2204123 (Refugee)

2204123 (Refugee) [2024] AATA 4433 (4 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Ashley Ognenovski
CASE NUMBER:  2204123
COUNTRY OF REFERENCE:                   Brazil
MEMBER:Mia Bailey
DATE:4 October 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act

Statement made on 04 October 2024 at 5:01pm
CATCHWORDS
REFUGEE – Protection Visa – Brazil – sexuality – gay – feared violence from father and members of the community – particular social group – a gay HIV positive man – homosexual men in Brazil – people with mental illness in Brazil – stigma and discrimination toward HIV positive people – HIV status would elevate his chance of experiencing serious harm – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 16 March 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 28 June 2017. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act. The applicant provided a copy of the delegate’s refusal decision to the Tribunal as part of the review application.
The applicant was represented in relation to the review. He appeared before the Tribunal, with his representative from [Organisation 1], via videoconference on 19 August 2024 to give evidence and present arguments.
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, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
s 36(2)(aa) of the Act. For the following reasons, I have concluded that the matter should be remitted for reconsideration.
Background and receiving country
The applicant is a [age]-year-old male from Belo Horizonte, Minas Gerais. He first arrived in Australia on a Tourist (subclass 676) visa on [date] June 2012. On 23 November 2012 he was granted a Student [visa] onshore. Between[date] December 2012 and [date] July 2016, he departed and returned to Australia on 5 occasions, including one trip to Brazil between [date] June 2016 and [date] July 2016.
The applicant presented his Brazilian passport and other identity documents to the Department in support of the protection visa application. Based on the available evidence, I find that the applicant is a citizen of Brazil, and that Brazil is his receiving country for the purposes of assessing his claims for protection.
Protection claims
The applicant has consistently claimed to fear returning to Brazil as a gay HIV positive man. His claims and evidence, as presented to the Department and the Tribunal, are summarised below.
Departmental evidence and decision
In a statutory declaration dated 28 June 2017, the applicant provided the following details:
i.He knew since childhood that he was attracted to males. He had his first same-sex relationship, which lasted for more than 3 years, when he was around [age] years old. They kept the relationship secret and pretended to just be friends. He feared the reaction of his family and people in the community as it is dangerous to be openly gay in Brazil. His parents, like many people in Brazil, are Catholic and believe that being gay is a sin.
ii.When the relationship ended, his boyfriend was very angry and told the applicant’s parents the truth. This is how his parents learnt, when the applicant was [age] years old, about his sexuality. His father was very angry and accused the applicant of being a disgrace and bringing shame to the family. He beat the applicant with an electric cable. For around 4 months he was unable to leave the house and was constantly watched. His father demanded that he stop being gay and be ‘normal’. He threatened to kill the applicant if he continued being gay. He had seen his father be violent and believed his threats.
iii.His father ordered the applicant to study to become a [occupation] as this was a ‘man’s job’ and would make him ‘straight’. The applicant did what he was told but could not change who he was. He pretended to his family that he had a girlfriend, who in fact was a female friend who was a lesbian, and dressed in ways that did not attract attention. Occasionally he had casual relationships with men, but always in secret as he feared violence from his father and members of the community.
iv.He once saw a man on the bus being beaten by a group of 4 men because he appeared effeminate and has seen many reports of gay people being murdered in Brazil. He would be scared to approach the police for help as they hold similar views to the community about homosexuality. For many years he wanted to leave Brazil so that he could live freely as a gay man.
v.When he came to Australia, he noticed the difference in attitudes toward gay people. After a period of adjustment, he felt able to dress and behave as he wished, without being scared of other people’s reactions. He was in a relationship with a man in Australia for over 2 years and did not feel the need to hide his true self.
vi.In April 2013, he was diagnosed with HIV which was a major shock. He was initially very sick and had difficulty paying for medication in Australia. In 2014 he started taking ‘Atripla’ which he bought from overseas but experienced a bad reaction to this medication, including frequent vomiting, weight loss, fatigue and depression. However, he had no choice but to continue taking the medication to control the HIV.
vii.In early 2016, he was able to access a newer medication, ‘Triumeq’ under a compassionate access program in Australia. He experienced a significant improvement in his health, with no side effects. He understands this medication is not available in Brazil and fears that if he can’t access the correct medication, he will become very sick again and be unable to work or support himself. His parents would not support him because they associate HIV with gay men, drug users and prostitutes and would consider it his punishment for being gay. Many people in Brazil and the church have the same views about HIV. There is a lot of stigma and discrimination toward HIV positive people in Brazil.
viii.In June 2016 he returned to Brazil to see if he could obtain free or reasonably priced HIV medication as he was worried about being unable to access medication in Australia if the compassionate access program ceased. He visited a doctor at a clinic in Belo Horizonte who told him that HIV medication is available to citizens who reside in Brazil but newer medications, including Triumeq, were not available.
ix.He saw his parents and other family during this visit. He was told that his clothing – which was his usual clothing in Australia – was unsuitable and had to borrow his brother’s clothes. They did not discuss anything about his personal life.
x.When his final Student visa application was refused, he disclosed to his doctor his fears of returning to Brazil. His doctor advised him to contact [Organisation 1]. This was when he first became aware that he could apply for a protection visa.
The applicant’s representative from the [Organisation 1] provided brief legal submissions, together with a letter dated 9 February 2018 from a specialist medical practitioner at [Clinic 1] which includes confirmation of the following:
i.The applicant has attended the clinic since May 2013. He has asymptomatic HIV infection which has been controlled through Antiretroviral Therapy (ART). Without daily ART, the applicant would quickly develop HIV associated drug resistance which is extremely challenging to treat.
ii.In March the applicant commenced taking an ART combination, imported at his own expense, which caused severe side effects including diarrhoea, vomiting and headaches. Since November 2016 he has been taking Triumeq, which is not available in Brazil and would be prohibitively expensive to self-import. He is tolerating this ART well. In the author’s opinion, the applicant would experience real challenges to his health and wellbeing if he were to return to Brazil.
The applicant was not invited to attend an interview with the Department. Based on the available evidence, the delegate accepted that the applicant is a gay man who has been diagnosed with HIV. The delegate considered a range of country information and concluded that, while there is a high level of violence toward LGBTI people in Brazil, there are a range of legal protections in place and the applicant could obtain protection from the Brazilian authorities.
While acknowledging there is widespread fear and ignorance regarding HIV, the delegate found that the degree of stigma or discrimination the applicant may experience due to his HIV status would not amount to persecution. The delegate was satisfied that the applicant would be able to access affordable HIV medication and associated medical services in Brazil.
Tribunal evidence
Prior to the Tribunal hearing, the applicant’s representative provided detailed legal submissions, supporting country information and additional medical evidence, as outlined below:
Pre-hearing submissions
It is submitted the applicant satisfies the refugee definition as he faces a real chance of persecution for reasons of his actual and/or perceived membership of various particular social groups: ‘Homosexual men in Brazil’, ‘People living with HIV in Brazil’ and ‘People with mental illness in Brazil’.
It is submitted that the delegate failed to meaningfully engage with country information highlighting severe stigma and discrimination toward homosexual men and people living with HIV, as well as rising intolerance and violence towards the LGBTI+ community. A range of country information is referenced regarding the situation for homosexual men in Brazil. Although there are no laws criminalising consensual same-sex sexual conduct between adults, Brazil has one of the world’s highest levels of anti-LGBTI+ violence. Violent homophobic rhetoric contributes to a sense of fear that open discussion of LGBTI+ rights and issues could be met with harassment or attack.[1]
[1] Freedom House, Freedom in the World 2024: Brazil
According to a 2023 report, there is at least one sexual and gender minorities (SGM) person murdered every day and SGM persons frequently experience hate crimes, violence, forcible attempts to change their sexual orientation and/or gender identity, and discrimination in education and employment settings, healthcare facilities and public spaces. SGM people also face high profiling rates, discrimination, and harassment by law enforcement officers, which influences their willingness to report crimes.[2]
[2] Malta, M., da Silva, A.B., da Silva, C.M.F. et al, Addressing discrimination and violence against Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) persons from Brazil: a mobile health intervention, BMC Public Health 23, 2069 (2023)
According to a 2023 US Department of State report, significant human rights issues in Brazil included crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, or intersex persons. A survey by a local NGO indicates that between January and June 2022, 139 LGBTQI+ persons were victims of violent deaths. The survey recorded 256 deaths in all of 2022, with gay men and women being the main victims (48 per cent). Discrimination based on sexual orientation and gender identity is also prevalent in the workplace. According to sources cited in a US State Department report, 33 per cent of companies avoided hiring LGBTQI+ employees.[3]
[3] US Department of State, 2023 Country Reports on Human Rights Practices: Brazil
A 2020 report by Open Democracy refers to high rates of violence and discrimination toward the LGBTQI+ community in Brazil. Reasons include a ‘deep strain of social conservatism in Brazilian society’ and that Brazil is extremely violent, with the highest absolute number of homicides in the world, including many that are a result of hate crimes. A recent study, drawing on reports to ‘Disque 100’ (a state-sponsored hotline that collects, analyses, and reports human rights violations) and victimization data from Brazil's universal healthcare system, documented more than 24,600 incidents of violence perpetrated against Brazil's LGBQT+ population between 2015 and 2017, equating to 22 incidents a day.[4]
[4] Open Democracy, Brazil’s LGBT community faces surging violence, but they’re fighting back, 9 December 2020
The same report refers to low levels of official reporting by LGBTQ+ people, often because of the prejudices they face in the policing and criminal justice system. A survey released by the Brazilian Public Security Forum on the online behaviour of police found that 24 per cent of officers publish anti-LGBTQ content on their personal and professional social networks. There is considerable anecdotal evidence that many police, prosecutors and judicial authorities are biased against the LGBTQ+ community.[5]
[5] Open Democracy, Brazil’s LGBT community faces surging violence, but they’re fighting back, 9 December 2020
The delegate’s finding that the applicant will have access to effective HIV treatment without serious adverse side effects is disputed. It is submitted that, according to country information, the applicant’s current ART, Dovato (comprised of dolutegravir/lamivudine), is not widely available in Brazil due to its high cost. Lack of access to this particular ART would result in a serious deterioration in the applicant’s health and he would be unable to rely on his family for support. He has previously experienced serious harm from his family in the form of physical, psychological and emotional harm and if he were to return would face psychological harm as a result of being forced to hide his sexuality in order to avoid physical harm.
The delegate failed to consider relevant authority in MZXKX v Minister for Immigration[6] which provides that, in conjunction with treatment for HIV, familial and community support and financial security is crucial for someone to be able to subsist, especially in the context of widespread community discrimination and persecution. If the applicant were to return to Brazil, there is a real chance that he would be unable to subsist as a result of stigma and discrimination toward people living with HIV which would impact his ability to obtain employment and access medical care. If he were to become physically and mentally unwell due to issues with access to his necessary medication, he will not be able to sustain employment and would not have familial support.
[6] [2008] FMCA 567
The delegate failed to have regard to issues regarding access to HIV treatment, including stigma and discrimination and fear of disclosure by healthcare workers. Country information is referenced indicating that, despite State efforts to combat stigma and discrimination toward people living with HIV, it remains a problem, especially in accessing HIV care. According to a study of HIV-related discrimination in the Brazilian healthcare context, 40 per cent of people living with HIV reported at least one episode of discrimination throughout their life, including being subject to gossip, verbal harassment, physical aggression and loss of income or employment because of their HIV status. Instances have also been reported of people being forced to take a HIV test or disclose their HIV status.[7] According to a 2022 report, breaches of confidentiality in HIV diagnosis are ‘recurrent’ and can adversely impact on a person’s livelihood, including in terms of access to medication, health care services and employment.[8]
[7] Journal article provided at Annexure F of Pre-hearing submissions: Key and general population HIV-related stigma and discrimination in HIV-specific health care settings: results from the Stigma Index Brazil, AIDS Care (2021)
[8] Daniele Souza, Carla Pereira, Juan Raxach, Reports on a book with situations of stigma/ discrimination of People Living With HIV/ AIDS in Brazil (2022) Saúde debate 46(7): 264-27
It is further submitted that severe stigma and discrimination will adversely affect the applicant’s mental health to a degree amounting to psychological harm. As noted in the Federal Court judgment of SCAT v Minister:[9]
If people are, from an early age, considered by the great majority of the people in the society in which they live to be ‘dirty’, are positively treated as if they are dirty, and if there is otherwise widespread and far-reaching discrimination against them, it requires no degree in psychology to accept that this may well be very harmful to mental well-being.
Medical evidence
i.Letter dated 12 November 2021 from a specialist medical practitioner at [Clinic 1] confirming that the applicant’s current ART (since February 2020) is Dovato. He has experienced no adverse reaction to this medication. He has previously taken various other ART combinations which caused several adverse side effects. The applicant has experienced depression and received counselling on multiple occasions since his HIV diagnosis, during which he has discussed discrimination, bullying, lack of support and rejection by his family in Brazil who consider homosexuality as a ‘sickness’. He has not told anyone in Brazil about his HIV diagnosis due to the fear of stigma and discrimination.
ii.Letter dated 7 August 2024 from a specialist medical practitioner at [Clinic 1] confirming the applicant’s continued attendance at the clinic, that he takes an anti-depressant medication and his current ART is Dovato.
[9] [2003] FCAFC 80
Relevant additional evidence provided at the Tribunal hearing is outlined below:
i.He maintains contact with his family in Brazil, including his father, mother and brother who continue to reside in Belo Horizonte. They are aware of his sexuality but not his HIV status. His family are religious and he fears their reaction.
ii.His father was often violent toward his mother; he has problems with alcohol and suffers from mental health issues. His father has been admitted on several occasions to mental health clinics for treatment. He fears harm from his father if he were to learn about his HIV status.
iii.He would not be able to live with his family if he were to return to Brazil. He has limited non-familial support as he has lived outside Brazil since 2012 and has lost touch with many of his friends. He suffers from mental health issues, including panic attacks, and has been taking anti-depressant medication at various times during the past 10 years.
iv.He has not lived in any other part of Brazil and does not think that he could relocate to another part of the country where he could live safely and openly as a gay man. Even in a city such as Rio de Janeiro, there are high level of violence toward members of the LGBTI community and the cost of living is high.
v.I discussed with the applicant country information indicating that his current ART, appears to be available in Brazil, since 2017, and the government provides free ART to all citizens living with HIV in Brazil. He responded that he is unsure of the current situation as has not been back to Brazil for many years but fears that he will be unable to access adequate HIV medical services and treatment.
vi.I discussed with the applicant that if I were satisfied that he engaged protection obligations with respect to Brazil, I would need to consider whether he had a right to enter and reside in a safe third country, noting that the Southern Common Market or ‘MERCOSUR’ agreement provides reciprocal residency rights to citizens of Member States, being Uruguay, Brazil, Argentina, Paraguay, Bolivia, Chile, Colombia, Ecuador, and Peru. He agreed that he may be able to reside in those countries but raised concerns about discrimination toward LGBTI people and other factors that would cause difficulties for him such as language barriers and economic challenges.
Post-hearing submissions

Regarding access to Dovato, reference is made to a January 2024 which is claimed to indicate that Dovato will only be available to patients aged over 50 who have already begun treatment therapy, with the consequence that the applicant would not have access to the specific ART medication that he requires. He would be required to use an inferior medication which, given his previous treatment history, is likely to cause severe mental and physical side effects or result in a deterioration of his HIV condition.
Regarding residency rights under the MERCOSUR agreement, reference is made to several Tribunal decisions which raise various practical or procedural issues with the implementation of this agreement. There is a degree of uncertainty or arbitrariness in the ability of Member States’ citizens to exercise entry and residence rights under the agreement. While the agreement refers to rights to equal treatment with regard to social and economic rights, this is not further defined. It is submitted that the agreement does not guarantee a right to enter and reside in another Member State.
Findings and assessment
I have no concerns regarding the credibility of the applicant’s claimed sexuality and HIV positive status. These claims have remained consistent, were accepted by the delegate, and are supported by the applicant’s oral and documentary evidence. I accept that the applicant concealed his sexuality while living in Brazil due to a fear of harm and that he was physically assaulted by his father after his family learnt of his sexuality. I accept that the applicant’s family are not aware of his HIV status. I accept that the applicant’s current ART medication is Dovato and that he has previously experienced significant adverse reactions to other ART medications.
Based on the applicant’s circumstances, I find that if he were to return to Brazil, he is likely to return to Belo Horizonte, being his previous place of residence and the area in which his family continue to reside.
Regarding the claims that the applicant would be unable to access the specific ART medication that he requires, I have considered the representative’s post-hearing submissions regarding recent changes in the availability of Dovato in Brazil. The article, titled ‘Brazil expands access to Dovato’ states as follows:
Brazil's Ministry of Health distributed 5.6 million tablets of dolutegravir and lamivudine for the treatment of HIV, reported the country's national public news agency.
The antiretroviral medicine, commonly known as Dovato, by ViiV Healthcare, was given to states and the Federal District for further distribution.
“Previously, HIV treatment exclusively involved combinations of multiple drugs from different classes to effectively suppress the virus and slow disease progression. With the new medicine, users gain the possibility of using a treatment with a single daily dose,” stated the ministry.
The therapy will be supplied for those aged 50 years and older with a viral load of less than 50 copies/ml who have started therapy. “The criteria for expanding the public covered by the new treatment model may be reviewed in six months, observing, for example, the growth trend in prescriptions and the availability of the medicine in stock in the network,” said the ministry.[10]
[10] Navlin Daily, Brazil expands access to Dovato, 10 January 2024
According to a 2019 paper, discussed with the applicant and his representative at the hearing, since 2017 Brazil’s national preferred first-line regimen has been ‘dolutegravir + lamivudine + tenofovir.’[11] A July 2018 article refers to Brazil’s national treatment program being one of the first in a middle-income setting to adopt dolutegravir-based treatment as the preferred option for first-line therapy, in early 2017. Dolutegravir is an integrase inhibitor with a high barrier to resistance. The drug is well tolerated in the vast majority of people. As a consequence of a deal between the Medicines Patent Pool and ViiV Healthcare, dolutegravir is available in 92 lower-income countries as part of a three-drug combination for approximately $75 a year. Brazil’s government agreed a price of approximately $500 a year with ViiV Healthcare in October 2016 and negotiated a further discount in 2018.[12]
[11] Benzaken et al, Antiretroviral treatment, government policy and economy of HIV/AIDS in Brazil: is it time for HIV cure in the country?, AIDS Research and Therapy (2019) 16:19
[12] Aidsmap, Brazil confirms dolutegravir is the most effective drug for first-line HIV treatment, 24 July 2018
The letter dated 12 November 2021 from the [Clinic 1] notes that ‘the individual components of Dovato are available in Brazil’ but the author is unsure about the ‘co-formulated product’. Based on the above article regarding the recent expansion of access to Dovato and the information in the pre-hearing submissions, I understand that the individual components of Dovato are dolutegravir and lamivudine. While I accept that the applicant may not currently be eligible to access Dovato in a single co-formulated tablet, the above information indicates that the individual components are available in Brazil. I acknowledge that the letter from the [Clinic 1] notes that a ‘lower pill burden has been shown to improve adherence and quality of life and satisfaction with treatment’. However, I am not satisfied that the applicant would be unable to access ART medication of a substantially similar nature if he were to return to Brazil. As acknowledged in the post-hearing submissions, access to free HIV medication and treatment for all citizens has been available in Brazil since 1996.[13]
[13] Benzaken et al, Antiretroviral treatment, government policy and economy of HIV/AIDS in Brazil: is it time for HIV cure in the country?, AIDS Research and Therapy (2019) 16:19
However, considering the above country information I find there is at least a real chance, being a possibility that is not remote or far-fetched,[14] that the applicant would face serious harm from members of society in the reasonably foreseeable future if he were to return to Belo Horizonte and live openly as a gay HIV positive man. I acknowledge that he cannot be expected to conceal or modify his sexuality or health status in order to avoid persecutory harm. As outlined above, the number of reported murders, hate crimes, incidents of violence and threats of violence, and discrimination toward members of the LGBTI+ community is significant and very likely to be higher due to underreporting. Having regard to the level of stigma and discrimination experienced by persons living with HIV in Brazil, I find that his HIV status would elevate his chance of experiencing serious harm.
[14] Chan Yee Kin v MIEA [1989] HCA 62
I find that the applicant fears persecution for reasons of his membership of the particular social groups, ‘Homosexual men in Brazil’ and ‘People living with HIV in Brazil’ or a combination of those groups. I find these groups to satisfy the definition in s 5L as the characteristics of gender, sexual orientation and/or HIV status are shared by each member of the group, including the applicant and are not a fear of persecution. I am satisfied that these characteristics satisfy the requirements in s 5L(c) of being innate or immutable, fundamental to the applicant’s identity and/or distinguishing the group from society.
I find the applicant’s membership of these groups to be the essential and significant reason for the persecution as required by s 5J(4)(a) and am satisfied that the persecution involves systematic and discriminatory conduct as it is targeted toward members of these groups and is non-random. Further, I find the persecution to involve serious harm, as required by
s 5J(4)(b), as the harm includes a threat to the applicant’s liberty and significant physical harassment or ill-treatment.
I have therefore considered whether the real chance of harm relates to all areas of Brazil, as required by s 5J(1)(c). I acknowledge country information referenced in the pre-hearing submissions which supports that significant levels of violence and threats of violence against the LGBTI+ community occur throughout the country, including in areas such as Rio de Janeiro which are often perceived as ‘gay-friendly’. I am also satisfied that stigma and discrimination toward persons living with HIV apply throughout Brazil. I find that the applicant would face a real chance of serious harm in all areas of Brazil if he were to live openly as a gay HIV positive man.
While I acknowledge the legal protections referenced in the delegate’s decision, I find that effective protection measures as defined in s 5LA would not be available to the applicant. Considering the significant levels of violence and other forms of harm toward LGBTI+ persons and those living with HIV and the country information discussed above regarding prejudice amongst law enforcement officials toward these communities, I am not satisfied that the applicant could access protection against such harm from the Brazilian authorities.
I find that the applicant could not take reasonable steps to modify his behaviour to avoid a real chance of persecution. Such modifications would fall within the various exceptions in
s 5J(3), including conflicting with a characteristic that is fundamental to a person’s identity or conscience and concealing an innate or immutable characteristic.
For the above reasons, I find the applicant has a well-founded fear of persecution and is a refugee within the meaning of s 5H(1) of the Act.
Under s 36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
As discussed above, the MERCOSUR agreement may provide entry and residence rights to the applicant in another Member State. I acknowledge that there may be practical and procedural limitations in the implementation of this agreement. I also find that the applicant is likely to experience particular difficulties residing in a third country due to his HIV status, including accessing necessary ART medication and treatment, such that the exceptions in
s 36(4) would apply . Based on the available evidence, I find that the applicant does not have a right to enter and reside in a third country and s 36(3) is therefore not applicable.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.
Mia Bailey
Member

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.
…

[2024] AATA 4433

4 October 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies