant’s proposition (undisputed by the Minister) that in assessing the seriousness of harm, it is necessary to have regard to personal attributes such as age and frailty, as well as personal vulnerabilities. While the Tribunal is satisfied that the applicant may well be homeless given his personal circumstances, and this may mean that he is more vulnerable to crime and increasing ill-heath, the Tribunal is not satisfied that the harm he would suffer would amount to persecution for reasons of membership of the particular social group of homeless people. Rather, the harm suffered would be the result of economic and social conditions in the cities generally. The Tribunal is also not satisfied that there is any systematic or discriminatory conduct involved, as the harm suffered would not be motivated by a desire to harm the applicant for reasons of his membership of a particular social group of homeless people, rather it would be random and undirected.
140. The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for reasons of his membership of a particular social group of homeless people.
Findings on refugee criteria
141. 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.
Does the applicant meet the complementary protection criteria?
142. If the applicant does not meet the refugee criterion he may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Brazil, there is a real risk that he will suffer significant harm: (‘the complementary protection criterion’).
143. ‘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.
144. 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.
145. For reasons set out earlier, the Tribunal is not satisfied that there is a real chance of serious harm on the basis of political opinion 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 due to the applicant’s involvement in hacking, or of contracting coronavirus, were the applicant to be removed from Australia to Brazil.
146. The Tribunal is satisfied that if the applicant were to return to Brazil, he may well be unable to find a job and may become homeless, which would make him more vulnerable to crime.[39] The Tribunal is not satisfied however that the applicant would be arbitrarily deprived of life from criminal activity s.36(2A)(a), as there is not a real risk that he would lose his life. While there is a high murder rate, the Tribunal is not satisfied that the risk would be substantial and non-remote[40] as the murders only impact on a small number of the population. Further, the United States Department of State report states that most unlawful killings have been in the favelas against narcotics trafficking gangs, young Afro-Brazilian men, victims of police violence or political activists.[41] The applicant does not fall into these categories.
[39] Honorato, B and Oliveira, A; Revista de Administracao Publica, Homeless Population and COVID-19, Epub, 28 August 2020
[40] Chan v MIEA (1989) 169 CLR 379
[41] United States Department of State, 2019 Country Reports on Human Rights Practices: Brazil, 2020
147. The Tribunal is also not satisfied that the applicant would arbitrarily be deprived of life because of worsening health due to homelessness and lack of access to health services. While there is no definition in the Act of ‘arbitrary deprivation of life’ on the basis of the ordinary meaning of the words, ‘arbitrary’ can mean ‘subject to individual will or judgment, discretionary’.[42] There is no requirement for intention, however the word ‘deprived’ may import an element of deliberateness, some form of positive act, rather than general conditions of poverty or lack of facilities. The Complementary Protection Guidelines refer to arbitrary deprivation of life as involving elements of injustice, lack of predictability, or lack of proportionality.[43] Judicial comments have suggested that this kind of harm involves such matters as extrajudicial killing or excessive use of force rather than the consequences of scarce medical resources, MZAAJ v MIBP [2015] FCCA (Judge Riley, 4 February 2015). In that case the issue was the lack of availability of dialysis in Sri Lanka. This was accepted on appeal in MZAAJ V MIBP [2015] FCA 141. His Honour Justice Pagone said that the words ‘arbitrary deprivation of life’ should be given their ordinary meaning. In SZDSD v Minister for Immigration and Anor [2018] FCCA 1029, Judge Baird said that the prospect of the applicant dying from a health condition, would not enliven the application of the provision, ‘without more’.
[42] Macquarie Dictionary online, Department of Home Affairs, PAM 3, Refugee and humanitarian – complementary protection guidelines, re-issued 21 May 2015
148. In GCLV v MICMSMA [2020] FCCA 270, the court considered whether arbitrary deprivation of life, for the purposes of ‘significant harm’, requires an intentional element. The court relied on SZDCD v MIBP [2019] FCA 326 and held that the Tribunal erred in finding that ‘arbitrary deprivation of life’ required an actual subjective intention to inflict harm. However, the court did not consider authority in EZC18 v MHA [2019] FCCA 464 and EZC18 v MHA [2019] FCA 2142 which held that arbitrary deprivation of life must arise from an intentional act or omission from a third party. In EZC18 v MHA [2019] FCCA 464, the Federal Circuit Court held that a decision-maker must be satisfied that another actor is intent on dispossessing another person of their life in a despotic or tyrannical fashion or otherwise subject to whim or caprice. The Federal Court on appeal took a similar view, ultimately holding that s.36(2A)(a) is restricted to the risk of being deprived of life by third parties.[44]
[44] EZC18 v MHA [2019] FCA 2143 at [47].
149. Considering the ordinary meaning of the words in light of these judgments, the Tribunal is not satisfied that the applicant would as a necessary and foreseeable consequence of being removed from Australia to Brazil, be arbitrarily deprived of life, in the sense that there would be some discretionary positive act to so take away his life. Instead, were such a result to ensue, and hopefully it would not, it would be the result of economic conditions in the country generally. There is no doubt that homeless people are generally more socially vulnerable, and have less support and ability to access health systems, and are more susceptible to infection.[45] However there does not seem to be positive action of the relevant governments to arbitrarily deprive homeless persons of services, thus leading to adverse outcomes including death. The Brazilian health system is generally regarded as better than in many other South American countries, referred to by the World Health Organisation as an outstanding success.[46] Although the COVID-19 pandemic has created enormous difficulties, there is a nationally funded health system with universal access, called the Unified Health System (SUS). During the centre-left presidencies, 2003 to 2014, there was the expansion of access to SUS services, coupled with important advances in social cash transfer programs such as Bolsa Familia, rural retirement and rising wages, which has contributed to the improvement of the health status of the population. However recent cuts in funding are impacting universal access.[47] Mental health facilities are available across the country, and although some reports refer to it as ‘chaotic and disorganised’[48] with limited community places, other sources have called it outstanding, with its system of community-based services replacing hospital-placed services, widely acknowledged at the international level.[49]
[45] Honorato, B and Oliveira, A; Revista de Administracao Publica, Homeless Population and COVID-19, Epub, 28 August 2020
[46] WHO, Flawed but fair: Brazil’s health system reaches out to the poor, Volume 8: 2008, Number 4, April 2008
[47] Ublic Health Association, AJPH, Brazil’s National Health Care System at risk for losing universal character, June 2020, American Brazil’s National Health Care System at Risk for Losing Its Universal Character | AJPH | Vol. 110 Issue 6 (aphapublications.org)
[48] Cambridge, Mental Healthcare in Brazil: modest advances and major challenges, 2 January 2018, Mental healthcare in Brazil: modest advances and major challenges | Advances in Psychiatric Treatment | Cambridge Core
[49] Cadernos de Saude Publica, Mental health policy in Brazil: what’s at stake in the changes currently under way, 31 October 2019
150. Considering these sources, the Tribunal is not satisfied that there is a real risk of arbitrary deprivation of life as a result of withholding access to health services, or the standard of services provided. Any such outcome would be the result of under-resourcing rather than an act or omission of government.
151. There is no suggestion that the applicant would suffer the death penalty or torture. In regard to mistreatment by members of political parties or their associates, the Tribunal is not satisfied as discussed earlier, that there is a real risk of such harm.
152. The Tribunal has considered whether there is a real risk of significant harm in the form of ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’.
153. Cruel or inhuman treatment or punishment for the purposes of s.36(2A)(d) is exhaustively defined in s.5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted. Degrading treatment or punishment is exhaustively defined in s.5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
154. The Tribunal is satisfied that the applicant may be unable to find a job and become homeless in Brazil, and that he may be more vulnerable to crime and suffer worsening health as a result, which could lead to severe pain or suffering. However the Tribunal is not satisfied that such an outcome would be intentional, as the legislation requires. Sources indicate that the authorities in Brazil are trying to overcome poverty, homelessness and crime,[50] which are the result of complex economic and social conditions, such that there is no intention by authorities to harm. Furthermore, as discussed earlier, the response by authorities to the COVID-19 crisis indicate that there is no intentional act or omission to harm. These provisions require actual, subjective intention on the part of a person to bring about suffering rather than mere knowledge or negligence.[51]
[50] BBC World News online, Country Profile Brazil; Honorato, B and Oliveira, A; Revista de Administracao Publica, Homeless Population and COVID-19, Epub, 28 August 2020
[51] SZTAL v MIBP (2016) 243 FCR 556; SZSPE v MIBP [2013] FCCA 1989
155. 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 the risks of worsening health, crime or contracting coronavirus,[52] 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.
[52] MZAAJ v MIBP [2015] FCA 478
Findings on complementary protection
156. 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.
Referral to the Minister
157. Under s.417(1) of the Act, the Minister may substitute for a decision of the Tribunal a decision that is more favourable to an applicant if the Minister thinks that is in the public interest to do so. This is a discretion reserved for the Minister only.
158. The Tribunal has considered the Ministerial Guidelines on ministerial powers[53] and refers this matter to the Minister for his consideration on the basis of unique and exceptional circumstances[54]. In particular the Tribunal refers the matter on the basis of ‘compassionate circumstances regarding the age, health and psychological state of the applicant that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the applicant’.[55] The relevant circumstances are set out in brief below, but more detail of the applicant’s background is contained in the evidence presented to the Department and Tribunal, summarised earlier in this decision.
[53] PAM3: Act- Ministerial guidelines on ministerial powers (s.351, s.417 and s.501J), registered 29 March 2016
[54] PAM3: Act- Ministerial guidelines on ministerial powers (s.351, s.417 and s.501J), registered 29 March 2016
[55] PAM3: Act- Ministerial guidelines on ministerial powers (s.351, s.417 and s.501J), registered 29 March 2016
159. The applicant is aged [age]. He suffers from a number of conditions including Type 2 diabetes, vascular disease, chronic leg wounds and PTSD. He currently has limited mobility. A number of medical documents have been provided. As the applicant is currently homeless and unrepresented, a full medical assessment has not been provided but it is clear from the medical certificates and other information, as well as his own evidence, that he suffers from a number of debilitating conditions. If he were to return to Brazil there is no doubt that he would suffer serious, ongoing and possibly irreversible harm and continuing hardship. The applicant’s close family members in Brazil have all passed away such that he has no family support. He has lived primarily in [Country 5] and other countries in his adult life so that he has no friendship or business networks in Brazil. He has lived in Australia since 2014 and has been waiting for his decision on review of this decision since 2017 and has been unable to work. He states that he cannot get a pension as he has not worked in Brazil for 20 years, a proposition which appears to be supported by country sources.[56] As he would be returning to Rio de Janeiro in a state of extreme poverty, it is likely he would be homeless and subject to extreme hardship in the poorer areas of the city, possibly the favelas, where life is notoriously difficult.[57] Furthermore, Rio de Janeiro has sad and traumatic memories for the applicant as his grandmother, mother and [sibling] have all passed away, and he was subject to a frightening home invasion in 1995, which has had significant negative impact as outlined in the [Agency 1] report.
[56] Wilson Centre, Think Brazil, What’s happening with pension reform in Brazil, 22 October 2019
[57] Honorato, B and Oliveira, A; Revista de Administracao Publica, Homeless Population and COVID-19, Epub, 28 August 2020; The Guardian, If the applicant were granted a visa in Australia, he appears to have a number of skills – in [subjects], [Industry 1], cyber security and [Occupation 2], which he could utilise to earn money and seek medical attention for his various ailments. Indeed, he suggests that he has been offered a number of work and study opportunities should he be granted a visa. He appears to have been hard-working and conducted a number of businesses in the past prior to the misfortune which struck him after his arrival in Australia. In short, he travelled to Australia from [Country 5] for [an Industry 1] job. He lost this job shortly after arrival when his employer lost his franchise. The applicant said that he intended then to return to [Country 5] to his business, but he was robbed and lost ‘everything’, his money, telephone and passport. He said that he has been unable to get work rights and has been homeless and alone since 2016, often living on trains. He has been the victim of crime on a number of occasions. Notwithstanding this misfortune he remains optimistic that he can contribute to the Australian workforce and community and is positive about Australia as a land of democracy and justice.
161. Having regard to the applicant’s circumstances, in particular his age and health and having considered the ministerial guidelines relating to the Minister’s discretionary power under s.417 of the Act, set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’, the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.
CONCLUDING PARAGRAPHS
162. 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).
163. 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).
164. 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 any of the criteria in s.36(2).
165. The Tribunal refers this matter to the Department to be brought to the Minister’s attention under s.417 of the Act.
DECISION
166. The Tribunal affirms the decision not to grant the applicant a protection visa.
Jane Marquard
MemberATTACHMENT - 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.
…
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Citations1714037 (Refugee) [2021] AATA 883
Cases Citing This Decision0
Cases Cited21
Statutory Material Cited0
ABT16 v Minister for Home Affairs [2019] FCA 836AGA16 v MIBP [2018] FCA 628