Evidence
Evidence Before The Court
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, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CLAIMS AND EVIDENCE The applicant claims to be a citizen of Brazil who was born on [date] in [Town 1], in Mato Grosso do Sul, Brazil. According to his protection visa application, the applicant resided in [Town 2], Mato Grosso do Sul and in [Town 3], Sao Paulo. He completed high school and further higher education including a [specified] course and is fluent in Portuguese and English. The applicant was employed in Brazil at a [business 1] from March 1995 to June 1997 and September 1998 to April 2000 and at a [business 2] from June 2001 to February 2008. He departed Brazil legally [in] April 2008, arriving in Australia on the [following day] on a student visa. The applicant was married [in] January 2006 and divorced [in] October 2013. He has a daughter who was born on [date] and is a citizen of Australia. The applicant’s claims were outlined in an attached submission made by his representative, summarised as follows: ·The application for protection is being lodged so that the applicant can ultimately seek intervention of the Minister pursuant to s 417 on the basis of his unique and exceptional circumstances. ·The applicant travelled to Australia with his wife and child [in] April 2008 as holders of Independent ELICOS Sector (subclass 570) visas. The applicant was to study an Intensive English (Beginners to Advanced) course at [a named college]. He went on to study [another course] at [another college]. ·On 25 February 2011 the applicant received notification that his student visa would be cancelled. At the time the applicant had fallen into a deep depression, as he was coming to terms with his separation and impending divorce from his then-wife. ·The applicant became unlawful since the expiry of his student visa in 2011 and is therefore unable to access the Minister’s personal intervention powers. ·The applicant has an Australian citizen child who he shares care for with her grandparents, who are Australian citizens. The applicant is seeking Ministerial intervention in order to remain in Australia with his daughter.·The applicant is concerned about the human rights violations that persist throughout Brazil and the disconnection between Brazil’s pursuit of its economic interests and human rights abuses including police brutality, use of torture and ill-treatment and prison overcrowding. The delegate was not satisfied Australia had protection obligations in respect of the applicant and refused the protection visa application on 6 January 2020. On 20 May 2021, the Tribunal received a legal submission from his representative, in which it was acknowledged that the applicant may not meet the eligibility criteria for a Protection (subclass 866) visa. The representative explained that the applicant applied for a protection visa as he had no other visa options available to him, with a view to seeking a review of the refusal decision by the Tribunal, and thereafter request the intervention of the Minister under s 417 of the Act. The representative provided a summary of the applicant’s background and immigration history and updated information regarding the applicant’s situation including that the applicant’s daughter has been living permanently with him since the age of [age]; shortly after his daughter began residing with him, his ex-wife’s son to another partner also moved in to live with him and his daughter; and he is the primary carer of his daughter and his ex-wife’s son and has sole responsibility for both children. The representative also provided detailed submissions addressing the Minister’s guidelines for intervention pursuant to s 417 and the applicant’s circumstances which they contend fall within the guidelines on the basis of his unique and exceptional circumstances, in particular the strong compassionate circumstances, that if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to the applicant’s children who are both Australian citizens and members of the applicant’s immediate family.
Decision
Reasons for decision
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Sydelle MulingMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
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 he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of 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 complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CLAIMS AND EVIDENCE The applicant claims to be a citizen of Brazil who was born on [date] in [Town 1], in Mato Grosso do Sul, Brazil. According to his protection visa application, the applicant resided in [Town 2], Mato Grosso do Sul and in [Town 3], Sao Paulo. He completed high school and further higher education including a [specified] course and is fluent in Portuguese and English. The applicant was employed in Brazil at a [business 1] from March 1995 to June 1997 and September 1998 to April 2000 and at a [business 2] from June 2001 to February 2008. He departed Brazil legally [in] April 2008, arriving in Australia on the [following day] on a student visa. The applicant was married [in] January 2006 and divorced [in] October 2013. He has a daughter who was born on [date] and is a citizen of Australia. The applicant’s claims were outlined in an attached submission made by his representative, summarised as follows: ·The application for protection is being lodged so that the applicant can ultimately seek intervention of the Minister pursuant to s 417 on the basis of his unique and exceptional circumstances. ·The applicant travelled to Australia with his wife and child [in] April 2008 as holders of Independent ELICOS Sector (subclass 570) visas. The applicant was to study an Intensive English (Beginners to Advanced) course at [a named college]. He went on to study [another course] at [another college]. ·On 25 February 2011 the applicant received notification that his student visa would be cancelled. At the time the applicant had fallen into a deep depression, as he was coming to terms with his separation and impending divorce from his then-wife. ·The applicant became unlawful since the expiry of his student visa in 2011 and is therefore unable to access the Minister’s personal intervention powers. ·The applicant has an Australian citizen child who he shares care for with her grandparents, who are Australian citizens. The applicant is seeking Ministerial intervention in order to remain in Australia with his daughter.·The applicant is concerned about the human rights violations that persist throughout Brazil and the disconnection between Brazil’s pursuit of its economic interests and human rights abuses including police brutality, use of torture and ill-treatment and prison overcrowding.
