2203661 (Refugee) - [2025] ARTA 1162

2203661 (REFUGEE) [2025] ARTA 1162 (20 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2203661
Tribunal:General Member M Bailey
Date:20 May 2025

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

Statement made on 20 May 2025 at 11:15am
CATCHWORDS
REFUGEE – protection visa – Brazil – landowner/farmer – threats, robberies, attempted kidnapping and father’s and applicant’s land invaded by radical land reform group members – police inaction and corruption – relocation and periods living in other countries – teenaged child’s medical condition – country information – violent conflicts between landowners and group common – no physical harm to applicant and father – continued legal ownership of land – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
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 7 March 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 20 January 2017. The delegate refused to grant the visas on the basis that the first named applicant (applicant) did not 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 second named applicant was accepted to be a member of the same family unit as the applicant. However, as the applicant did not engage protection obligations, the second applicant did not satisfy s 36(2)(b) or s 36(2)(c) of the Act.
The applicants lodged a review application with the former Administrative Appeals Tribunal (AAT) on 15 March 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.
The applicant appeared before the Tribunal at the Brisbane Registry on 27 March 2025 to give evidence and present arguments.
BACKGROUND
The applicant is a [Age]-year-old female from Goias state, Brazil. The second applicant, currently [Age] years old, is her son. A copy of the second applicant’s birth certificate was provided to the Department of Home Affairs (Department) evidencing the applicant as his mother. Both applicants arrived in Australia [in] December 2016 on Visitor (subclass 600) visas.
The applicants provided copies of their Brazilian passports to the Department. I am satisfied that the applicants are citizens of Brazil and that Brazil is their receiving country for the purposes of assessing their protection claims.
CLAIMS AND EVIDENCE
Evidence before the Department
According to the protection visa application, the applicant was born in Goiania, Goias state. Her family members residing in Brazil are listed as her mother and one daughter born in [Year]. She has one older sister residing in [Country 1]. The applicant completed high school in [Year]. She owned and operated [farms] from 2007 to 2009 and 2010 to 2016. She resided in [Country 1] between July 1994 to July 1995 ([Part 1 of Country 1]); January 2000 to February 2002 ([Part 2 of Country 1]) and April 2002 to July 2006 ([Part 2 of Country 1]). Between July 2006 to July 2007 the applicant resided in [City 1, Country 2].
Regarding why she left Brazil, she stated in summary that her father was a landowner and [stock]-breeder. In ‘1994’ their land was invaded by members of the ‘MST’ (Landless Workers Movement). They tortured 2 farm managers and killed all the [stock]. The MST forcibly took possession of the land and issued death threats to her family. These threats have continued for many years.
Regarding harm experienced in Brazil, she stated that:
i.In December 1999 she was threatened by MST members in front of her house, and they damaged her car.
ii.In December 2009, after her father had passed away, she was warned by a friend that 3 armed men were looking for her and wanted to invade the farm where she was living. They came to the farm, broke things in the house and camped in front of the entrance to prevent her from returning. She lost possession of this land.
iii.On 5 July 2012, MST pointed a gun at her and tried to kidnap her. She managed to escape but they stole her car. They kept calling and threatening to kill her and her children if she called the police.
iv.On 6 September 2014, while in her car after leaving the shops with her son, she was approached by a man who pointed a gun at her. She and her son exited the car and the man stole her car and other belongings including her house keys. She reported this incident to the police (copy of police report provided) but they took no action.
v.On 21 November [year not specified] she was approached by MST near her farm. They threatened to kill her if she returned to the farm. She called the police but they refused to assist her unless she paid them money. The police in Brazil are corrupt and cannot offer protection. They threatened to harm her if she continued to denounce the MST.
Regarding whether she tried to move to another part of Brazil to seek safety, she stated that she once tried to move to Rio but the MST are in 24 states of Brazil and they found her. Regarding what she fears on return to Brazil, she stated that she and her son will be harassed, threatened and physically harmed by the MST. The police would not protect her and the MST could locate her throughout the country.
The applicant provided a written statement setting out further details of her claims. Relevant additional information from this statement is summarised below:
i.Her father, who passed away a long time ago, was a farmer and owned several rural properties. She has [brothers].
ii.About 40 years ago, her father’s property in Tocantins state was invaded by more than 300 armed MST members. They killed [stock], tortured the farm managers and sexually assaulted one of their wives. Two of the farm managers were killed by the MST. Her father reported this to the police, but they did nothing. Her father had to sell the farm to the government who gave it to the MST. However, the MST continued searching for her father and learnt that he had other properties in Goias state. The applicant named 4 other farms owned by her father.
iii.Her father always received threatening calls from the MST. In 1994 her father sent her to study in [Country 1] for her safety. In July 1995, after returning to Brazil, her family moved several times because of MST threats. Between December 1995 and December 1999, they lived in [City 2], Goias state. She finished high school and opened a [shop]. Her daughter was born and she was a single mother. She travelled regularly to [Country 1] in an attempt to stay safe. However, there were many occasions where the MST threw bottles of petrol at her car while she was driving. The always called the police but they did nothing.
iv.In December 1999, she exited her house to find her car damaged. She received a call threatening her and her daughter if she reported this to the police. She realised this was the MST. In fear, she moved with her daughter to Rio de Janeiro but 15 days later the MST found her.
v.The threats became worse; she was followed many times from her house to the shopping centre. She had no choice but to leave Brazil. In January 2000 she and her daughter moved to [Part 2, Country 1]. Her father’s farm in Brazil was attacked by the MST. She returned to Brazil in February 2002 for 2 months to help her father, leaving her daughter in [Part 2, Country 1]. She returned to [Part 2, Country 1] in April 2002. The threats ceased for a while because the MST could not find them.
vi.In July 2006 she moved with her daughter to [City 1, Country 2] where she worked as [an occupation]. She returned to Brazil 3 times because her father was unwell. He passed away in July 2007. She was left to administer the farms because her brothers had no interest in helping and she had lost contact with them. She moved into one of the farms near [Town 1] and tried to keep a low profile.
vii.Life was calm until [Month, Year]. She was pregnant with her son and living at the farm with her daughter. She was warned by a friend to leave the farm as 3 armed men from the MST were in town were looking for her and intended to invade the farm. The MST forcibly took possession of the farm. Later the government purchased the farm to give it to the MST.
viii.Her son was born premature and suffered many complications. He was [medical condition] and had to remain in intensive care for 2 months. After he was discharged from hospital, they moved to a small farm near [Town 2].
ix.On 5 July 2012, while visiting her mother in Goiania city, the MST tried to kidnap her because they found out she had sold the farm and wanted money. Two men pointed guns at her but she screamed and refused to get in the car. They stole her car and kept calling her, threatening to kill her and her children and to not contact the police. She sought help from the police, but they refused to make a report unless she paid money.
x.She rented out the farm and moved to an apartment in [City 2]. On 6 September 2014, while in her car after leaving a shop, she was stopped by a man with a gun. She recognised him from the previous kidnap attempt. He stole the car and other belongings.
xi.She moved to Rio de Janeiro with her children to seek safety. In April 2015 she started threatening receiving calls, stating they knew where she was. She returned to Goiania and decided to leave Brazil. She applied for a tourist visa to Australia but had to leave her daughter in Brazil as she was studying.
xii.On 20 November 2016 she was threatened by the MST to not return to the farm or they would kill her. They quickly packed and departed for Australia, with stops in several other countries because she feared being followed. The day after they left (21 November 2016) the MST invaded the farm and stole several items. She made an online police report but did not receive any response.
xiii.After arriving in Australia, she married an Australian man who ended up being abusive. She had to seek help from the police and court to obtain a Restraining Order against him.
xiv.The applicant and her son cannot return to Brazil as they will be tortured and killed by the MST.
The applicant provided copies of several supporting documents to the Department, including police incident reports dated 6 September 2014 and 12 January 2017, country reports regarding the MST, a medical report dated 14 June 2010 with respect to the second applicant and a character reference from a friend. The medical report issued by a doctor from the ‘[Medical Centre]’ in Goiania states that the second applicant suffers from a [medical condition] in his [body part] due to a ‘[cause]’ in both [body parts] with greater damage to [one of them]. He underwent surgery to both [body parts] on 27 May 2010.
The police report dated 6 September 2014 refers to an incident on the same date in [City 2] in which the applicant was assaulted by a person with a handgun while in her car. He told her this was a robbery. He allowed the applicant to remove her son and some belongings from the vehicle before stealing the vehicle. The police report dated 12 January 2017 is an English translation of an online report of an incident stated to have occurred on 21 November 2016 in [Town 2]. The report states that the applicant’s rural property was invaded, 3 gate locks broken and several electrical appliances stolen.
The applicant was not invited to attend an interview with the Department. In refusing the application, the delegate was not satisfied that the applicant’s claims related to any of the refugee reasons in s 5J(1)(a). Under the complementary protection assessment, the delegate found that the applicant could obtain protection from the Brazilian authorities such that there was no real risk of significant harm.
Evidence before the Tribunal
Pre-hearing evidence
As part of the review application the applicant provided a 1-page typed statement reiterating her claims to fear harm from the MST and expressing her disagreement with the delegate’s finding that she could obtain effective protection from the Brazilian authorities. She extracted parts of the delegate’s reasoning regarding the effectiveness of state protection and referred to various articles reporting on the lack of police action in response to violent crimes and police corruption. Reports relating to the conduct of the MST together with links to various videos showing violent acts by the MST were provided. The applicant also submitted a copy of the 12 January 2017 police report previously submitted to the Department and court documents issued in September 2019 relating to the issue of Violence Restraining Order against her ex-husband and a ‘[Medical Certificate]’ issued in 2018 for the second applicant.
In a completed ‘Pre-hearing information form’ dated 6 February 2025 the applicant stated (in summary) that the main reason she fears returning to Brazil is the threat posed by the MST which is a ‘powerful and violent group in Brazil with strong political influence’. She believes the MST will kill and possibly torture her if she returns. She has been a target of this group for may years because of land disputes and has received direct threats. She also fears the MST could harm her son. She is deeply concerned about police corruption in Brazil and does not believe she could obtain protection from the police. The current President has publicly expressed support for the MST.
Evidence at Tribunal hearing
The applicant confirmed that she prepared the protection visa application and supporting statement herself and received no assistance.
Regarding her family, she stated that her father passed away in 2007 and her mother passed away 2 years ago. Her sister resides in [Country 1] as a citizen. Her 3 brothers continue to reside in Brazil. She has lost contact with all her siblings. Her daughter is currently living in Australia, having arrived in 2017 as a student. Prior to 2017, her daughter lived with her mother in Goias state. Regarding her marriage in Australia, she stated that she divorced her husband in around 2020 following incidents of domestic violence.
The applicant confirmed that she resided for 3 periods in [Country 1] as outlined in her protection visa application. She lived in [Country 2] for approximately one year because she had a [partner]. She returned to Brazil after her father’s death. When asked about the farmland owned by her family, she stated that they no longer own any land because of the MST invasions. When the MST invades the land, the government buys the land at a cheap price. Two of her father’s farms were sold to the government – one when she was a child and another after her father’s death. Regarding the small farm she was living on before she left for Australia, she stated that she left the property due to threats from the MST and they invaded it the following day.
Asked why she came to Australia in December 2016, she stated that she wanted to be as far as possible from Brazil because the MST were always looking for. She stated that the first time that she was personally targeted by the MST was in 2012 when the MST tried to kidnap her. Two men pointed a gun at her while she was visiting her mother’s house in Goiana and stole her car.
Asked why she was personally targeted by the MST, she stated that it was because of her father and her connection to him. About 40 years ago when she was a child (the applicant agreed this was around 1984), her father owned a lot of land which was violently invaded by the MST. This led to conflict between the MST and her father. The MST knew that her father owned other properties. Asked about her father’s experiences with the MST during this period, she stated that he had no permanent address, was always moving between the farms and had security for protection. She confirmed that her father was never physically harmed by the MST but reiterated that he had security and was always moving around.
I discussed with the applicant that her father has passed away and she has indicated that her family no longer owns any land. Asked why the MST would continue to target her, she stated that she thinks they are seeking revenge for the death of MST members during a past conflict. Asked whether she has any reason to think that is the case, she stated that it was because they were always targeting her. The applicant also clarified that she legally owns the small farm on which she was residing prior to her departure for Australia. She never sold this land to the government, but the MST invaded it and she believes they are currently occupying it.
I discussed with the applicant that she resided in Goias state for a significant period of time and the MST appeared to often be aware of her location. Asked why they did not harm her during this period if they were intent on seeking revenge, she responded that she always ‘looked after herself’ and tried to avoid exposure to the MST. Yet the MST always called, threatened her and came to her home. She stated that she had to ‘hide her entire life’ and was always moving to avoid harm. Asked whether she considered applying for protection while residing in [County 1], she stated no; she was young, did not have the knowledge and hoped things would get better.
I explained to the applicant that, while I have not made up my mind, I may not accept that she would be of any adverse interest to the MST if she were to return to Brazil, noting that almost 10 years have elapsed since her departure. She responded that she would continue to be targeted because of the previous conflicts, and they would still seek revenge because she is her father’s daughter.
Regarding the 2 police reports submitted, I discussed with the applicant that neither of them refer to the perpetrators being involved with the MST. She responded that this is because the police are corrupt and write whatever they want in the reports. Regarding the police report dated 12 January 2017, the applicant confirmed that she made this report online following her arrival in Australia. She agreed that she input the relevant information online. Asked why this report did not specifically refer to the perpetrators being associated with the MST, she stated that she did mention the MST but it wasn’t included in the report. I explained to the applicant that I may not give any significant weight to the police reports in terms of evidence that the MST was involved in these incidents.
Asked whether there is any other reason she cannot return to Brazil, the applicant stated that the problem is the MST. She would not be safe from them and the police would not protect her from the MST as they are corrupt and aligned with the MST. Asked whether there was anything further she wished to tell me, the applicant requested that I take into account that she works hard in two jobs to support her son who is [medical condition] and does not rely on welfare; she has survived domestic violence; makes a positive contribution to her community and has bought a small parcel of land in Australia as she wants to make a life here. I acknowledged these factors but explained that my role is limited to assessing whether she has a well-founded fear of persecution or a real risk of significant harm in Brazil.
FINDINGS AND ASSESSMENT

The issue in this case is whether either 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) 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 (DFAT) 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 the 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 that the applicant’s father owned several rural properties in Goias state and the neighbouring state of Tocantins. I accept that over 40 years ago (around 1984) the MST violently invaded her father’s property in Tocantins state and that her father subsequently sold the property to the government. This claim has remained consistent and is generally supported by country information regarding the MST, including that provided by the applicant and outlined below.
The MST (Movimento dos Trabalhadores Rurais Sem Terra) or Landless Workers Movement is an influential Brazilian social movement, officially founded in 1984, seeking agrarian reform through land expropriation. The MST aims to bring a radical transformation of land distribution in Brazil, where the ownership of agricultural land is characterised by extreme inequality. The MST relies on Article 184 of the Brazilian Constitution of 1988 which states that unused farmland should be expropriated and used for redistribution. The movement organizes marches, demonstrations, and awareness-raising campaigns to bring the issue of agrarian reform to public attention. However, its principal form of direct action is land occupation.[4]
[4] Britannica, Landless Workers Movement: Landless Workers Movement (MST) | Britannica
An MST land occupation involves a group of landless people (usually numbering between 500 and 3000) entering a large estate and occupying a piece of unused land. Given that it can take years for the rights to the land to be granted via the government land-reform organization ‘INCRA’ (Instituto Nacional de Colonização e Reforma Agrária), temporary camps known as acampamentos are formed. If the rights to the land are won, an assentamento (settlement) is formed, with each family gaining a plot of land of a minimum of 25 acres (10 hectares). As of 2014, the MST is reported to have led more than 2,500 land occupations with about 370,000 families and won nearly 18.75 million acres (7.5 million hectares) of land as a result of its direct action.[5]
[5] Britannica, Landless Workers Movement: Landless Workers Movement (MST) | Britannica
The MST is not favourably portrayed by the mainstream press in Brazil and is strongly opposed by the landowners through their political organ, the Democratic Ruralist Union. Although the movement is legal, MST is often depicted as undemocratic and revolutionary.[6] Land-related conflicts, including of a violent nature, between the MST and private property owners are reported to be common. While violence has been directed toward private landowners as evidenced by reports submitted by the applicant, it has also been inflicted on the MST. For example, 19 landless farmers were shot by military police in 1996 while taking part in a peaceful protest in Eldorado dos Carajás, Para state.[7]
[6] Britannica, Landless Workers Movement: Landless Workers Movement (MST) | Britannica
[7] Carlos Pestana Barros, Ari Francisco de Araujo Jr., and João Ricardo Faria, Brazilian Land Tenure and Conflicts: The Landless Peasants Movement, Cato Institute, 2013; Britannica, Landless Workers Movement: Landless Workers Movement (MST) | Britannica
I accept that another of the applicant’s father’s properties was sold to the government due to MST occupation following his death. I accept that the applicant’s father opposed the actions of the MST and consider it plausible that he had some confrontations or negative interactions with the MST in connection with his landholdings. However, I do not accept that the MST was specifically targeting the applicant’s father or his family members, including the applicant, since the occupation of the land in Tocantins state in around 1984. The applicant suggested to the Tribunal that she and her father were being targeted as revenge for the death of MST members in a previous conflict. However, she was not able to provide any probative basis for this belief, stating only that this was based on the ongoing targeting.
The applicant confirmed to the Tribunal that her father was never physically harmed by the MST, despite continuing to reside in Goias state between the incident in 1984 and his death in 2007. The applicant was not personally harmed by the MST during the many years that she resided in Goias state and in circumstances where she claimed the MST were frequently aware of her location. I do not consider it plausible that if the MST genuinely intended to seek revenge against the applicant and her father, they would be unable to physically harm them over the course of around 30 years.
I also have concerns regarding the applicant’s failure to seek protection or asylum in [Country 1] during three periods of residence between 1994 and 2006 in circumstances where she claims to have been in hiding since childhood due to ongoing threats from the MST. I acknowledge her response to the Tribunal that she was young and did not have knowledge at the time. However, considering she was in her [Age range] and with a young child during the latter periods of residence and claimed in her statement to the Department that she travelled to [Country 1] to seek safety, I am not convinced that this adequately explains this concern.
I accept the incidents as outlined in the two police reports submitted to be credible. I accept that in September 2014 the applicant’s car was stolen at gunpoint and in November 2016 her property in [Town 2] was subject to a home invasion and theft of various goods. However, based on the available evidence I do not accept that these incidents had any connection with the MST. The police reports do not include any reference to the MST and the applicant confirmed to the Tribunal that she personally completed the January 2017 report online following her arrival in Australia. While I accept that there is corruption in the Brazilian police, as acknowledged in the delegate’s decision, I am not convinced that this explains the omission of any reference to the MST in the police reports. I find these incidents to be generalised criminal acts. Country information indicates that crime and violent crime, including vehicle thefts and break-ins, are prevalent in Brazil.[8] As such, I do not accept that the applicant left her property in [Town 2] in November 2016 due to invasion by the MST.
[8] Statista, Crime and violence in Brazil – statistics and facts: Crime and violence in Brazil – statistics & facts | Statista
I accept that the applicant did not sell the property in [Town 2] to the government prior to her departure from Brazil in November 2016 and continues to legally retain ownership of this land. The applicant indicated to the Tribunal that she believes the property is occupied by the MST. However, considering my findings above regarding the incident in November 2016, I do not accept that the MST have occupied the property.
Considering all of the above, I do not accept that the MST have personally targeted or threatened either of the applicants in any form. It follows that I do not accept that the MST located and threatened the applicant when she moved to Rio de Janeiro or that they attempted to kidnap her while she resided in Goias state.
Refugee and complementary protection assessment
Considering my findings above, I am not satisfied that there is a real chance that the applicants will face harm from the MST in the reasonably foreseeable future if they were to return to their home area of Goias state. I am not satisfied that they have a well-founded fear of persecution and are therefore not refugees as defined in s 5H(1).
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 applicants will suffer significant harm. The real risk threshold for complementary protection has been held to equate to the real chance threshold under the refugee criterion.[9] For the same reasons discussed above, I am not satisfied there is a real risk the applicants will suffer significant harm from the MST as a necessary and foreseeable consequence of their removal to Brazil.
[9] MIAC v SZQRB [2013] FCAFC 33
While I have accepted that the applicant experienced incidents of crime in 2014 and 2016, I have found these to be generalised criminal acts. Considering the country information referenced above regarding the prevalence of crime in Brazil, I accept there is at least a real risk that the applicant will experience incidents of a similar nature in the reasonably foreseeable future if she returns to Brazil. However, I find this to be a risk faced by the population of Brazil generally and am not satisfied that it is faced by the applicant personally as required by
s 36(2B)(c).
The applicants have not raised any additional claims to fear harm on return to Brazil and I am satisfied that none arise on the accepted facts. I accept the applicant’s evidence regarding her circumstances in Australia, including her experiences of domestic violence and her contributions to society. However, as discussed at the hearing, these factors are not relevant to my assessment of whether she engages protection obligations with respect to Brazil.
Conclusions
For the reasons given above I am not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decisions not to grant the applicants protection visas.
Date of hearing: 27 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.
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36     Protection visas – criteria provided for by this Act
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(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.
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