2117392 (Refugee)

2117392 (Refugee) [2024] AATA 4278 (25 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2117392

COUNTRY OF REFERENCE: Brazil
MEMBER:Rosa Gagliardi
DATE:25 September 2024
PLACE OF DECISION: Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 September 2024 at 2:25pm
CATCHWORDS
REFUGEE – protection visa – Brazil – particular social group – victim of a jealous criminal gangster – fear of killing – honour attack – state protection – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 November 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Brazil (a matter the Tribunal accepts) applied for the visa on 24 February 2017.
The delegate refused to grant the visa on the basis that even if the applicant was targeted by criminal groups as claimed, country information indicated that Brazil has a largely effective legal system and that he would be able to avail himself of any protection required.
The applicant appeared before the Tribunal on 20 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.
CRITERIA FOR A 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the definition of refugee in that he has a well-founded fear of persecution on return to Brazil now or in the reasonably foreseeable future and whether there is a real chance of serious harm consistent with s.36(2)(a) of the Act. Alternatively, the Tribunal is required to assess whether the applicant meets the criteria for complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims at the time of application
Asked in his application why he had left Brazil, his home country, the applicant wrote “to study English in Australia, Sydney”.
Asked what he thought would happen to him on return to his country, the applicant wrote:
·He had a big fight in Brazil in 2013 in the Samba school.
·After that some guys from the gangs were in his town trying to find him so he organised his flight to Australia because they said they would kill him.
·The gang was Primeiro Comando de Capital (PCC) and they command all of Sao Paulo and have members across all of Brazil.
·The applicant spoke to some friends who said the matter was not yet finished.
·His family had lived in Sao Paulo for 25 years but had to relocate to the north of Brazil.
·The police would not assist him because a large percentage are corrupt.
·If he files a report, the gang members will have access to the information.
·He cannot relocate within Brazil to avoid harm as the gang has connections across all states in Brazil, and in other countries such as Colombia.
Evidence at hearing
The applicant came to Australia in 2008 to study English and [subject 1]. The applicant had a [specified industry] background in Brazil. He stated he had intended to return to Brazil. He was living in Sao Paulo prior to coming to Australia. The applicant stated his mother returned to the north of Brazil and he has [specified family members] in Sao Paulo, but his father had died when the applicant was young.
The Tribunal observed that the applicant had lived in Australia for a lengthy period. He stated yes it had been 16 years. He stated he had made a lot of friends here. The applicant stated if destiny helped him, he might be able to return to Brazil one day.
The applicant stated he wanted to undertake English studies because it would help him with [his work] in Brazil. [Deleted], for example, were in English and it would have assisted his career. The applicant stated he finished his English studies, but he was having difficulties learning so he renewed his visa. The Tribunal asked what visa the applicant stayed on when the English courses ended. He stated he was doing [occupation 1], but he did not get his certificate even though he attended classes to the end.
The applicant stated he had always been lawful in Australia, and he had learnt [occupation 2] and [other occupations]; a bit of everything. In Brazil he went to the [specified college] but had never worked. He had taught in [this field] but was not used to working in physically demanding jobs. It was difficult because he had never had such responsibility.
The Tribunal asked why he could not return to Brazil. The applicant responded because he had a fight when he returned there on holidays in September/October 2013. He fought with a guy because he had texted a girl and the applicant did not know this girl was the ex-girlfriend of this guy. He went to the samba school (a carnival) and this guy told him he was going to kill him. The Tribunal asked whether the girl in question was in fact the applicant’s girlfriend, and he responded no. He had only dated her. He was afraid because a lot of motorbikes were passing his street and a lot of his friends were saying that this guy was trying to get revenge.
Asked the name of the girl involved he stated [Ms A]. He confirmed he had dated her but had never had a relationship with her. She agreed to go out with him, but this guy turned up and he was jealous. The applicant stated that everyone knew this person because he was in a gang. They punched each other and he said he was going to kill him. If a guy broke up with a girl in this gang the girl could not go out with anyone else in the community. The applicant stated that while he was aware of the gang member, he had had no personal dealings with him previously.
The name of the guy was [Mr A]. He came on his own and pushed him and started punching him on the face and on his body. The applicant stated he should have run away but he participated in the fight. The applicant stated he had suffered injuries as did [Mr A]. The applicant stated he did not go to the doctor or the police. He just used some cream for the bruising. The Tribunal expressed confusion that the applicant had not wanted to ensure his injuries were not serious. He stated it was not that bad that he would need a doctor.
The Tribunal asked the applicant to set the scene as to where the fight started, and he stated it was near a stage. [Ms A] ran away when the fighting started, and she did not try to help him. People tried to separate them to stop the fighting. After that he saw a lot of motorbikes passing his home at night.
The applicant stated after the physical altercation he walked home on his own and when he got his mother on seeing him was afraid. He had told her what happened. She did not suggest he go to the doctor either. He had to change his flight to come back to Australia earlier. The applicant stayed in Brazil for three months overall at the time. The Tribunal asked the applicant whether he had evidence that he had changed his flight and he stated he would have to have a look. It was a long time ago.
The Tribunal noted that these events occurred in 2013 and he lodged his application in February 2017 – at least three years after the claimed events involving [Mr A]. The applicant stated that when he returned to Australia, he still had a visa. He did not know about the possibility of the protection visa. The applicant opened [an occupation 2] company and he said he applied for a business visa, but it was refused. The agent tried to sell it to him for $25,000 but this was a visa for millionaires with business interests. He had everything; an ABN but it was not enough to get this business visa.
During the week he remained in Brazil after the fight, the applicant was afraid to show his face. He was a popular person. Everyone knew him. Even in Australia. The applicant stated despite being social he stayed at home with his mother. Asked if people came to the house, he said friends came to be with him and sometimes he went out carefully.
The applicant stated that maybe [Mr A] might try something against him. He was like a member of the mafia – the PCC at that time they were big, but now they were even bigger and controlled many states. The Tribunal expressed confusion why, if this person wanted to harm the applicant, he had not tried to stop the applicant from leaving Brazil. The applicant stated [Mr A] did not have that much control – not like the police. The applicant was afraid because they had a lot of crazy members who killed.
The Tribunal asked why he could not live with his mother in the north. The applicant replied that if he went north people would say look who has come back. The Tribunal asked whether [Mr A] was still alive, and he said that his friend told him that he was in gaol. The Tribunal asked the applicant why [Mr A] would continue to be interested in, or care about the applicant on the basis of a one-off fight that occurred many years ago. The Tribunal stated it would surmise that the applicant was not a high priority in the mind of [Mr A] if he were in prison. The applicant stated he had never kept in contact with that girl after the fight and the Tribunal queried why then he would be targeted after eleven years or so. The applicant stated that they had phones in prison, and they did business inside gaol. It would be easy for him – maybe he ([Mr A]) does not care - but if he got to know the applicant was around, he could message someone to get to him. The Tribunal noted that [Mr A] had bigger problems now and would not want to raise the ire of the authorities further.
The Tribunal noted the country information in the Departmental decision which reflected that Brazil had a functioning criminal justice system and that if it was found that the applicant could access effective state protection in his home country, then Australia would not owe him protection. The Tribunal emphasised that it was finding it hard to accept the applicant would continue to be on the radar of this man, [Mr A]. Asked if the applicant had received threats in Australia, he stated no. In Australia you had effective protection but not in Brazil. The applicant stated that they had a lot of complaints in the international community about the legal system there. A lot of human violations happened in Brazil. From the outside it appeared that the country operated under a democracy but behind the scenes it was different. The applicant referred to corruption in the judiciary as well. He stated a lot of things functioned in Brazil but not a 100 per cent. It was not like Australia.
Asked again about the delay in applying for protection in Australia the applicant replied he had a visa, so he did not think he had to apply for a protection visa. When his visas for remaining in Australia had all finished, he wanted to return to Brazil, but his friends said that [Mr A] was going up in the organisation and besides he was doing quite well with [occupation 2] here. He was with a girlfriend for 7 years in Australia, but she went back to Brazil and was waiting to see what would happen to him to decide where they would live. If he stayed in Australia she would come back here. When asked, the applicant stated that his girlfriend lived in the south of Brazil. When asked if she had been harmed by anyone, the applicant stated that he thought her mother had been followed some time ago, but they had not experienced anything like the mafia. The applicant did not provide any further detail.
The Tribunal confirmed with the applicant that the reason he could not return to Brazil was because he thought [Mr A] and his associates could harm him and asked him to consider whether he had evidence that [Mr A] was still interested in him. In any event, he could go and live with his girlfriend in the south. The applicant answered it would not be 100 per cent safe. The PCC was not there yet but they were close to the border of Paraguay. The applicant stated that the PCC operated in his mother’s state. It was his dream to return to San Paulo, but he was afraid. If there was no chance (of remaining here), he would take the risk.
The applicant stated that Brazil was unsafe as there were places in which even the police could not enter. San Paulo was very dangerous. The applicant stated if that guy died, he could then go back. The Tribunal asked whether the applicant knew for how many years [Mr A] would be detained as it appeared he had no profile on the internet. The applicant responded he did not know how long his term of incarceration was, however, he could try to see if his friends could get evidence of [Mr A’s] existence.
The Tribunal noted that ultimately the authorities had dealt with [Mr A], though the Tribunal does not find it has evidence that [Mr A’s] charges were related to the applicant’s encounter with him. The applicant stated that they took things personally. The Tribunal noted that might be the case but given he was imprisoned if he took things personally, he would have had to kill the judiciary and the police. The Tribunal noted that the applicant claims he had socialised with an ex-girlfriend of a PCC gang member. After [Mr A] had punched him what would have been the motivation to continue pursuing the applicant. The applicant stated it was to do with honour. A girl cannot start another relationship with someone else.
The applicant then recounted the difficulties he had experienced in Australia even at one point ending up homeless.
FINDINGS AND REASONS
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70).
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal finds that the applicant has been attempting to gain a migration outcome in Australia, studying English and other courses since 2008. The applicant claims that at some point when he no longer held a valid student visa, he entrusted an agent who told him that he could remain in Australia on a business visa because the applicant had set up [an occupation 2] business. The agent had not told the applicant, however, that such a visa was not appropriate as the visa was for those entering Australia with significant funds, which the applicant did not have. If it is the case that the applicant was misled by such an agent and that the applicant was in effect defrauded of a significant amount of money, the Tribunal would urge the applicant to seek redress via the migration agents’ regulatory body (Office of the Migration Agents Registration Authority, MARA, Office of the Migration Agents Registration Authority (mara.gov.au), to lodge a complaint. The matter is relevant to the Tribunal’s inquiry in so far as it demonstrates that the applicant has been attempting to secure a migration outcome to Australia as the Tribunal has no jurisdiction to remedy what might have occurred in relation to another visa class.

The Tribunal finds that it does have significant credibility issues with the applicant’s claims that:
·He had a fight with a person named [Mr A], a member of the PCC some time in September/October 2023 because he was out with [Mr A’s] ex-girlfriend, [Ms A], at a Samba school near a stage.
·The applicant was threatened he would be killed.
·His family had to relocate north of Brazil.
·Motorcycles were passing outside his home in the immediate aftermath of the physical altercation intended to threaten the applicant.
The Tribunal finds it difficult to accept that the applicant (while the agent might have acted unscrupulously by playing on the applicant’s vulnerability and wish to remain in Australia), would not have been steered by others in his Brazilian community in Australia or the community in general to lodge a protection visa application earlier than he did on

24 February 2017, if he genuinely feared for his life after returning to Australia in 2013, instead of waiting close to 3 years to do so. The applicant at hearing insisted on putting forward his claims in English even though an interpreter was on hand in case there was any difficulty at all, and the Tribunal found the applicant’s language skills in English were most sound. Further, the applicant has completed English studies in Australia and the Tribunal is unable to determine what would have held the applicant back from lodging a protection visa application on return from Brazil in 2013, after the events he claims happened where his life was threatened. A cursory examination of the Department of Home Affairs’ website would have guided the applicant to the appropriate visa, in his case, a protection visa.
The applicant responded at hearing that he was on a visa before lodging a protection visa, but whatever the visa held at the time by the applicant, it was clearly not a permanent visa, which the applicant claims he needed due to having a well-founded fear of returning to Brazil. A student visa or any other temporary visa would not have granted the applicant the durable and sustained protection he claims he needs because he fears for his life.
The Tribunal finds it implausible that the applicant would have kept remaining in Australia oblivious to the status of his temporary visas until suddenly in February 2017, he was finally able to lodge a protection visa. While this matter is not determinative of the review, the Tribunal places some adverse weight on this matter given the lengthy delay in lodging his protection visa application on his return to Australia after 2013 when it appears that the applicant’s avenues for remaining in Australia had narrowed, and the applicant was searching for a means of achieving a migration outcome.
The applicant has also been in Australia since 2008, apart from the trip he made to Brazil in 2013 when he contends that he was involved in a physical and verbal altercation with someone high up in Primeiro Comando de Capital (PCC) – a notorious criminal gang in Brazil - over a girl the applicant was simply being friendly with, and who he claims happened to be the ex-girlfriend of this gang member. The applicant has been in Australia for a lengthy period and the Tribunal accepts he has made friends here and has enjoyed the lifestyle and the opportunities to benefit economically, and that the applicant may not want to return to Brazil after this time. Given the weakness of the applicant’s claims, however, the Tribunal finds that this protection application was lodged for the sole purpose of maintaining his presence in Australia.
The Tribunal accepts that the PCC operates throughout Brazil and that a criminal by the name of [Mr A] also exists in light of the documentation presented by the applicant recently, consisting of an arrest warrant because [Mr A] had contravened the terms of his home arrest. Beyond these two claims, however, the Tribunal does not accept the applicant’s claims that he had ever had any interaction with [Mr A] and the PCC over [Mr A’s] ex-girlfriend or for any reason.
The country information shows that the PCC was founded on 31 August 1993 by eight inmates in the annexe of the Taubate House of Custody, known as “Pirsanhao”, considered the most secure in the state, located 130 kilometres from the city of Sao Paulo.[1] Also:
[1]
At first, the PCC was known as the “Crime Party”. They claimed that it wanted to fight oppression within the Sao Paulo prison system and avenge the deaths of he one hundred and eleven prisoners killed on 2 October 1992 in the “Carandiru massacre”. This happened after the Military Police killed 111 inmates in Pavilion 9 of the now-defunct Sao and evil Paulo House of Detention. The group used the Chinese symbol of the yin-yang balance in black and white. It is considered “a way of balancing good and evil with wisdom”.
…
Around the early 2000s, the PCC began to express solidarity with another prison gang, the Red Command (Comando Vermelho, CV). They also originated in Brazilian prisons during the 1970s. They then adopted its slogan of “peace, justice and freedom”, and started advocating revolution and the destruction of the capitalist system.
With this change in doctrine, the PCC began to carry out attacks on public buildings as another tool for exerting pressure. In the 2000s, the ambition became to take control of organised crime, especially drug trafficking.
The leadership of the PCC changed in November 2002, when the group was taken over by the current leader of the organisation, Marcos Willians Herbas Camacho, “Marcola”, also called the “Playboy”.
….
In subsequent years, the PCC grew in power and sophistication. This was thanks to a supposed truce with Sao Paulo police and its ability to conduct business virtually unimpeded in Brazil’s impoverished prisons. In the early 2010s, the group began to expand abroad. They started setting up drug and arms trafficking operations in neighbouring countries such as Bolivia and Paraguay.
During the 2010s, the PCC also made attempts to influence politics in Sao Paulo state. As it increased its revenues and membership, the gang began to emerge as the most powerful criminal organisation in Brazil.
In the second half of the decade, the PCC began to commit increasingly violent acts. The group was found guilty of a series of armed robberies in Paraguay in 2015. In early 2016, a video surfaced online showing the beheading of a teenager. This was allegedly in connection with a feud between the PCC and its one-time ally, the First Catarinense Group (Primeiro Grupo da Catarinense, PGC)…[2]
[2]
The Tribunal is therefore in no doubt that the PCC operates across borders, is ruthless and has made in-roads in politics and arms and drug trafficking.
The applicant’s claims about the altercation with [Mr A] were, however, general and lacking in specificity. The Tribunal had to prompt the applicant to tell it the name of the girl he was with when he was attacked and also to provide the name of the person who had attacked him over the girl. His account lacked the kind of spontaneity that the Tribunal would have expected of someone who claims he had interfaced with a high-profile criminal who had the power to kill him.
Furthermore, the applicant has submitted limited credible third party or other evidence that the applicant was ever pursued by someone called [Mr A] and that motorbikes passed his home menacingly after the claimed altercation. The applicant’s claims that his family had to relocate to the north of Brazil because of the applicant’s claims he was in a fight with [Mr A] are also not supported and the Tribunal finds this claims falls away given the Tribunal does not accept that the applicant was ever involved in any punch up with [Mr A] or anyone from the PCC or any other criminal organisation.
The Tribunal acknowledges that the applicant does not have to corroborate his claims to be believed. Nonetheless, the timing of the applicant’s application, together with the limited evidence submitted to support his case, raises serious concerns in the Tribunal’s mind about whether any of the events involving [Mr A] and a claimed ex-girlfriend had ever occurred and the Tribunal rejects that they did.
For example, the applicant claims that his mother was aware of what had happened to him after he went home with injuries from his altercation with [Mr A] but there is little before the Tribunal to indicate that she had been affected by the state her son had returned home in due to a violent brawl with a member of PCC, so much so that she wanted to support the applicant’s claims for protection to ensure he was able to secure permanent protection in Australia. The Tribunal finds such realistic support is missing from the applicant’s narrative and claims.
The applicant claimed at hearing he has friends in Brazil who are up to date with the events involving [Mr A] so it is perplexing that such friends have also not leant their voice in support of the applicant to ensure that his life would be saved, and the applicant would not need to return to Brazil.
The Tribunal’s concerns about the applicant attempting to achieve a migration outcome is also reinforced by the fact that the applicant has been in a long-term relationship with a woman who is now living in Brazil and is awaiting the outcome of the applicant’s protection visa to be able to determine their future and where they will live. The applicant’s ambivalence about the country of their joint future does betray that the applicant has contemplated returning to Brazil, whereas had the applicant had a genuine and abiding fear of persecution in his home country, the Tribunal finds the applicant would have been unequivocal in his statements that he could never return to Brazil now or in the reasonably foreseeable future and that she would have to come to Australia if they wanted the relationship to continue.
The applicant expressed a similar equivocation when he stated his dream was one day to return to Brazil. The applicant stated that he possibly could return to Brazil if [Mr A] died. If [Mr A] was intent on killing the applicant, however, the Tribunal rejects that he would not have tasked others in his criminal gang to act on his behalf whether he was alive or dead. The PCC is clearly a network of operators who coalesce around similar interests and given the power of this criminal organisation, the Tribunal does not accept that [Mr A] would have acted alone and that the revenge to have been exacted on the applicant had to be undertaken by [Mr A] personally. The applicant himself had stated that even from gaol, [Mr A] could operate and carry out his plans so it is inconsistent that the applicant would say that if [Mr A] died then he could consider returning to his home country.
The applicant also claimed that he changed his flight in 2013 to return to Australia earlier than planned because he feared [Mr A] and remained in Brazil only one week after the claimed incident with the gangster. The Tribunal accepts that such evidence might be difficult to obtain some eleven years after the event, nonetheless, the applicant does not appear to have made any effort to search for such evidence or to explain why he was not able to submit it. In any event, the Tribunal does not accept that the applicant ever made alternate arrangements to return to Australia virtually immediately after his altercation with [Mr A] because the Tribunal rejects that the applicant was ever involved in a physical scuffle with such a person or anyone else in Brazil in 2013 or at any time.
The Tribunal also finds it implausible that the applicant would not have sought assistance from a medical facility or from the authorities had a criminal set upon him in a jealous rage as claimed. When the Tribunal raised the matter of why the applicant did not have his injuries tended to, he downplayed their significance stating they were not that bad. The Tribunal does not accept that had the applicant ever been involved in a fight with a criminal associated with the PCC, the applicant would not have suffered some injuries warranting investigation, or that his mother on seeing him return home would not have implored him to seek medical assistance.
The Tribunal accepts that the police in Brazil are not reliable and certainly not 100 per cent reliable as stated by the applicant at hearing. The country information shows that dozens of police officers and over 100 alleged drug traffickers have been arrested over six years in northeast Brazil, spreading fears that security forces are colluding with criminals in increasingly complex ways across the country.[3]
[3] ‘Brazil Case Illustrates Struggle with Corrupt Police’, by Chris Dalby, 14 February 2023, InSight Crime, Brazil Case Illustrates Struggle With Corrupt Police (insightcrime.org).
Further:
On February 2, 17 members of the military police and 14 suspected drug traffickers were detained in the state of Ceara during the latest round of Operation Genesis, an ongoing security operation aiming to dismantle corruption within the police.
The detained officers were allegedly bribed by a drug trafficking gang for “privileged information” on their criminal rivals, allowing the gang to dominate the drug trade in parts of Ceara’s state capital, Fortaleza…according to a press release by the Ceara Attorney-General’s Office. The officers also sold weapons and ammunition that they had seized from criminals, the press release stated.
The number of arrested police has piled up since Operation Genesis began in 2016. At least 63 military police officers have faced charges of drug trafficking, robbery, weapons, trafficking, and criminal association…[4]
[4] ‘Brazil Case Illustrates Struggle with Corrupt Police’, by Chris Dalby, 14 February 2023, InSight Crime, Brazil Case Illustrates Struggle With Corrupt Police (insightcrime.org).
Hence, as put to the applicant at hearing, the country information as reflected in the Departmental decision does show that efforts against organised crime by the authorities (and as shown above even when it involves the authorities themselves) have been made.
The UK Home Office wrote in November 2020:
2.3.9 The state has taken reasonable steps to establish and operate an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm and to which persons in general Page 8 of 31 have access. This includes enacting criminal law and judicial procedural codes, and operating functioning law enforcement agencies and judiciary.
2.3.10 Therefore, despite weaknesses in the effectiveness of accessing the criminal justice system, in general, the state is willing and able to provide effective protection. Persons, however, who fear the militias and other organised criminal groups, and live in places controlled or influenced by these groups may not be able to access protection and the state may be unwilling and/or unable to provide protection in these areas.[5]
[5] ‘’Country Policy and Information Note, Brazil: Actors of Protection’, Version 1.0, November 2020, UK Home Office, CPIN Template - January 2020 (publishing.service.gov.uk).
In terms of Sao Paulo, the Sao Paulo Military Police (SPMP) is the largest police force in Brazil and one of the largest in the world, employing over 138,000 personnel who employ sophisticated telecommunications methods to reduce crime.[6]
[6] ‘Case Study: Sao Paulo Military Police, Brazil’, São Paulo Military Police, Brazil, Case Study (taitcommunications.com).
In these circumstances the Tribunal is not strictly undertaking an analysis in terms of whether the applicant can access effective (as opposed to perfect) state protection, rather it is assessing whether the system in Brazil is so inimical to community members raising any complaint or report about violence committed against them that it is plausible that the applicant would have been too fearful to seek some assistance from the authorities had he actually experienced harm from a person called [Mr A], and been threatened with death by him. Even if the applicant had not had a positive response from the police, the Tribunal finds it difficult to accept that the applicant would not at least have sought out the authorities to say his life was in danger, further undermining his account that he was ever involved in a physical and verbal altercation with a crime gang leader called [Mr A] for any reason.
The Tribunal has also taken into account that the applicant’s mother has been able to live in Brazil (although not Sao Paulo currently) without the applicant putting forward any evidence that his mother was in danger at all from [Mr A], the PCC or anyone else in Brazil. The Tribunal does not accept that had the gangsters and his associated resources in the PCC wanted to seriously harm or kill the applicant, that they would not have attempted to find the applicant’s mother to ask her the whereabouts of the applicant to pursue him. This matter also undermines the applicant’s claims that he is of any adverse interest to anyone called [Mr A] or the PCC or anyone in Brazil. The applicant claimed his girlfriend in Brazil had not been harmed by any criminal organisation because she lived in the south of the country. The Tribunal finds, however, that had there been any intent to harm the applicant by such a powerful organisation as the PCC, they would have approached the applicant’s girlfriend to locate the applicant.
The applicant gave vague evidence at hearing about his girlfriend’s mother being followed at some point, however, provided few details about such an incident and given the applicant himself has stated that it was not mafia related does not accept that any such incident relates to the applicant’s claims.
As previously acknowledged an applicant does not have to prove their claims with supporting evidence. On the other hand, the Tribunal cannot make his claims for him. The Tribunal has taken into account the evidence the applicant has submitted most recently after the hearing, to wit, the arrest warrant for [Mr A]. The applicant has not provided an explanation as to how he obtained the copy of the arrest warrant for [Mr A] and the associated material, but the Tribunal is prepared to accept that these are genuine documents.
The document indicates that [Mr A] was last released [in] November 2023, and that the sentenced individual, [Mr A], serving his sentence in an open system “under the modality of home confinement, failed to appear to comply with the conditions of the open system. The Public Prosecutor’s Office requested the suspension of the system, and the appointed defence, duly notified, did not respond. The total disregard of the sentenced individual for fulfilling the sentence is evident, as he has not appeared at the registry for over three (3) years. Therefore, I hereby PROVISIONALLY SUSPEND the system in which the sentenced individual, [Mr A], ID Card number xxxx Is currently placed, ordering the issuance of an arrest warrant as a consequence to restore the retributive, socialising, preventative, and neutralising character of the sentence. I determine the imprisonment of the sentenced individual and their placement in a CLOSED system”, presumably being in a prison.
The Tribunal finds that this evidence does point to the existence of a criminal person called [Mr A], and even in the absence of probative evidence that [Mr A] is a high- or low-profile member of the PCC, is prepared to accept that he is part of the PCC. Beyond this, however, the Tribunal is not satisfied that the documents submitted support the applicant’s claims that he has a well-founded fear of persecution from this person or his criminal gang, were he to return to Brazil now or in the reasonably foreseeable future on account of the applicant’s race, religion, nationality, membership of a particular social group, or political or imputed political opinion. The Tribunal is not satisfied that the applicant has established that there is a link between himself and [Mr A] and the PCC or any other organised criminal or gang in Brazil.

If the Tribunal had accepted (and it does not) that the applicant had been the victim of a physical attack by [Mr A] because the gangster was enraged, the applicant had gone out socially with the gangster’s ex-girlfriend, and still holds a grudge against the applicant (a matter that is unsupported and not credible), the Tribunal would have considered whether the applicant was a member of the particular social group – “victim of a jealous criminal gangster”. The Tribunal accepts that honour and jealousy might motivate someone to harm a perceived love rival. However, as the Tribunal has rejected that the applicant was ever under attack and was threatened with death by [Mr A], it follows that the Tribunal does not accept that the applicant is a member of any such particular social group because the Tribunal has rejected that the applicant’s path ever crossed with [Mr A] for reasons of his being out with [Mr A’s] ex-girlfriend, [Ms A], or for any other reason.
And even if the Tribunal is wrong in its findings (and the Tribunal does not accept that it is) and the applicant had physically fought with [Mr A] over a girl, it is claimed these events occurred in 2013, which is so remote in time as to render the claims implausible. Even if the Tribunal had accepted the applicant had been beaten by [Mr A] or any other member of the PCC, the Tribunal does not accept that the applicant would continue to be on the radar of a criminal who some eleven years ago had an unpleasant and physical exchange with the applicant – a criminal who is already in the sights of Brazilian law enforcement.
Furthermore, the Tribunal notes that it is not purported the applicant is currently under house arrest but, according to the documentation submitted by the applicant, has fled custody altogether and not reported to the registry as required. The Tribunal finds it fanciful, therefore, that being in hiding from the authorities, [Mr A] would risk emerging from hiding to be potentially captured by the authorities again, for the sole purpose of wreaking revenge on the applicant for a perceived slight, because he dared to be seen in public with [Mr A’s] ex-girlfriend.
The Tribunal finds it is fanciful that [Mr A] who would have business interests in drug trafficking and other organised criminal activity and who has succeeded in evading the authorities would be so reckless as to search for the applicant on his return to Brazil on the basis of some issue of honour and pride after eleven years. As the Tribunal put to the applicant at hearing, it is likely that someone in that position (who at the time of hearing the applicant claimed was in gaol), would have more overreaching concerns about his illegal business enterprises and would not want to draw attention to himself on account of having caused serious harm to the applicant to square some previous perceived insult.
The Tribunal finds that had [Mr A] been detained (as he clearly was) that he would want to be free to continue his operations and not compromise his freedom on account of an individual of little consequence to his operations such as the applicant. In any event, as the Tribunal has stated previously, it has rejected the applicant’s central claim that he was ever unwillingly or otherwise involved with any criminal at a Samba Festival in 2013, when the applicant returned to Brazil on account of his association with the criminal’s ex-girlfriend and that the criminal ever held or continues to hold a grudge against the applicant and would seriously harm or kill him on return to Brazil, now or in the reasonably foreseeable future or that the applicant witnessed in Brazil after the altercation, motorcycles from the PCC passing his home to menace him, or that the applicant’s family had to relocate north of Brazil or that the applicant’s girlfriend’s mother in the south of the country was ever followed by anyone related to organised crime.
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).
Complementary protection
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 has also considered whether it has 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 the applicant will suffer significant harm. The real risk test imposes the same standard as the real chance test applicable to the assessment of a well-founded fear of persecution.
The Tribunal having rejected the applicant’s claims, individually and in their totality, finds that it is not satisfied that there are substantial grounds for believing there is a real risk the applicant will suffer significant harm due to any adverse profile with any criminal individual or organisation or state or non-state actors in Brazil. The Tribunal rejects that the applicant will be arbitrarily deprived of his life; or that the death penalty will be carried out on him; or that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment by any individuals criminals or otherwise or their associated organisations, because it has rejected the applicant’s claims that he was ever of interest to a criminal member of PCC or any other organised crime group or individual.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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.

Rosa Gagliardi
Member

Postscript: If the applicant should need assistance in terms of advice about his residency status or assistance to lodge a complaint with MARA, the applicant may be able to seek assistance from Legal Aid ACT, Welcome to Legal Aid ACT, or telephone 1300 654 314.
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.
…

‘Primeiro Comando da Capital (PCC): From Sao Paulo to the World’, Javier Sutil Toledano,
28 March 2024. Primeiro Comando da Capital (PCC): From São Paulo to the World - Grey Dynamics.

[2024] AATA 4278

25 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction