1720625 (Refugee)

This matter concerned an appeal by the applicants against a decision of the Tribunal to affirm the refusal of their protection visas. The applicants, who were from Brazil, had previously made claims for protection based on allegations of electoral fraud and harassment. However, they no longer relied on these original claims, stating they were no longer relevant. Instead, their current application was based on concerns for their children, all of whom were born in Australia. The applicants argued that their children would face difficulties adjusting to life in Brazil, including social and school pressures, and might suffer emotional and psychological harm due to the general social instability and poor law and order situation in Brazil.

The primary legal issue before the Tribunal was whether the applicants were entitled to complementary protection in Australia under section 36(2)(aa) of the Migration Act 1958 (Cth). This criterion requires the Minister to be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal from Australia, there is a real risk that they will suffer significant harm. The Tribunal was also required to consider the definition of "significant harm" as set out in the Act, which includes arbitrary deprivation of life, the death penalty, torture, or cruel, inhuman, or degrading treatment or punishment, all of which require an intention to inflict harm.

The Tribunal reasoned that the applicants' concerns for their children's well-being in Brazil were largely speculative and did not meet the "real risk" threshold. While acknowledging the general social and political instability in Brazil, the Tribunal noted that the applicants themselves appeared to concede that these conditions affected the Brazilian population generally. The Tribunal specifically considered section 36(2B)(c) of the Act, which states there is not a real risk of significant harm if the risk is faced by the population generally and not by the applicant personally. The applicants' primary argument that their children were "virtual Australians" and would struggle to adapt was not considered sufficient to establish a real risk of significant harm, particularly as the applicants could not point to any specific factors that would make their children uniquely vulnerable beyond the general risks faced by the population. The Tribunal also noted that the applicants themselves did not believe they faced a "real risk" of significant harm.

Consequently, the Tribunal affirmed the decision not to grant the applicants protection visas. The applicants had indicated that, in the event of a negative decision, they wished for the Minister to intervene in the interests of their children, particularly their son who was an Australian citizen.