2202154 (Refugee) - [2025] ARTA 1610

2202154 (Refugee) [2025] ARTA 1610 (13 July 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2202154
Tribunal:General Member M Bailey
Date:13 July 2025

Place:Brisbane
Decision:The Tribunal affirms the decision under review

Statement made on 13 July 2025 at 1:16pm
CATCHWORDS
REFUGEE – protection visa – Brazil – decision on papers without holding hearing – fears general crime and violence – subjected to armed robbery and a home burglary – witnessed man being shot and killed – mother has been a victim of crime – high rates of crime with financially motivated crimes being prevalent – does not have a profile or characteristic of those most targeted by violence – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
BBK15 v Minister for Immigration and Border Protection [2016] FCA 680
Kopalapillai v MIMA (1998) 86 FCR 547
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245; [2015] HCASL 114
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 (delegate) on 31 January 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 11 March 2021. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) or s 36(2)(aa) of the Act. The applicant lodged a review application with the former Administrative Appeals Tribunal (AAT) on 17 February 2022. He was represented by a registered migration agent. A copy of the delegate’s refusal decision was provided to the AAT as part of the review application.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
On 13 March 2025 the applicant was advised that his file was being prepared for allocation to a Tribunal Member. He was requested to complete a ‘Pre-hearing information form’ (Pre-hearing form). The applicant submitted the completed Pre-hearing form on 19 March 2025.
On 19 May 2025 the applicant was given notice of a hearing to be held at the Tribunal’s Brisbane Registry on 12 June 2025 and asked to complete a ‘Response to hearing notice form’ (Hearing Response). On 2 June 2025 the applicant’s representative provided a completed Hearing Response in which the applicant confirmed his attendance.
On 10 June 2025 the applicant’s representative informed the Tribunal that the applicant no longer wished to attend the hearing. The Tribunal wrote to the representative on 10 June 2025 advising that, in the absence of a request for the Tribunal to make a decision without holding a hearing or withdrawal of the review application, the hearing would proceed. The Tribunal drew the applicant’s attention to the information in the hearing notice regarding the consequence of failing to appear at the hearing and requesting the Tribunal to make a decision without a hearing. The hearing notice stated that if the applicant wished the Tribunal to make a decision without holding a hearing, he could request this in the Hearing Response. It was noted that if he were to request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in his absence, this does not guarantee he will receive a favourable decision.
On 10 June 2025 an amended Hearing Response signed by the applicant’s representative, was submitted in which the applicant stated that he will not participate in the hearing and requests the Tribunal to make a decision on the papers without holding a hearing (Amended Hearing Response). On 11 June 2025 the Tribunal confirmed receipt of the request and advised the representative that, based on the Amended Hearing Response, the hearing will be cancelled and the Member will proceed to make a decision on the available evidence. It was noted again that this does not guarantee the applicant will receive a favourable decision.
The circumstances in which the Tribunal may reach a decision without a hearing are set out in s 106 of the Administrative Review Tribunal Act 2024 (ART Act). They include where an applicant requests the Tribunal to make its decision without holding a hearing of the proceedings: s 106(3) ART Act. On the basis of the information in the Amended Hearing Response, I am satisfied that the applicant has requested the Tribunal to make its decision without holding a hearing. I am satisfied that the circumstances in s 106(3)(b)(ii) of the ART Act are met.
The Tribunal must also consider whether it appears that the issues for determination in the proceedings can be adequately determined in the absence of the parties to the proceeding: s 106(3)(c) ART Act. In reviewing a decision to refuse to grant a protection visa, the issues which the Tribunal is required to determine are:
i.Whether the applicant has a well-founded fear of persecution as outlined in s 5J of the Act with respect to their receiving country (s 36(2)(a) of the Act); and
ii.If they do not satisfy s 36(2)(a), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to their receiving country, there is a real risk they will suffer significant harm (s 36(2)(aa) of the Act)
In this case it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of a hearing. The evidence available to the Tribunal, as outlined below, allows me to determine the applicant’s identity and receiving country and form conclusions about whether he engages protection obligations under
s 36(2)(a) or 36(2)(aa) of the Act without seeking further evidence or submissions from the applicant.
I find that the requirements in s 106(3) of the ART Act are met and have therefore proceeded to make a decision without holding a hearing.
BACKGROUND
The applicant, [an age]-year-old male, arrived in Australia [in] September 2016 on a Student (subclass 500) visa.
The applicant provided a copy of his Brazilian passport to the Department of Home Affairs (the Department) in support of his protection visa application. The delegate found the applicant to be a citizen of Brazil. Based on the available evidence I am satisfied that the applicant is a citizen of Brazil, and that Brazil is his receiving country for the purposes of assessing his claims for protection.
CLAIMS AND EVIDENCE
Evidence before the Department
The applicant was represented by a registered migration agent in relation to the protection visa application. Relevant biographical information from the protection visa application and a ‘Form 80 – Personal particulars for assessment including character assessment’ dated 17 February 2021 is summarised below:
i.The applicant is from Osasco, Sao Paulo, Brazil.
ii.His ethnicity is Portuguese, and religion is Christian.
iii.His parents and one [sibling] reside in Brazil. He has never married.
iv.He completed high school in Sao Paulo in [year]. He has completed English studies in Australia between September 2016 and January 2018.
v.He was employed in several [Occupation 1] roles in Sao Paulo between 2014 and 2016.
The applicant’s claims for protection were outlined in a Statutory Declaration dated 17 February 2021. In summary he stated that he felt dangerous in Brazil a few times which makes him not want to return. He has been robbed and ‘had a gun on my had [sic] where they left everything that I had at that time’. His mother has also ‘been in front a gun situation where we could not do anything’. When he was a child, he saw a ‘guy die by gun shots’ which caused him to feel traumatised for a while. Four men entered his home and robbed everything. The police do not have sufficient resources or time to look after the population in Sao Paulo. It is very hard for the Brazilian police to maintain records given the amount of reported crime. He feels safe in Australia and wishes to remain.
The applicant was not invited to attend an interview with the delegate. In refusing the application, the delegate considered a range of country information regarding general crime and violence throughout Brazil, including in the applicant’s home area of Sao Paulo. The delegate also had regard to a November 2020 report by the UK Home Office regarding the effectiveness of laws and security forces in Brazil. The delegate concluded that the applicant could obtain effective protection from the Brazilian authorities in regard to future incidents of crime such that he did not have a well-founded fear of persecution or a real risk of significant harm.
Evidence before the Tribunal
In the Pre-hearing form, in response to whether he had any further information regarding his claims for protection, the applicant stated (in summary) that he is not feeling confident to return to Brazil because it is not safe for him and his family. His parents cannot support him or his family. Brazil is a dangerous place to live. The government is stealing from people and doesn’t care about people’s quality of life. Everyday millions of people are robbed in the street and people are murdered. No additional information was provided by the applicant in support of his review application.
REASONS AND FINDINGS
The issue in this case is whether the applicant
engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in

s 36(2)(aa) of the Act. For the following reasons I have concluded that the decision under review should be affirmed.
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. Relevant provisions of the Act are extracted in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the Department’s ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, 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.
Assessment
As outlined in s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of their claims and to provide sufficient evidence to establish the claims. The Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, 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 made out.[1]
[1] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
I have considered the available evidence as outlined above. Based on the country information cited in the delegate’s refusal decision regarding the prevalence of crime in Brazil including in Sao Paulo, I accept the applicant’s claimed experiences while residing in Brazil to be credible. I accept that he was subject to an armed robbery and a home burglary, and witnessed a man being shot and killed during his childhood. I also accept that his mother has been a victim of crime. Sao Paulo, like other major cities in Brazil, experiences high rates of crime ranging from petty theft to homicide, with financially motivated crimes such as armed robberies and home burglaries being prevalent.[2]
[2] Overseas Security Advisory Council, Brazil 2020 Crime and Safety Report: Sao Paulo, 27 November 2020
Sources referenced by the delegate indicate that levels of violence are particularly high in poor neighbourhoods known as favelas with victims of violence being predominantly young, black and poor.[3] This is consistent with more recent country information which indicates that Afro-Brazilians are disproportionately affected by crime and violence.[4] Other groups disproportionately affected by violence are members of the LGBTI community, investigative journalists reporting on crime and corruption, and activists involved in land rights/environmental issues.[5]
[3] Sources cited in delegate’s refusal decision, p 3
[4] Freedom House, Freedom in the World 2025 – Brazil; US Department of State, 2023 Country Reports on Human Rights Practices: Brazil
[5] Sources cited in delegate’s refusal decision, p 3; Freedom House, Freedom in the World 2025 – Brazil; US Department of State, 2023 Country Reports on Human Rights Practices: Brazil
Based on the available evidence, I find that the applicant does not have any profile that would cause him to be disproportionately affected by violence. The applicant is of Portuguese ethnicity and had the financial means to travel to Australia as a student. He has not raised any claims to have been involved in activities that would cause him to be personally targeted for violence.
I find that the applicant fears generalised violence or crime on return to Sao Paulo. I am not satisfied that he fears persecution for any of the reasons in s 5J(1)(a) of the Act. I am therefore not satisfied that he is a refugee as defined in s 5H(1) of the Act. I have therefore considered the complementary protection criterion in s 36(2)(aa) which requires substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Brazil, there is a real risk that the applicant will suffer significant harm. ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
I accept that the applicant faces a risk of generalised violence on return to Sao Paulo. However, I find this to be a risk faced by the population of Brazil generally and not by the applicant personally. In circumstances of generalised violence, the Courts have found that
[6] SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [10] – [14] (Upheld in the refusal of special leave to appeal: SZSPT v Minister for Immigration and Border Protection [2015] HCASL 114); BBK15 v Minister for Immigration and Border Protection [2016] FCA 680 at [30]
s 36(2B)(c) of the Act requires an applicant to demonstrate that they face a particular risk of harm because of a characteristic which distinguishes them from the population generally. The provision is therefore directed toward circumstances in which the risk of harm is one shared by the general population, as opposed to one in which the applicant is exposed to harm in an individual or personal sense.[6] As above, I have found the applicant does not have any characteristic or profile that would cause him to face a particular risk of violence.
In the circumstances, I find that s 36(2B)(c) applies and am therefore not satisfied that the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of his return to Brazil.
The applicant has not claimed to fear harm for any other reason if he returns to Brazil and I find that no other protection claims arise on the facts.
Conclusions
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or 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.
Representative for the applicant: Mr Anthony Takchi (MARN: 0639252)
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.
…