2018346 (Refugee)
[2024] ARTA 783
•19 December 2024
2018346 (REFUGEE) [2024] ARTA 783 (19 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2018346
Tribunal:General Member V. Price
Date:19 December 2024
Place:Melbourne
Decision:The Tribunal sets aside the decisions under review and remits the applications for protection visas for reconsideration, in accordance with the orders that:
(i)that the second, third and fourth named applicants meet s 36(2)(a) of the Migration Act; and
(ii)that the first named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.
Statement made on 19 December 2024 at 3:17pm
CATCHWORDS
REFUGEE – protection visa – Italy – Brazil – particular social group – victim of family violence – women in Brazil – bisexual – fear of Mafia violence – threats from former partner’s organised crime family – house and car break ins – mental health issues – gender-based violence – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 367A, 499
Migration Regulations 1994, Schedule 2; r 1.12CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 December 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants consist of a family group. The first named applicant (applicant one) is an adult male and a citizen of Italy. The second named applicant (applicant two) is the wife of the first named applicant. The second and third named applicants (applicant two and three respectively) are the adult daughters from applicant two’s previous relationships. Applicants two, three and four are citizens of Brazil.
The applicants lodged a joint application for a protection visa on 30 August 2018. The delegate refused to grant the visas as they were not satisfied the applicants had a real chance or risk of harm on return to their respective countries of nationality.
The applicants appeared before the Tribunal on 11 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of interpreters in the Italian and English languages, and the Portuguese and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
BACKGROUND, CLAIMS AND EVIDENCE
The applicants’ claims for protection were set out in their protection visa application and in their written and oral evidence to the Department and the Tribunal.
The applicants have each made their own claims for protection and their claims and evidence to the Tribunal are discussed below.
Applicant one:
Applicant one was born in Lombardia, Italy and resided there with his parents and siblings. He completed primary school and high school to [grade] and then undertook studies in [occupation 1]. He became [an occupation 1], and his work took him to Brazil multiple times.
His father has passed away, but his mother and siblings continue to live in Italy. Applicant one has two children from his first marriage, and they also reside in Italy. [Occupations deleted.]
In Australia, applicant one continues to work in [occupation 1]. He owns and operates his own business [business type deleted].
Applicant one stated that the father of his former romantic partner [Partner A], before he married applicant two, was part of an Italian crime family. He tried to break off the relationship many times, but her father threatened to kill him should he leave [Partner A]. He ran away to Brazil for work. He met applicant two in 2011 and they married in Brazil in 2014.
He received more threats when [Partner A] learned of their relationship. His car and his apartment were broken into in 2012 on a return trip to Italy. The car break in was reported to the police who did not act on their complaint. When applicant one, and applicants two and four resided in Italy, they were constantly harassed, with frequent missed telephone calls, and their doorbell ringing at odd hours. Applicant one came to Australia in 2014, in large part to escape the harassment. Applicants two, three and four, joined applicant one in January 2018.
Applicant one has not heard from [Partner A] or her family directly since 2014, though they have received hang up calls in Australia and believe it might be them. He, and applicant two, will be harmed on return to Italy by the family of [Partner A]. They never forget or forgive past slights.
Applicant two:
Applicant two was born in São Paulo province in Brazil. She has [specified family members]. Her parents died when she was a child, and she was raised by her grandfather until his death, and then her uncle from the age of [age].
She completed primary school but did not go to secondary school. She undertook a variety of jobs including: in [various occupations]. She had two previous long-term partners and applicants three and four are her children by those partners respectively. She met applicant one in 2011 when he [visited the place] where she worked. Applicant two currently assists her husband in his business and as [an occupation 2] in her own business.
Applicant two is a victim survivor of family violence perpetrated by both of her former partners. She was also the victim of a sexual assault by a stranger in 1997. She reported the rape to the authorities and during three hours of questioning they laughed at her, and she left the police station without resolution of her case. She has been undergoing psychiatric treatment for depression and PTSD for a long time and continues to do.
She fears harm in Italy due to the harassment they expressed from the family of [Partner A], and fears returning to Brazil due to the ongoing threat from the father of applicant four and his family, as well as the general high rates of violence against women in Brazil.
Applicant three
Applicant three was born in São Palo Brazil. Her father died when she was about two years of age. Her mother remarried and applicant three lived with them, and her half-sister. She completed primary and secondary school in Brazil, before undertaking work in customer service. In Australia, she has undertaken employment as a [specified role] and is pursuing further studies, including a [specified qualification]. She currently works for a [company] as [an occupation 3].
She was sexually abused by her stepfather (the biological father of applicant four) as a child. He is part of a criminal gang, and he and his brother were violent towards her and her mother. She believes he and his family will harm them on return to Brazil.
Applicant three is bi-sexual. She was married to a woman in Brazil, but they later divorced. At present she is in a relationship with a man but continues to identify as bi-sexual and will do so in the future. She also fears harm for this reason on return.
She is undergoing treatment for long-term mental health concerns and has no support networks on return.
Applicant four
Applicant four is the youngest daughter of applicant two. She was also born in São Paula and resided there until 2014 when she moved to Italy with her mother and applicant one and experienced the harassment from [Partner A’s] family.
She began primary school in Brazil and [grade] in Australia. She has completed studies in [subject] and currently works at [a specified facility].
She was sexually assaulted by her older male cousins when she was only [age] years old. She witnessed the violence against her mother and sister by her father and uncles. She was not directly harmed by her father at that time, largely due to her mother protecting her. However, she was exposed to the ongoing abuse of her mother and sister.
Her father has been imprisoned in the past for drug related crimes, and along with her uncle, they are part of a criminal gang. They are no longer in contact, but prior to ceasing contact he threatened her and her mother. As far as she is aware he is still active in the gang, which is called [Gang 1]. They have connections all over Brazil. She was safe from him in the past, but he will harm her in the future.
Applicant four also identifies as bi-sexual. Her most recent partner was male, but she has had long term relationships with females and will continue to identify as bi-sexual in the future, and fears harm for that reason on return to Brazil. She is on medication for ongoing mental health issues and continues to have treatment. She also raised concerns that sexual harassment against women in Brazil is rife, as is racism against black Brazilians.
Supporting evidence before the Tribunal
The following material was before the Tribunal to support the applicants claims:
·Protection visa application and a copy of the interviews undertaken with the department delegate.
·Statements by applicants one dated 30 August 2018.
·Statements by applicant two dated 3 September 2020.
·Statements by applicant three dated 29 August 2020.
·Statements by applicant four dated 29 August 2020.
·Identity documents for each of the applicants, including a copy of the marriage certificate for applicants one and two.
·Legal submissions prepared by the applicants’ representative dated 4 October 2024 with attachments, including numerous letters in support of the applicants.[1]
·Psychologist reports for applicants two, three and four.
·Certificate of marriage and evidence of divorce for applicant three.
[1] English Translation of Police Report made by applicant one to the Italian authorities regarding theft from his car in 2012; [Course name] Statement of Results (2024) for applicant four; Confirmation of Enrolment - [Course name] (12 September 2024) for applicant three; Employment Reference Letter – [Employer 1] for applicant four; Employment Reference Letter - [Employer 2] (6 September 2024) for applicant three; Letter of Support - [Employer 3] (20 August 2024) for applicant one; Letter of Support - [Mr and Mrs A] (30 September 2024) for applicant one; Letter of Support - [Employer 4] (2 October 2024) for applicant one;Letter of Support - [Employer 5] for applicant one ; Letter of Support - [Employer 6] (2 October 2024) for applicant one; Statutory Declaration of [Partner B] (26 August 2024) the current partner of applicant three; and ABN [for applicant 1] - Sole Trader.
The Tribual has had reagard to the above material, as well as the applicants’ oral evidence at hearing, and relevant country information set out below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, 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 themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they 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-LA, which are extracted in the attachment to this decision.
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.
Section 367A
Section 367A of the Act states that if an applicant raises a claim or presents evidence that was bot presented before the primary decision is made, the Tribunal is to draw an unfavourable inference on the credibility of that material, if satisfied that there is no reasonable explanation as to why it was not provided before the making of that decision.
In this case additional material and evidence was provided to the Tribunal for the purpose of responding to the findings of the delegate and as the Tribunal requested further material during the hearing. I find these are reasonable explanations and as such I am not required to draw unfavourable inferences regarding this material, and I do not do so.
REASONS AND FINDINGS
Nationality and area of return: applicant one
On the identity documents provided by the applicant one, I find that he is a national of Italy. There is nothing to indicate that he holds nationality of any other country, and I am not satisfied that he does.
Applicant one was born and largely resided in [City 1], in the Lombardia region in Italy. I find this is the area to which he would return.
Nationality and area of return: applicants two, three and four
The identity documents provided by applicants two, three and four confirm they hold nationality of Brazil. There is no evidence before me to suggest they hold nationality of any other country, and I am not satisfied that they do.
Applicants two, three and four resided in São Paulo Province in Brazil, and I find this is the area to which they would return.
Section 36(3) applicants two, three and four
There is nothing in the evidence before me to indicate that applicants two, three and four hold a current right to enter and reside in any other country apart from Brazil, including for any reason associated with applicant two’s marriage to applicant one. I find that s 36(3) does not apply to applicants two, three and four in this matter.
Issues for consideration
The issue in this case is whether the applicants have a well-founded fear of persecution in their respective countries of nationality or if not, whether they face a real risk of significant harm.
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Credibility
The Tribunal found the applicants to be forthcoming in their oral evidence to the Tribunal. Their evidence was detailed, spontaneous and presented in a manner indicative of genuine lived experience. Their claims and evidence were both internally consistent with earlier evidence they each provided, as well as consistent with each other’s evidence. Moreover, their evidence was supported by documentary evidence which the Tribunal accepts is genuine, and it is consistent with the relevant country information regarding the circumstances in both Italy and Brazil, which is discussed further below. The Tribunal finds that the applicants to be credible witnesses.
Refugee Assessment
Applicant one
Applicant one provided a credible account of his tumultuous relationship with [Partner A], and his evidence that her father and family were part of an organised crime family are plausible considering independent information regarding the operation and activities of such groups in Italy.[2] Information also confirms that these groups expanded their criminal enterprises and contacts into Latin American in the 1970’s[3] lending credibility to the applicants’ evidence that he received threats over the phone during his time in Brazil. The claims are also supported by the police report lodged in relation to the car break in provided to the Tribunal, which I accept is genuine.
[2] Europpol, ‘Mafia-structured-organised-crime-groups-ocg’, accessed 12 December 2024; Fabrizio Maccaglia, translated by Oliver Waine, “Northern Mafias: the territorial spread of organised crime in Italy”, Metropolitics, 26 February 2015; United Nations Interregional Crime and Justice Research Institute (UNICRI), ‘Organised Crime and the Legal Economy, the Italian Case’, 2016; United States Department of State (USDOS), ‘ Italy 2023 Human Rights Report- Italy’, (USDOS Human Rights Report Italy) 2024, page 9; USDOS Overseas Security Advisory Council (OSAC), ‘Italy Country Security Report’, 4 April 2024 (OSAC Italy Report), page 2; Freedom House, 'Freedom in the World 2024 - Italy', 2024 (Freedom House Report) pages 2, 5, 10 and 12; Global Initiative Against Transnational Organised Crime (GIATOC), ‘Global Organised Crime Index Italy’ 2023 (Crime Index Report Italy 2023); and AP, ‘More than 200 Convicted in Italy’s Maxi Trial involving the Ndrangheta Crime Syndicate’, Euronews.com, 20 November 2023.
[3] 'The Rise of Global Crime Networks: European Mafias in the Americas', Mario Saiz, InSight Crime, 18 November 2024, 20241119081818
On the totality of the evidence before me, I accept that applicant one was in a relationship with [Partner A] and that her father was a member of an organised crime family and that he threatened to harm applicant one if he broke off the relationship with his daughter. I accept that applicant one received threatening phone calls in Brazil, and that applicants one, two and four were harassed by [Partner A] and her family members when they returned to Italy, including receiving hang up phone calls and having the doorbell rung at odd hours. I accept applicant one’s car and apartment were broken into, and that the incident with the car was reported to the authorities but was not acted upon.
Applicant one stated that they had been receiving hang up calls in Australia periodically over the years, which he believed to be from Australian associates of [Partner A] and her family. When asked, applicant one stated that he did not know if [Partner A] or her family knew that he had moved to Australia. Moreover, the hang up calls were sporadic, and no one said anything, identified themselves or made any threats against applicant one or his family. In these circumstances, I am not satisfied on the evidence that the calls were made by anyone associated with [Partner A] or her family. This is particularly so given applicant ones sated one had not heard directly from [Partner A] since 2014 and I consider it highly unlikely that she or her family would remain interested in pursuing him for twenty years. In all the circumstances, I am not satisfied that she, her family, or their associates, would seek him or his family out on return to Italy or that he or his family face a real chance of harm for this reason on return to Italy now or in the reasonably foreseeable future.
In any event, even if [Partner A], her family, or their associates do contact him on return, I consider that their past conduct is indicative of their future behaviour. I accept that in 2012 [Partner A] and their associates attempted to break into his home once and once broke into his car, but these acts were not attempted again including in 2014, and I am not satisfied [Partner A], her family or their associates would undertake this conduct in the future. At most I find that applicant one would receive hang up calls and have his doorbell rung at odd times. While I accept these acts amount to low level harassment and would be stressful for applicant one and his family, even taken cumulatively I am not satisfied that the conduct rises to the level of serious harm: it does not amount to significant physical ill-treatment, significant physical harassment, a deprivation of their life of liberty and nor does it otherwise amount to serious harm of the kind contemplated by the Act.
I am not satisfied that the applicant one or his family members face a real chance of serious harm on return to Italy now or in the reasonably foreseeable future from [Partner A] or her family and their associates.
Applicant one does not have a well-founded fear of persecution in Italy. He does not meet the refugee criterion in s 36(2)(a) of the Act.
Applicants two, three and four
I consider the evidence provided by applicants two, three and four to be credible. The evidence of applicants three and four regarding the gang related activities of applicant four’s father and his brothers was particularly persuasive. It was detailed, presented without exaggeration and demonstrative real emotion indicative of genuine lived experienced, and is consistent with information before me regarding the activities of that gang, set out below. The evidence of applicants two, three and four was also consistent with country information regarding the experience of women in Brazil, which is discussed further below. Their claims were also supported by the reports from their treating psychologist.
I accept that applicant two is a victim survivor of family violence perpetrated by her former partners, and that she is a victim survivor of a stranger rape which was not pursued by the police. I also accept that the father of applicant four and his brothers are members of a criminal gang. I accept that applicant three was sexually abused by the father of applicant four, and that he and his brothers were violent towards applicant two and three. I also accept that that applicant four is a victim survivor of sexual abuse by her cousins.
I accept that applicants two, three and four have ongoing mental health issues for which they are currently being treated.
Applicant four stated that during the last conversations she had with her father, he continued to threaten applicant two and she believed he remained active in criminal activities. I accept her evidence on these matters.
The evidence of applicant thee and four that they were bi-sexual was also credible. They respectively detailed their past and current relationships with men and women and applicant three provided a copy of her marriage and divorce certificates evidencing her relationship with a woman. I accept they are bi-sexual as claimed. I accept their most recent relationships have been with men, but they would continue to identify as bi-sexual in the future.
Gender based violence disproportionately affects women and girls.[4] High rates of gender-based violence are found to occur where women are accorded less value and access to power than men. Societal factors which support an inferior status for women and drive domestic and family violence include rigid stereotypes about the roles of women and men in the family and society, beliefs in dominant forms of masculinity and men’s control of decision-making, limits on women’s independent in public and private life and social attitudes condoning violence against women.[5]
[4] ‘Terminology’, Australasian Institute of Judicial Administration (AIJA), National Domestic and Family Violence Bench Book (2021).
[5] ‘Our Watch, Change the Story: A Shared Framework for the Primary Prevention of Violence against Women in Australia (2nd ed, 2021) page 36.
Brazil is a country of contradictions in terms of the status of women. As cited by the United Kingdom Home Office (UKHO) in their report, ‘Brazil is a country where a woman can become president; yet it also has one of the highest rates of femicide—the killing of women due to their gender—in the world’.[6] Men and women have equal rights and duties under the Constitution.[7] Reports state that the gender pay gap is narrowing and that, on average, women achieve higher educational attainments than men.[8] Women’s rights have also expanded in the home, work, labour market participation, and land ownership.[9] Women are able to participate in politics, and currently hold 15 percent of the parliamentary seats.[10] The President recently announced the free distribution of sanitary products, and various measures designed to address gender-based violence, including a national day of commemoration to raise awareness of this issue.[11]
[6] United Kingdom Home Office (UKHO), 'Country Information Note - Brazil: Background information, including internal relocation', 17 November 2020, (UKHO 2020 Report) page 50.
[7] Bertelsmann Stiftung Transformation Index (BTI), ‘Brazil Country Report 2024’, 2024 (BTI Report), page 25.
[8] BTI Report page 25.
[9] BTI Report page 25.
[10] BTI Report page 25.
[11] USDOS Human rights report page 24.
However, reports also state that employment opportunities for women are about 30 percent below parity with those of men, and that women remain at a substantial disadvantage in this regard.[12] In the past four years, equality of opportunity has been severely affected by rhetoric and actual policies of the previous Bolsonaro government, which were openly hostile to women.[13] For example, the former President has called women ‘idiots’, ‘tramps’ and stated they are ‘unworthy of rape, let alone equal pay’.[14] The former President was ousted in 2023 and, as noted above, the current President has made statements supporting women’s rights. However, the recent 2024 report by Bertelsmann Stiftung states that while living and working conditions for girls and women have improved, systematic discrimination against women remains a problem.[15]
[12] BTI Report page 25.
[13] BTI Report page 25.
[14] Tom Phillips, 'Stop this disaster': Brazilian women mobilise against 'misogynist' far-right Bolsonaro’, The Guardian, 22 September 2022.
[15] BTI Report page 25.
The UKHO report notes that violence against women, including intimate partner violence, is ‘endemic’ in Brazil.[16] The United States Department of State (UDOS) cites a March 2023 report stating that one-third of women older than 16 suffered physical or sexual violence from partners or former partners in their lives.[17] Multiple sources report that gender-based violence has actually increased in recent years to an ‘alarming’ extent.[18] Human Rights Watch stated that between January and June 2023, there 34,000 rapes of women and girls, representing a 15 percent increase compared to the same period in 2022.[19] Killings of women went up 2.6 percent, to 1,902, in the first part of 2023 and a third of these cases were registered as femicide.[20] In the same period, there were 263 attempted femicides and by October 86,593 reports of violence against women had been registered. [21]
[16] UKHO 202 Report, page 51.
[17] USDOS Human Rights Report pages 22-26.
[18] USDOS Human rights report page 22-26; Amnesty International, 'The State of the World’s Human Rights: April 2024', 23 April 2024 (Amnesty International 2024 Report), pages 104-109; Human Rights Watch (HRW), 'Human Rights Watch World Report 2024', 11 January 2024, 2024 (HRW 2024 Report) page 94; and Tiago Rogerio, ‘Violence against Women in Brazil reaches highest levels on record’, The Guardian, 18 July 2024.
[19] HRW 2024 Report, page 94.
[20] HRW 2024 Report, page 94.
[21] Amnesty International Report, pages 104-109.
Reporting in 2024 states that every single indicator of gender-based violence increased in 2023 compared with the previous year, including murder (0.8 percent), sexual harassment (48.7 percent) and stalking (34.5 percent).[22] Experts have also raised concerns that increasing levels of far-right activism in the political sphere, including a bill which is currently before Congress penalising rape survivors who seek a termination of a resulting pregnancy, will further increase levels of gender-based violence..[23]
[22] Tiago Rogerio, ‘Violence against Women in Brazil reaches highest levels on record’, The Guardian, 18 July 2024.
[23] Tiago Rogerio, ‘Violence against Women in Brazil reaches highest levels on record’, The Guardian, 18 July 2024
Brazil has laws in place to protect women and punish perpetrators of family violence. The law criminalises rape, including spousal rape and domestic or intimate partner rape and other forms of domestic and sexual violence.[24] It also criminalises physical, psychological, violence against women, as well as defamation and damage to property or finances by someone with whom the survivor had a marriage, family, or intimate relationship. The law also specifically criminalises the act of ‘femicide’ which is punishable by 12 to 30 years in prison.[25] The courts are empowered to issue protection orders, and as of November 2022 judges had granted more than 350,000 protective orders, which typically require suspected abusers to stay away from targeted women.[26]
[24] United States Department of State (USDOS), 'Country Reports on Human Rights Practices for 2023 - Brazil', ,22 April 2024 (USDOS Human Rights Report) pages 22-26.
[25] USDOS Human Rights Report pages 22-26.
[26] Human Rights Watch (HRW), ‘World Report- Brazil’, page 53
There are police stations dedicated exclusively to addressing crimes against women in each state secretariat for public security.[27] In Sao Paulo, there are approximately 131 women’s police stations.[28] In March 2023 police arrested more than 300 suspects accused of domestic violence in the state of Espirito Santo.[29] Reference centres and temporary women’s shelters are operated by state and local governments, and many have domestic violence hotlines.[30]
[27] USDOS Human Rights Report pages 22-26.
[28][28] Paula Macedo Barros and Antonio Vincius Barbosa, ‘National Policy to Combat Violence Against Women: Evidence from Women’s Police Stations’, Instituto de Pesquisa Economica Aplicada and Universidade Federal da Paraiba, 2023.
[29] USDOS Human Rights Report pages 22-26.
[30] USDOS Human Rights Report pages 22-26.
However, despite the above measures, sources such as the 2024 USDOS report, state that the laws are not effectively enforced.[31] In regard to protection orders, judges are required by law to decide requests within 48 hours, but most state courts take longer than that, with courts in some areas taking an average of 165 days.[32] Moreover, reports indicate that ingrained levels of violence and perceptions of ‘masculinity’ within the police force negatively impacts the effectiveness of their response to violence against women.[33] Women are often turned away at police stations, with some civil polices officers declining to register domestic violence complaints or request protection orders.[34]
[31] USDOS Human Rights Report pages 22-26.
[32] HRW 2024 Report page 94.
[33] Miriam Cruz, ‘Violence, Masculinity and Policeman with a capital ‘P’, Toxic masculinity in Brazilian Law Enforcement’, Women’s Liberation Now, 23 October 2021
[34] HRW, ‘Brazil: Domestic Violence Victims Denied Justice’, 21 June 2017 (HRW 2017 Report).
In some cases, there are insufficient resources allocated to responding to incidents of domestic violence and first responders do not respond at all to emergency calls.[35] Where police will accept a complaint, women are made to tell their stories in open reception areas. Many civil police officers receive no training on handling domestic violence cases, and in general, they are unable to keep up with the volume of complaints they do receive.[36] The women’s police units are overburdened, serving an average population of 210,000 women each, and they are unable to keep up with the demand.[37] Human Rights Watched noted in 2017 that according to police, most cases languish for years until they are eventually closed because the statute of limitations on the crime expires, without any prosecution.[38] At the end of 2022 one million cases of relating to family violence remained pending in court.[39] Further, as discussed below, there are high rates of police violence in Brazil and a 2019 study, published in 2024, determined that over 55 percent of women feared being victims of gender-based violence from the police.[40]
[35] HRW 2017 Report.
[36] HRW 2017 Report.
[37] HRW 2017 Report.
[38] HRW 2017 Report.
[39] HRW 2024 Report.
[40] Statista, ‘Are you afraid of suffering violence from the police?’, 2024, accessed 17 December 2024.
Most states in Brazil have enacted legislative protections for members of the LGBTQI+ community, and the country is generally open minded regarding diverse sexual and gender identities.[41] Same-sex marriage is legal, and the law provides the same rights and benefits to those offered to different-sex spouses in relation to inheritance and medical rights.[42] Members of the LGBTQI+ community can serve openly in the military, and there is a thriving community with LGBTQI+ friendly beaches, neighbourhoods, bars and clubs.[43]
[41] UKHO 2020 Report page 48
[42] USDOS Human Rights Report at page 35.
[43] LGBTQIA+ travel in Brazil | Intrepid Travel EN, accessed 17 December 2024.
Despite the legal protections and generally open views, Brazil has one of the world’s highest levels of violence against LGBTQI+ individuals, with transgender individuals being at particular risk.[44] Of the 2,536 complains registered with human rights group, ‘Dial 100’, between January to May 2023, one half were made in São Paulo, Rio de Janerio and Minas Gerais.[45] The USDOS reports that in 2022, about 256 LGBTQI+ were killed with the majority being gay men and women. Between January and June 2023, 139 members of the LGBTQI+ community were victims of violent deaths.[46] Members of this community also face discrimination in employment with about 33 percent of companies avoiding hiring LGBTQI+ individuals.[47] There are bans in place on conversion therapy, but reports remain of many conversion attempts either conducted or recommended by evangelical or catholic churches.[48]
[44] UKHO 2020 Report at pages 49; USDOS Human Rights Report, page 33-34; USDOS Overseas Security Advisory Council (OSAC), ‘Brazil Country Security Report’, 2024 (OSAC 2024 Report).
[45] USDOS Human Rights Report page 34-35.
[46] USDOS Human Rights Report page 23.
[47] USDOS Human Rights Report 35.
[48] USDOS Human Rights Report 36.
There are several established organised crime groups in in Brazil, including [Gang 1], which originated in São Paulo.[49] [Details deleted.][50] [Gang 1] is involved in drug trafficking, extortion, arms trading, kidnappings for ransom, and robberies. [51] There have been police operations to combat criminal groups, and some sources state that police are generally well equipped and responsive to this type of crime.[52] However, information also states that disparities exist across the states in terms of response capability and law enforcement resources for public security and it is not always effective.[53]
[49] UKHO 2020 Report [detail deleted]; BTI report [detail deleted]; OSAC 2024 Report; and [source deleted].
[50] [Source deleted.]
[51] [Source deleted.]
[52] UKHO, 'Country Policy and Information Note. Brazil: Actors of protection', 17 November 2020, [detail deleted]; IRBC Report; BTI Report [detail deleted];
[53] UKHO, 'Country Policy and Information Note. Brazil: Actors of protection', 17 November 2020, [detail deleted].
More generally, police forces are decentralised and under the control of state governments and while reports indicate that civilian authorities generally maintain effective control of the federal security, information is that police and security forces have committed numerous human rights abuses.[54] Human rights organisations reportedly accused police of using excessive force, violating human rights, and committing extrajudicial killings and information indicates that there are high rates of police violence.[55] In 2022, a total of 6,145 deaths were attributed to the police,.[56] The USDOS stated that for the first half of 2023, the number of deaths resulting from military and civil operations in São Paulo increased by nine percent from the same time in the previous year.[57] The Brazilian Public Security Forum reported that police (including federal, state, and municipal) killed 6,429 persons nationwide in 2022.[58]
[54]
[55] USDOS Human Rights Report page 4; HRW 2024 Report
[56] BTI Report page 6.
[57] USDOS Human Rights Report, at page 3.
[58] USDOS Human Rights Report, at page 3.
In this case I have accepted that applicants two and three and four are victim survivors of gender-based violence who will be returning to São Paulo province in Brazil. I have accepted that former partner of applicant two and members of his family are members of [Gang 1], an organised crime gang who operate out of São Paulo, but have influence throughout the country.
I have accepted that applicant two’s former partner continued to make threats against her after the cessation their relationship, and after her marriage to applicant one. I note that research on domestic and family violence states that abusive conduct forms part of a pattern of controlling behaviour that extends beyond the home and beyond the duration of a relationship.[59] Taking this into account and noting the past conduct of he and his family members towards applicants two and three, I find that they both face a real chance of significant physical and psychological harm and ill-treatment from them on return to São Paulo province now or in the reasonably foreseeable future.
[59] Kelly, Liz; Nicola Sharp and Renate Klein Finding the Costs of Freedom How women and children rebuild their lives after domestic violence 2014, Solace Woman’s Aid, as cited in the Australasian Institute of Judicial Administration (AIJA), National Domestic and Family Violence Bench Book (2021).
Applicant four stated that, unlike her mother and sister, she was not directly harmed by her father or her uncles in Brazil in the past. However, given she has now cut ties with her father, and has protected her mother, I accept this alters her circumstances and exacerbates the risk that she will face harm from he and his family on return to São Paulo. I find that applicant four also faces a real chance of significant physical and psychological harm and ill-treatment from her father and members of his family on return to São Paulo province now or in the reasonably foreseeable future. I find the harm they face amounts to serious harm, and that it is systematic and discriminatory.
I give weight to information above that: despite improvements in the areas of employment and education and the legal protections afforded to women, widespread gender discrimination remains a systemic issue in Brazil. I give weight to information that gender-based violence is endemic in Brazil, and rates of such violence are among the highest in the world and has been increasing in recent years. Violence against women in Brazil has widely been accepted as being gender-based, and this is demonstrated by the introduction of specific laws and policies which attempt to address this issue. Having read the country information discussed above, I find that ‘women in Brazil’ is a particular social group as that term is defined. I find that the shared characteristic is their gender, not a shared fear persecution. Though attempts are being made to address it, I nonetheless find that the deeply entrenched gender discrimination legitimises violence against women at the societal level. I therefore find that the essential and significant reasons for the real chance of harm against applicants two, three and four, is due to their gender and their membership of the particular social group of ‘women in Brazil’.
I give weight to information above and find that the real chance of harm to applicant’s two, three and four, will not be ameliorated by moving to larger cities or other areas of the country. [Gang 1] has significant influence throughout the country, as well as into neighbouring countries. I find that the former partner of applicant two (and father of applicant four) will have contacts through his gang to learn of their return to the country. I also find he will be motivated to find them whenever they are in Brazil. Moreover, on the above information, I find that the high risk of gender-based discrimination and violence also extends to other areas of the country. I find that the real chance of harm to applicants two, three and four relates to all areas of the country.
Having regard to the country information above that: gender-based violence laws are not effectively enforced; women are often turned away at police stations; there are insufficient resources allocated to responding to incidents of domestic violence and first responders do not respond at all to emergency calls; and there are high rates of police violence in Brazil with recent reporting that over 55 percent of women feared being victims of gender-based violence from the police, I find that effective protection measures are not available for the harm faced by applicants two, three and four.
I find that it would not be reasonable for applicants two, three and four to modify their behaviour, as to do so requires them to conceal an innate or immutable characteristic, being their gender. This is an impermissible modification for s 5J(3) of the Act and I find s 5J(3) does not apply.
I find that applicants two, three and four have a well-founded fear of persecution.
Applicants three and four have also raised credible claims to fear harm due to their sexuality. The country information above indicates that while Brazil is generally open minded towards members of the LGBTQI+ community, the country also has one of the highest rates of violence against LGBTQI+ individuals in the world, including in São Paulo. However, as I have found that applicants three and four satisfy the criteria for the reasons above, I do not need to further consider these claims or reach a concluded view on this matter.
For the reasons given above, the Tribunal is satisfied that each of applicants two, three and four is a person in respect of whom Australia has protection obligations. Therefore, they each satisfy the criterion set out in s 36(2)(a).
Complementary Protection Assessment: applicant one.
Having concluded that applicant one does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered whether he can satisfy the alternative criterion in s 36(2)(aa).
For the same reasons discussed above, I am not satisfied that [Partner A] or her family or their associations would seek out applicant one on return to Italy. I have found that he does not face a real chance of harm for this reason on return to Italy. As ‘real chance’ and ‘real risk’ involve the same standard,[60] I similarly find that this matter does not give rise to a real risk of harm for the purpose of s.36(2)(aa).
[60] MIAC v SZQRB (2013) 210 FCR 505
In any event, even if [Partner A] and her family or their associates do contact applicant one on his return, I consider that their past conduct is indicative of their future behaviour. I accept that in 2012 [Partner A] and her associates attempted to break into his home once and broke into his car, but these acts were not attempted again including in 2014, and I am not satisfied she, her family or their associates would engage in this conduct in the future. At most applicant one would receive hang up calls and have his doorbell rung at odd hours. While I accept these acts amount to low level harassment and would be stressful for applicant one, I am not satisfied that this conduct meets the definition of significant harm for s 36(2)(aa): it will not result in an arbitrary deprivation of his life, or amount to the death penalty or torture. Further I am not satisfied that it is cruel or inhuman treatment or punishment that intentionally causes pain or suffering or severe pain or suffering, or degrading treatment or punishment intended to cause extreme humiliation which is unreasonable.
I am not satisfied that there are substantial grounds for believing there is a real risk of significant harm to applicant one for the purpose of s 36(2)(aa) of the Act.
Member of the family unit of a person who meets s 36(2)(a) or (36(2)(aa): applicant one.
For the reasons set out above, the Tribunal is not satisfied that applicant one is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa).
However, the Tribunal is satisfied that applicant one is married to applicant two, and that he is her spouse as that term is defined in s 5F of the Act. They have been validly married since 2014 and have resided together as a couple recognised by their family, including applicants three and four, and their friends, since that time. The evidence provided during the hearing demonstrated to the Tribunal that they derive emotional and physical support from each other, and that they share a life together in a relationship that is genuine and continuing.
On the evidence I find that applicant one is the spouse of applicant two and is a member of her family unit as defined in reg 1.12(4)(a). Accordingly, applicant one is a member of the same family unit as the second named applicant for the purposes of s 36(2)(b)(i) of the Act.
As such, the fate of his application depends on the outcome of the second named applicant’s application. It follows that applicant one will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
CONCLUDING PARAGRAPHS
The Tribunal finds that the second, third and fourth named applicants satisfy the requirements of s 36(2)(a) of the Act.
The Tribunal finds that first named applicant satisfies the requirements of s 36(2)(b)(i) of the Act.
DECISION
The Tribunal sets aside the decisions under review and remits the applications for protection visas for reconsideration, in accordance with the orders that:
·(i) the second, third and fourth named applicants meet s 36(2)(a) of the Migration Act; and
·(ii) that the first named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.
Date(s) of hearing: 11 October 2024
Representative: Mr George Botros
ATTACHMENT - 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.
…
0
1
0