2204123 (Refugee)

The applicant, a Brazilian national, sought to engage Australia's protection obligations under s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth). The applicant claimed to fear returning to Brazil due to his sexuality as a gay man and his HIV positive status, alleging he feared violence from his father and members of the community, as well as stigma and discrimination related to his HIV status. The court was required to determine whether the applicant met the criteria for being a refugee or for complementary protection, specifically whether he had a well-founded fear of persecution for reasons of membership of a particular social group and whether there was a real risk of significant harm upon removal to Brazil.

The court considered the applicant's evidence detailing past violence from his father upon discovering his sexuality, threats to his life, and community-based violence and discrimination against gay men in Brazil. The applicant also presented evidence of his HIV diagnosis in Australia, his reliance on specific medications not readily available in Brazil, and the significant stigma associated with HIV in his home country, which he believed would exacerbate the risks he faced. The court applied the principles of s 5J of the Act regarding a well-founded fear of persecution, including the requirement for a real chance of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and that such persecution must involve serious harm. The court also considered the definition of "significant harm" under s 36(2A) and the potential for effective protection measures or reasonable relocation within Brazil under s 5LA and s 36(2B).

Ultimately, the court found that the matter should be remitted for reconsideration. The decision indicates that the Tribunal was satisfied that the applicant met the criteria under s 36(2)(a) of the Act, meaning Australia had protection obligations because the applicant was considered a refugee. The matter was remitted with a direction that the applicant satisfies this criterion.