2203807 (Refugee)

The applicant, a bisexual woman from Brazil, sought a protection visa in Australia. She claimed to have experienced harm in Brazil due to her sexual orientation, including job loss and threats, leading to depression and panic disorder. Despite seeking assistance from authorities, she was told her complaints did not warrant police intervention. The applicant also argued that she would be unable to restart her life in Brazil, facing difficulties in employment and living in fear of escalating violence due to her sexual orientation, and distrusting the government and police. The matter was heard by the Tribunal.

The central legal issues before the Tribunal were whether the applicant met the criteria for a protection visa, specifically whether she had a well-founded fear of persecution for reasons of membership in a particular social group, and whether Australia had protection obligations towards her. This involved assessing the credibility of her claims regarding her experiences in Brazil, the nature of the harm she feared, the availability of effective protection within Brazil, and whether she could reasonably modify her behaviour to avoid such harm. The Tribunal also considered whether the applicant had a right to enter and reside in a third country, which would negate Australia's protection obligations under section 36(3) of the Migration Act 1958.

The Tribunal found the applicant to be generally credible regarding her experiences as a lesbian in Brazil. It accepted that while Brazil has no laws criminalising consensual same-sex conduct, there is a high level of anti-LGBTI+ violence, discrimination in employment, and a prevalence of hate crimes and harassment by law enforcement. The Tribunal concluded that the applicant's membership in the social group of lesbians, defined by their sexual orientation, was an innate and fundamental characteristic, and that this membership was the essential and significant reason for the persecution she feared. It determined that the persecution involved serious harm, including threats to liberty and significant physical harassment, and that such harm was systematic and discriminatory. The Tribunal was satisfied that there was a real chance of serious harm throughout Brazil and that effective protection measures were not available due to prejudice within law enforcement and the judiciary. Furthermore, it found that the applicant could not be expected to conceal her sexual orientation, as this would conflict with a fundamental characteristic of her identity. Consequently, the Tribunal found the applicant to be a refugee within the meaning of section 5H(1) of the Act.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act 1958, meaning Australia has protection obligations towards her as a refugee.