2202181 (Refugee) - [2025] ARTA 1384

2202181 (REFUGEE) [2025] ARTA 1384 (16 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2202181
Tribunal:General Member M Bailey
Date:16 April 2025

Place:Brisbane
Decisions:First named applicant:
The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the first named applicant meets s 36(2)(aa) of the Migration Act.
Second and third named applicants:
The Tribunal affirms the decisions under review in relation to the second and third named applicants.

Statement made on 16 April 2025 at 2:47pm
CATCHWORDS
REFUGEE – protection visa – Brazil – fear of harm from ex-husband – violence, threats and criminal connections – apprehended violence order – continued threats after departure – applicant’s and ex-husband’s families live in close proximity – estranged from father and sibling and no other support – consistent and credible claims – country information – gender-based violence and criminal gangs – relocation possible – complementary protection – protection by authorities would not reduce risk to less than real – limited education, no employment record and limited to no savings – psychological effects of past harm – relocation not reasonable – members of family unit children departed Australia and now living in third country – no substantive assessment of claims – two more Australian citizen children – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(a), (aa), (2A), (2B)(a), 65, 359A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 1 February 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 11 April 2017. The delegate refused to grant the visas on the basis that none of the applicants engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa).
The applicants lodged a review application with the former Administrative Appeals Tribunal (AAT) on 18 February 2022. 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 12 March 2025 the applicants were given notice of a hearing to be held on 31 March 2025 at the Tribunal’s Brisbane registry. They were asked to complete a ‘Response to hearing notice’ form (Hearing form). A completed Hearing form was submitted advising that the first named applicant (applicant) will attend the hearing. The Hearing form stated that the second and third named applicants (second and third applicants) will not attend the hearing.
The applicant appeared before the Tribunal at the Brisbane Registry on 31 March 2025 to give evidence and present arguments. As advised in the completed Hearing form, the second and third applicants did not attend the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.
BACKGROUND
The applicant is a [Age]-year-old female from [City], Goias State, Brazil. The second applicant, currently [Age] years old, and the third applicant, currently [Age] years old, are her sons. The applicant last arrived in Australia, together with the second and third applicants, [in] January 2013 as a dependant on her partner’s Temporary Work (Skilled) (UC-457) visa. She had previously travelled to Australia on a UC-457 visa between February 2009 and June 2010 and July 2010 and November 2012. The applicant has not departed Australia since January 2013.
As discussed below, the second and third applicants departed Australia [in] July 2024 on Bridging (WE-050) visas and have not returned to Australia since that time. For the reasons below, I have not undertaken a substantive assessment of whether they engage Australia’s protection obligations.
The applicant provided certified copies of several Brazilian identity documents, including 2 expired Brazilian passports, to the Department of Home Affairs (Department) in support of the protection visa application. The delegate was satisfied that the applicant is a citizen of Brazil. There is no information before me to the contrary. I am satisfied that the applicant is a citizen of Brazil and that Brazil is her receiving country for the purposes of assessing her protection claims.
CLAIMS AND EVIDENCE
Evidence before the Department
Relevant biographical details from the protection visa application are summarised below:
i.The applicant was born in Goiania, Goias State and resided in [City], Goias state until her departure for Australia in 2009.
ii.Her family members in Brazil comprise her parents and one [sibling].
iii.She completed middle school in [Year] and was not employed in Brazil.
iv.Her relationship status is ‘Separated’ – the relationship commenced in 2004 and ended in 2013.
v.In addition to her 2 sons born in Brazil (the second and third applicants) she has a daughter born in Australia in [Year] who is an Australian citizen.
Regarding her claims for protection, the applicant stated that she fears returning to Brazil because her ex-husband, who has returned to Brazil, was violent toward her and threatened to kill her if she returns. She experienced violence from him throughout their relationship, including while in Australia. He is associated with criminal groups in Brazil, and she believes he will carry out his threats. Her family lives in the same city as her ex-husband’s family and it would not be possible for her to relocate to avoid harm because of his criminal connections.
A 5-page typed statement with additional details regarding her claims was submitted. Relevant information from this statement is summarised below:
i.She refers to her de facto ex-husband as a violent man and a male chauvinist. As their relationship developed, he started to beat her and demanded that she not tell her family or friends. He threatened to kill her whenever he wanted.
ii.She was afraid to tell anyone about the abuse and felt that she could not escape. They had 2 sons together, lived in a small town in Brazil and her husband had many criminal connections. Her husband’s grandmother lives next door to her mother and her husband would often stay there.
iii.Her husband was physically abusive toward her while they lived together in Australia. He cheated on her many times while in Brazil and Australia and forced her to terminate a pregnancy while in Australia. The violence became worse in 2012 when they moved to regional NSW for work. She was too afraid to tell anyone what was happening.
iv.In August or September 2013 her husband returned to Brazil for one month. Following his return, he forced her at knifepoint to drink a bottle of vodka and seriously beat her. Her sons were at home and saw the abuse. He threatened to kill her if she told anyone. The following week, after she received a call from a male friend, he threatened to kill her while holding a knife.
v.While her husband had left the house, she took her sons to a friend’s house and then went to another friend’s house whom her husband did not know. Her husband searched for her at all their Brazilian friends’ houses and found her sons. A friend took her to the police station to file a report and they applied for a Domestic Violence Order against her husband. They arranged a lawyer to help regain custody of her sons. She attended a court hearing at which her husband was present in a separate room for her protection.
vi.She stayed for about one month with a friend in Brisbane whom her husband did not know. She contacted him to try to regain custody of her sons, but he refused. He sent her threatening messages and eventually found out where she was staying.
vii.While staying with another friend in regional NSW, her husband and one of his friends came to the property and set her and her friend’s cars alight. She reported this to the police who commenced an investigation. Her husband departed Australia shortly afterwards. He wanted to take their sons with him but required her written consent.
viii.Following his return to Brazil, he continued threatening her via phone that if she did not send their sons to him, he would carry out his plans if she returned to Brazil.
The applicant provided various supporting documents as outlined in the delegate’s refusal decision. This included a copy of an Apprehended Violence Order (AVO) issued by the NSW Local Court [in] September 2013 against her husband; certified English translations of text messages between the applicant and her husband from October 2013; and photos of damaged cars from October 2013.
In August 2018 the applicant advised the Department that she had given birth to a second Australian citizen child in [Year].
In refusing the application, the delegate accepted that the applicant had been subjected to domestic violence from her husband. However, based on relevant country information, the delegate found that the applicant could obtain protection from the Brazilian authorities in relation to harm from her former partner if she were to return.
Evidence before the Tribunal
In the Hearing form the applicant indicated that she intended to provide letters from the second and third applicants. No additional evidence was submitted prior to the hearing. As discussed below, a summary of the content of these letters was provided by the applicant in her oral evidence to the Tribunal and copies of both letters were provided following the hearing.
The applicant confirmed to the Tribunal that she wrote the protection visa application and supporting statement herself. Regarding her family members in Brazil, she stated that her mother passed away in 2021. Her father and [sibling] continue to reside in Goias state. She has not had contact with them since her mother’s death as they were unhappy that she did not return for the funeral. She has no family in other parts of Brazil and has never lived in any other part of Brazil.
Regarding her children, she stated that her older sons (the second and third applicants) left Australia in around August 2024 and are currently living in [Country] with their father and [Age]-year-old half-[sibling]. They left because they were frustrated at being unable to work in Australia because of their visa conditions or help her financially.
Her daughter is currently [Age] years old, and her youngest son is [Age] years old. Both are Australian citizens based on their father’s citizenship. The applicant has separated from both of these relationships. The children maintain a relationship with their fathers.
Asked about her ex-partner, the applicant stated that he lived next door to her family’s home, and they started a relationship when she was a teenager. He started to become abusive after the birth of her oldest son. She told her mother about the abuse but did not seek any assistance from the authorities or any organisation while in Brazil. Asked about his claimed criminal connections, she stated that he was involved with gangs that deal in drugs and had a gun in Brazil. She has had no ongoing contact with him since he departed Australia in October 2013. She blocked his number after he sent her threatening messages.
Asked about any contact between her ex-husband and the second and third applicants, she stated that her sons only resumed contact with their father in 2024. The second applicant made the necessary arrangements with his father to renew his and the third applicant’s Brazilian passports and apply for visitor visas to travel to [Country]. She did not want them to go but they were frustrated with their situation in Australia and thought they would have better opportunities in [Country]. The applicant confirmed that her sons, particularly the second applicant, were aware that their father had been abusive to her. For that reason, they had no contact with him until recently. Based on what her sons have told her, the third applicant is attending school in [Country] and the second applicant has finished school and is waiting on a ‘green card’ so he can legally work.
Regarding the letters from her sons referred to in the Hearing form, the applicant stated that she has copies of them on her phone. She provided a summary of the content and sent copies of the letters to the Tribunal following the hearing. In separate handwritten letters, the second and third applicants refer to Australia being their home; they had to make a difficult decision to leave and move to [Country] because they were not able to work and help support their mother. They express sadness at being separated from their mother and siblings and hope that they can reunite as a family.
Asked why she feels unable to return to Brazil now given that her ex-husband lives in [Country], the applicant stated that she still fears harm from him if she were to return. He previously threatened to kill her, or have someone else kill her, if she returned. She believes he would carry out his threats despite him no longer living in Brazil. He has criminal connections and could easily arrange for someone to harm her. He would know if she returned to her home area because his family still live there.
I discussed with the applicant that I would need to consider whether she would face a real chance of harm from her ex-husband throughout Brazil. Asked how he would be able to locate her in another part of the country, she responded that he may be able to find her via his criminal connections. She wouldn’t feel safe anywhere in Brazil and wouldn’t be protected by the Brazilian authorities like she was here in Australia. Regarding her ability to move to another part of the country, she stated that she has no family or other supports outside Goias state and is not sure how she would survive.
Asked whether there was any other reason she could not return to Brazil, the applicant stated that her main concern is her ex-husband. She also raised that returning to Brazil would involve separation from her 2 Australian citizen children. Their fathers have indicated that they would not permit them to return to Brazil with her.
I discussed with the applicant in accordance with s 359A of the Act that according to the Department’s movement records, the second and third applicants departed Australia [in] July 2024 on Bridging visas which do not permit a right of re-entry. I explained that s 36(2) of the Act provides that an applicant must be in Australia to satisfy the criteria for grant of a protection visa. As her sons are located outside Australia and without a right of re-entry, I may find they are unable to satisfy this requirement. When invited to comment, the applicant reiterated that she did not want her sons to depart but they felt they had no opportunities in Australia. She hopes they can return one day so she can be reunited with them.
FINDINGS AND ASSESSMENT
Applicant
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 with respect to the applicant that the matter should be set aside and remitted for reconsideration.
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. 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, I have 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.
Factual findings
In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of an applicant’s claims. I have had regard to the AAT Guidelines on the Assessment of Credibility[1] and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[2] However, 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.[3]
[1] Administrative Appeals Tribunal, Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015
[2] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
[3] 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 accept the applicant’s claims regarding domestic violence from her ex-partner to be credible. These claims have remained consistent throughout the primary and review process and are supported by the AVO issued by the NSW Local Court in September 2013. The applicant became visibly distressed at times when providing her evidence to the Tribunal and I am satisfied that she was recalling events from her genuine lived experience.
I accept the extracts of text messages sent by her ex-partner in early October 2013 to be credible. These include several threats to ‘ruin’ her, catch her and end her life and murder her with a gun. As noted in the National Domestic and Family Violence Bench Book, where violence has occurred during an intimate relationship it is common for perpetrators to continue or escalate the violence after separation in an attempt to gain or reassert control over the victim or to punish the victim for leaving the relationship. Where women leave an intimate relationship and continue to experience violence after separation, their former partner may experience an intense sense of loss of control and the violent response may be severe, life-threatening, or lethal. A strong correlation has been found between separation and homicide.[4]
[4] National Domestic and Family Violence Bench Book, Factors affecting risk: Factors affecting risk - National Domestic and Family Violence Bench Book
The applicant’s claims are further supported by country information regarding gender-based violence as outlined in the delegate’s refusal decision and discussed below.

According to the US Department of State, extensive gender-based violence is a significant human rights issue in Brazil. This includes domestic or intimate partner violence, sexual violence and femicide. Despite legal protections, gender-based violence persists and has increased, indicating that the laws are not being effectively enforced. A recent study by the Brazilian Public Security Forum reported that one-third of women older than 16 suffered physical or sexual violence from partners or former partners in their lives. In 2022, there was an increase in all forms of violence against women, such as beatings and threats with a knife or firearm. In 2022, more than 1,440 women were victims of femicides: 80 per cent were killed by a current or former partner or a relative.[5]
[5] US Department of State, 2023 Country Reports on Human Rights Practices: Brazil
A July 2024 article in the Guardian reported that Brazil has recorded unprecedented levels of rape and other forms of gender-based violence for the second year running. According to data in the annual report by the Brazilian Forum on Public Safety, every single indicator of gender-based violence increased in 2023 compared with the previous year, including murder (0.8 per cent), sexual harassment (48.7 per cent) and stalking (34.5 per cent).[6]
[6] The Guardian, Violence against women in Brazil reaches highest levels on record, 18 July 2024
A June 2023 report by The World Bank found that violence against women and girls (VAWG) is a major concern in Brazil. Despite passing one of the most progressive laws on domestic violence in the region, the ‘Maria da Penha Law’, data shows that Brazil is ranked fifth among the countries with higher prevalence of VAWG. Between 1980 and 2013, more than 106,000 women were murdered in the country, and the number of femicides per year increased from 1,353 to 4,762 – an increment of 252 per cent in the period. Intimate partner violence is the most common form of violence. In Brazil, 33.4 per cent of women aged 16 or over have experienced some form of physical and/ or sexual violence perpetrated by an intimate partner and/or ex-partner in their lifetime. When also considering psychological violence (physical, psychological and sexual), this number reaches 43 per cent, the equivalent of 27.6 million women 16 years or older subjected to violence in their lifetime.[7]
[7] The World Bank, Gender-based violence Country Profile: Brazil, June 2023
Based on the consistency of the applicant’s evidence and my findings as to the overall credibility of her claims, I also accept that her ex-partner was involved with criminal gangs in Goias state. This is generally consistent with country information regarding the prevalence of drug-trafficking and other organised criminal groups in Brazil. A recent report by the UK Home Office indicates that more than 80 organised criminal groups exist in Brazil.[8] According to the US Department of State, these organisations, which are heavily armed, contribute to societal violence, and participate in vigilante justice. Victims are typically kidnapped at gunpoint, brought before a tribunal of gang members and then tortured and executed.[9]
[8] UK Home Office, Report of a fact-finding mission, Brazil: Organised criminal groups (OCGs), December 2024
[9] US Department of State, 2023 Country Reports on Human Rights Practices: Brazil
Considering the above, I accept that the applicant experienced domestic violence from her ex-partner from around 2006 until his departure from Australia in October 2013. I accept that he threatened to kill her if she returns to Brazil and that he had connections to criminal gangs in Goias state while residing in Brazil. I accept that her ex-partner is currently residing in [Country], together with the second and third applicants.
Refugee assessment
Based on the applicant’s circumstances, I find that if she were to return to Brazil, she is likely to return to [City], being her previous place of residence and the area in which her father and [sibling] continue to reside. For the following reasons, I am satisfied there is a real chance, being a possibility that is not remote or far-fetched,[10] that the applicant would be subjected to harm in the reasonably foreseeable future from her ex-partner if she were to return to [City].
[10] Chan Yee Kin v MIEA [1989] HCA 62
I have accepted that the applicant experienced domestic violence from her ex-partner for a significant period during their relationship, in both Brazil and Australia, and that he threatened to harm or kill her in late 2013. I acknowledge that over 10 years has elapsed since her ex-husband departed Australia and that he no longer resides in Brazil. However, I have taken into account that her ex-partner’s family continue to reside in close proximity to the applicant’s family in [City] and the applicant’s 2 sons, with whom I accept she would remain in contact, are residing with her ex-partner in [Country]. In these circumstances, I accept that her ex-partner would be aware of the applicant’s return to [City].
Considering his past conduct and threats of serious harm toward the applicant, I cannot discount that he continues to hold an adverse interest in her. In the circumstances, I am satisfied that there is at least a real chance that he could return to [City] to harm her or arrange for a third party to harm her given his previous criminal connections.
I have considered whether this real chance of harm relates to all areas of Brazil. Based on the available evidence, I find the real chance of harm to be localised to the applicant’s home area of [City]. I am not satisfied that her ex-partner would be in a position to locate and target her throughout Brazil, even allowing for his criminal connections in Goias and contact between the applicant and her sons. I am therefore not satisfied that the applicant faces a real chance of harm from her ex-partner in all areas of Brazil. As such, I find that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s 5H(1) of the Act.
Complementary protection assessment
As I have found the applicant to not be a refugee, I have 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.
The ‘real risk’ threshold for complementary protection has been held to be the same as the ‘real chance’ threshold under the refugee criterion.[11] For the same reasons outlined above, I am satisfied there is a real risk that the applicant will suffer harm in the form of physical violence from her ex-partner if she were to return to [City]. I find such harm to satisfy the definitions in s 5(1) of the Act of cruel or inhuman treatment or punishment or degrading treatment or punishment. I am satisfied that acts of violence by her ex-partner would be intended to inflict severe pain or suffering on the applicant or to cause extreme humiliation which is unreasonable.
[11] MIAC v SZQRB (2013) 210 FCR 505
I acknowledge the delegate’s view that the applicant could obtain protection from the Brazilian authorities such that there would not be a real risk of harm from her ex-partner. Considering the country information outlined above, I am not satisfied that the applicant could obtain protection from the authorities that would reduce the risk of harm from her ex-partner to less than a real risk. The above information indicates that, while there are laws in place to deal with gender-based violence, these have not been effective in reducing its prevalence.
I am satisfied that the real risk of significant harm from the applicant’s ex-partner is faced by the applicant personally and, as such, s 36(2B)(c) of the Act is not applicable. For the same reasons discussed above, I find that there would not be a real risk of significant harm from her ex-partner in other areas of Brazil. In accordance with s 36(2B)(a) of the Act, I have therefore considered whether it would be reasonable for the applicant to relocate to another area of Brazil.
As discussed in the Department’s Complementary Protection Guidelines, the relevant test for the purposes of s 36(2B)(a) is whether relocation is reasonable in the sense of practicable and will depend on the applicant’s particular circumstances and the impact of relocation on them. This is a fact intensive assessment, to inform an assessment of what the applicant is likely to face in the area of relocation in order to determine their ability to restart their life there.[12]
[12] Department of Home Affairs, Complementary Protection Guidelines, at [3.6.1]
I have taken into account that the applicant has never lived outside Goias state and has no family or other support networks outside her home area. Her education is limited to middle school, and she has no employment history in Brazil. She has resided in Australia since 2009 and has not had work rights since 2017. I accept that she is likely to experience challenges in gaining employment in Brazil and has limited if any financial savings. I accept her evidence that she has not had contact with her father and [sibling] since her mother’s death, such that she may not receive support from them if she were to return to Brazil.
I have also given significant weight to the applicant’s past experiences of harm from her ex-partner and its psychological effects. I note the following guidance from the UNHCR:
Psychological trauma arising out of past persecution may be relevant in determining whether it is reasonable to expect the claimant to relocate in the proposed area. The provision of psychological assessments attesting to the likelihood of further psychological trauma upon return would militate against finding that relocation to the area is a reasonable alternative. In some jurisdictions, the very fact that the individual suffered persecution in the past is sufficient in itself to obviate any need to address the internal relocation issue.[13]
[13] UNHCR, Guidelines on International Protection: “Internal Flight or Relocation Alternative” within the context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, 23 July 2003
While I do not have any psychological assessments or medical evidence before me, given my findings above regarding the applicant’s past experiences of domestic violence, I am satisfied that there is a likelihood of further psychological trauma if she were to return to Brazil, including due to a fear of her ex-partner locating her in the area of relocation.
Considering all the above factors, I find that it would not be reasonable for the applicant, in her particular circumstances, to relocate to another area of Brazil.
Conclusion: Applicant
I find that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal to Brazil, there is a real risk that she will suffer significant harm from her ex-partner. I therefore find that the applicant satisfies the complementary protection criterion in s 36(2)(aa) of the Act.
Second and third applicants
For the following reasons, I have concluded that the decisions under review should be affirmed in relation to the second and third applicants.
Under s 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. So far as is relevant to this matter, s 36(2) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa may only be granted if the applicant is in Australia.
As above, movement records indicate that the second and third applicants departed Australia [in] July 2024 on WE-050 visas and remain offshore. The applicant also independently advised the Tribunal during the hearing that her sons had departed Australia for [Country]. The information from the movement records was raised with the applicant at the hearing and she was provided with an opportunity to comment, as outlined above. Based on the available evidence, I am satisfied that the second and third applicants are not in Australia. Therefore, the applicants do not satisfy the requirements of s 36(2) and cannot be granted protection visas.
Having reached this conclusion, it is not necessary to consider the second and third applicants’ substantive case for the grant of the visas.
DECISIONS
With respect to the applicant, the Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets s 36(2)(aa) of the Act.
With respect to the second and third applicants, the Tribunal affirms the decisions not to grant the second applicant and third applicant protection visas.
Date of hearing: 31 March 2025
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.
…