2204322 (Refugee) - [2025] ARTA 2224

2204322 (Refugee) [2025] ARTA 2224 (25 September 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2204322 and 2500328
Tribunal:General Member M Bailey
Date:25 September 2025

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

Statement made on 25 September 2025 at 9:39am
CATCHWORDS
REFUGEE – protection visa – Brazil – particular social group – family members of a police informant against a criminal faction – whistleblower brother – drug dealer – incarcerated for theft – mistaken identity by police – threatened and targeted – fears being harassed, harmed or killed by criminal faction linked with brother – fears retaliation from brother for assisting police arrest – prevalence of gang violence – financially motivated crimes – faced by population generally not personally – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 56, 65, 359A, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA [1989] HCA 62
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

These are applications for review of decisions made by delegates of the Minister for Home Affairs to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (applicant) together with the second, third and fourth named applicants (second, third and fourth applicants) applied for the visas on 5 August 2020. The delegate made a refusal decision on 10 March 2022. The fifth named applicant (fifth applicant), who was born following the refusal decision, applied for the visa on 20 November 2024. The delegate made a refusal decision on 9 December 2024. The delegates in both matters found that the applicants did 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.
On 24 March 2022 the applicant and second, third and fourth applicants lodged a review application with the former Administrative Appeals Tribunal (the AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
On 5 January 2025 the fifth applicant lodged a review application with the Tribunal. On 13 February 2025, in a completed ‘Pre-hearing information form’, the applicant requested that the fifth applicant be ‘added’ to the review application for the other family members. On 9 June 2025 the applicants’ representative confirmed that they were requesting the Tribunal conduct a combined hearing for all family members. The Tribunal agreed to this request.
The applicants were initially given notice of a Tribunal hearing on 31 July 2025. Their representative requested an adjournment as the second applicant [had a medical condition]. The Tribunal agreed to an adjournment.
The applicant and second applicant appeared before the Tribunal at the Brisbane Registry on 28 August 2025 to give evidence and present arguments. Their representative attended the hearing. The hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.
BACKGROUND
The applicant and second applicant, both [age] years old, are husband and wife. The third, fourth and fifth applicants, [of varied ages], are their children. The applicant first arrived in Australia [in] January 2013 on a student (subclass 570) visa. The second applicant first arrived in Australia [in] May 2013 on a student (subclass 570) visa. The third, fourth and fifth applicants were born in Australia. The applicant and second applicant also have a daughter, born in [date], who is not included in the review application.
Copies of the biodata pages of the Brazilian passports for all five applicants were provided to the Department of Home Affairs (Department) in support of the protection visa applications. The delegates found all five applicants to be citizens of Brazil. Based on the available evidence, I am satisfied that the applicants are citizens of Brazil and 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 lodged in August 2020, the applicant and second applicant were born and resided in Sao Paulo. The applicant completed a tertiary degree in [Industry 1] in [year] and was employed in various [Occupation 1] roles in Brazil between 2007 and 2012. The applicant’s family members in Brazil comprise his parents, one [sister] and one [brother]. Regarding their travel history, the applicant and second applicant travelled to Brazil between [June] 2015 and [August] 2015 to visit family. The second and third applicants travelled to Brazil between [August] 2018 and [September] 2018 to visit family.
The applicant and second applicant raised their own claims for protection. The applicant stated in summary as follows:
i.He left Brazil due to a fear of violence. He was ‘threatened with death and persecuted few times’ by a criminal faction, Primeiro Comando da Capital (PCC), and the Brazilian authorities.
ii.His brother, [Brother A], who is currently in prison, was a member of the PCC. When the applicant was [age] years old, his brother escaped from prison and falsely used the applicant’s identity. In 2007 the applicant was mistaken for his brother by the police.
iii.After 10 years’ involvement with the PCC and reaching a ‘high hierarchy’ his brother made a deal with the authorities to deliver ‘all the partners of the crimes’. This led to the applicant receiving ‘numerous links from unknown numbers’ calling to threaten him and his family.
iv.He did not seek assistance from the police because they are inefficient, and he was fearful. He moved twice within Sao Paulo in an attempt to seek safety; to Campinas and Guaruja.
v.If he returns to Brazil, he will be persecuted by the PCC due to his brother’s actions as a whistleblower. His brother is currently involved with another criminal faction for his own safety. The PCC has threatened to set fire to the applicant’s house and torture and kill him because of his brother’s actions. He could not relocate for his safety as the PCC operates throughout the entire country.
The second applicant stated that the applicant received direct and indirect threats to his life on many occasions because of his brother’s involvement with the PCC. Her brother-in-law’s betrayal of the PCC was considered a serious breach of the group’s laws. If they return to Brazil, the PCC will continue to target her husband and his family because of her brother-in-law’s actions.
An undated supporting document was submitted to the Department on 5 August 2020 (2020 Statement). Relevant evidence from this document is summarised below:
i.The applicant’s parents separated when he was a child. His mother worked several jobs to support the family. He and his sister were often left to be cared for by [Brother A].
ii.His brother became involved with using and selling drugs in 1997, when he was [age] years old. He was first arrested in late 1997 for minor crimes and sent to juvenile detention. He was sent again to juvenile detention in 1998 and 1999. In 2000, when he was [age] years old, his brother was arrested for theft and sent to an adult prison for two years, where he joined the PCC.
iii.In 2005 the applicant and second applicant moved to Campinas city in Sao Paulo for two years. In October 2007, while serving a prison sentence in a ‘semi-open regime’, his brother ran away. The applicant returned to Sao Paulo to help his mother.
iv.[In] December 2007, while waiting for a bus in Sao Paulo, two armed police officers apprehended the applicant under the mistaken belief that he was his brother. [Later in] December 2007, with the applicant’s help, the police located his brother who was falsely using the applicant’s identity document.
v.In 2010 the applicant and second applicant moved to Guaruja in Sao Paulo in an attempt to escape the violence. In 2012, when his brother was released from prison, they decided to leave Brazil and applied for student visas to Australia.
vi.In January 2017 his brother ran away and spent almost one year out of jail. [In] December 2017, while committing a crime, his brother was captured by police. He made a plea deal with the authorities to obtain a reduced sentence. This meant that his brother, together with his family, was sworn to death by the PCC. His brother had to be moved to another jail and isolated to avoid being killed.
vii.His brother is currently in a prison in Sao Paulo which is controlled by another criminal faction. If he were to be released, he ‘will hardly stay alive’.
The protection visa application lodged in November 2024 for the fifth applicant was based on the same claims as those raised by his parents.
The applicants were not invited to attend an interview with the Department. The Department did not seek any additional information from the applicants pursuant to s 56 of the Act. In refusing the application, the delegate was not satisfied that the applicants’ claims related to any of the reasons in s 5J(1)(a) of the Act. Having regard to country information, the delegate found that the applicants could obtain protection from the Brazilian authorities in regard to harm from the PCC such that there was no real risk of significant harm.
Evidence before the Tribunal
Pre-hearing evidence
The applicants’ representative provided a submission dated 20 August 2025 asserting that the applicants have a well-founded fear of persecution for reasons of their membership of a particular social group as family members of a police informant against the PCC. Country information is referenced regarding the targeting by the PCC of immediate family members of informants. While it is acknowledged that the applicants’ mother and sister have not to date been harmed by the PCC, this does not diminish the risk faced by the applicants. The applicant faces a particular risk of harm as he is an adult male; his identity was previously stolen by his brother who is a PCC informant; and he has previously been mistaken for his brother by the police.
It is further submitted that the applicants have a well-founded fear of persecution for reasons of an imputed political opinion due to their familial relationship with a former PCC member turned police informant. This may give rise to the applicant being perceived as aligned with law enforcement and targeted by the PCC or perceived as a PCC affiliate and being targeted by the authorities or rival gangs. Alternatively, it is submitted that the applicant engages complementary protection obligations as he faces a real risk of significant harm from the PCC. Country information is referenced regarding the lack of adequate state protection and the PCC’s reach throughout Brazil.
It is submitted that the minor applicants, who were born and have always resided in Australia, face a risk of significant harm in Brazil via the risk faced by the applicant or the broader instability associated with PCC activity. Removal to Brazil would cause also cause extreme disruption to their education, social development and family life.
A Statutory Declaration of the applicant dated 20 August 2025 (Tribunal Statement) was submitted together with various annexures. Relevant evidence from these documents is summarised below:
i.His brother, [Brother A], is his half-brother (his mother’s son from a previous relationship). His parents separated in around 1995. A psychological report dated [August] 2016 prepared by the Social Service Department in relation to a request for his brother’s transfer to a semi-open regime and conditional release (Psychological Report) is submitted. This includes information regarding his brother’s childhood and family background.
ii.His brother became involved with the local crime and drug scene in Sao Paulo from around 1996 and spent several periods in juvenile detention. By around 2000, when he was [age] years old, his brother was well known in their area as a drug dealer.
iii.In around February 2001 his brother was sent to an adult prison for theft offences. During this time, his brother joined the PCC which provided protection to prisoners in exchange for money. Between early 2002 and February 2004 his brother was released and re-imprisoned on several occasions. In February 2004 his brother was placed in a maximum-security prison after being convicted of theft. A copy of his brother’s criminal record, issued [in] June 2023 by the Penitentiary Administration Department, is provided (Criminal Record).
iv.In around May 2007 his brother escaped from prison. An incident report dated [October] 2007 by [Prison A] is provided which refers to his brother’s escape [in] October 2007. [In] December 2007 the applicant was mistakenly identified by the police as his brother. They pointed guns at the back of his head and called him by his brother’s name. He was able to prove his identity by showing them that, unlike his brother, he had no gang-related tattoos. The applicant learnt that, following his escape from prison, his brother was using false identity documents with the applicant’s details.
v.In late December 2007 the applicant anonymously advised the police of his brother’s location. His brother was arrested by the police and subsequently convicted for use of false documents. A copy of a judgment of [Court 1] dated [February] 2012 is provided in relation to an appeal of his brother’s sentence. The judgment includes the applicant’s name when recounting the circumstances of the offence.
vi.In mid-March 2011 his brother was granted provisional release from prison. He was re-arrested [in] June 2011 in connection with a robbery. To avoid a lengthy prison sentence, his brother cooperated with the police. He entered a plea deal, providing information about the PCC in exchange for a shorter sentence. His brother had been tortured and threatened in prison and feared serious consequences for betraying the PCC. Copies of three documents relating to his brother’s plea deal are provided: a ‘Record of Interrogation’ filed with the Criminal Court; a judgment of [Court 2] dated [October] 2014 relating to five appellants including the applicant’s brother; and a letter dated [November] 2014 from the [Court 3] to [Court 4]. The applicant acknowledges that he mistakenly stated in his 2020 Statement that his brother entered a plea deal in 2017 rather than 2011.
vii.His brother’s plea deal made him a target for retaliation by the PCC and he was transferred out of PCC-controlled prisons for his safety. Their family was advised by his brother’s lawyer to take serious precautions due to potential threats from the PCC. These events caused the applicant and second applicant to start exploring options in 2012 to leave Brazil. They did not seek help from the Brazilian authorities as the PCC has significant influence within Brazil, including amongst law enforcement and the government.
viii.In October 2013 his brother was violently attacked in prison by an inmate who believed he had infiltrated the prison on behalf of the PCC. His brother was able to defend himself, but this incident demonstrated that the PCC has the power to reach him anywhere. A prison report headed ‘Term of Declaration’ dated [October] 2013 is provided regarding this incident (Prison Report).
ix.In June 2015 the applicant and second applicant returned to Brazil to visit their families. His brother was in prison at that time, but the applicant was concerned that he may be recognised by the PCC. One evening during the final week of his visit, while walking on the street with some friends (including ‘Mr [A]’), he was approached by a friend of his brother’s who was affiliated with the PCC. This person recognised the applicant and said words to the effect, ‘you’re going to pay for it’. The applicant and his friends were able to run away. The applicant spent the remainder of his trip inside the house with his family. This incident confirmed his fears that he remains at risk in Brazil due to his brother’s PCC connections. Mr [A] is unwilling to provide confirmation of this incident because he fears the potential consequences of testifying against the PCC.
x.In January 2017 his brother failed to return to prison following ‘another temporary release for the holidays’. His brother remained a fugitive for most of 2017. He was captured [in] December 2017 while committing an armed robbery. These incidents are evidenced in the Criminal Record.
xi.The applicant and second applicant spent the first few years in Australia focused on studies and work. They hoped they could return to Brazil one day but his brother’s continued arrests and issues with the PCC, which continues to grow in influence, placed them in greater danger over time. In 2020 they contacted an organisation which claimed to specialise in Brazilian humanitarian cases; this was when they first became aware of a protection visa. Unfortunately, the organisation that assisted them handled their case in an unprofessional manner and lodged the application with limited detail and no supporting evidence.
xii.His family in Brazil continues to live in fear. The PCC is reluctant to target mothers for retaliation due to strict honour codes. His sister moves house almost yearly to avoid being located and harmed. As a male, whose identity was falsely assumed by his brother, he faces a significantly higher risk. His name appears in his brother’s criminal proceedings.
xiii.He fears that he and his wife and children will be harassed, harmed or killed on return to Brazil due to their familial connection with his brother. This could cause them to be perceived as associated with, or opposed to, the PCC. His brother may perceive the applicant as having assisted the police in connection with his arrest in December 2007 and seek retaliation.
A Statutory Declaration dated 20 August 2025 of the second applicant was also submitted reiterating her brother-in-law’s involvement with the PCC and 2011 plea deal. Regarding their travel to Brazil in mid-2015, she stated that they were aware of the risks from the PCC but believed this would be manageable because their visit was short. However, close to the end of their visit her husband was recognised by an associate of her brother-in-law and forced to flee. This confirmed to them that they could never safely return to Brazil. She returned briefly to Brazil, without her husband, in October 2015 for her father’s funeral. She and the third applicant travelled to Brazil, without her husband, for a third and final time in October 2018 to introduce her son to his grandparents. She expressed concerns for her children’s safety due to gang violence and their wellbeing if they are required to live in Brazil. They are not fluent in Portuguese and have never lived in Brazil.
Oral evidence at Tribunal hearing

Oral evidence was taken separately from the applicant and second applicant. Issues of concern, as outlined below, were raised with both applicants present. Their representative was in attendance throughout the hearing.
Regarding the preparation of the protection visa application, the applicant stated that he provided information to a non-profit organisation that assisted them but did not write the application himself. He did not have the opportunity to review the application prior to lodgement.
Regarding his family in Brazil, the applicant stated that he has no contact with his father. His mother moved from Sao Paulo to Sergipe state, where his grandmother lives, around two years ago. His sister continues to reside in Sao Paulo. He does not maintain contact with his brother. He was unable to recall the last time they had contact but stated it was a long time ago. Asked how he obtained the documentary evidence relating to his brother, he stated that he received these from his brother’s lawyer.
I discussed with the applicant that according to the Psychological Report, his brother has been married since [age] and has three sons ([ages] as of August 2016). The applicant responded that his brother is not legally married, and he doesn’t know about his family circumstances as he does not maintain contact with his brother, his brother’s wife or their children. He stated that his mother ceased contact with his brother in around 2010 or 2011. I raised with the applicant that according to the Psychological Report, his mother sends letters and packages to his brother in prison. The applicant responded that they only have contact with his brother’s lawyer.
Asked about his brother’s current prison status, the applicant stated that he remains in prison. I raised with the applicant that the Criminal Record indicates that [in] September 2022 his brother was granted progression to a ‘semi-open’ regime and remained in a semi-open regime as of [June] 2023. According to country information, this allows inmates the freedom to work or study outside the prison during the day, with the requirement to return at night.[1] The applicant responded that he has been told by his brother’s lawyer that his brother remains in a closed prison.
[1] Brazil Counsel, Brazil’s three types of prison regimes, 27 June 2023
Regarding his claim that as part of the plea deal his brother provided information about the PCC, I discussed with the applicant that the documentary evidence submitted to the Tribunal indicates that the plea deal was in connection with his brother’s involvement in stealing [items] as part of a criminal gang. He provided information about the robbery and several other persons involved in the crime. There is no specific reference to the PCC. The applicant responded that his brother provided information about the PCC.
Regarding the claim in his Tribunal Statement that his name appears in his brother’s criminal proceedings, the applicant stated this was in relation to his brother’s use of false identity documents and also in relation to the plea deal. Asked why his name would appear in relation to the plea deal, the applicant maintained that his name was linked to his brother because of his brother’s use of his identity. I noted that there appears to be no documentary evidence of his name appearing in the context of his brother’s plea deal.
Regarding the claim in his Tribunal Statement that his brother’s attack by a prison inmate in 2013 was connected to the PCC, I discussed with the applicant that this appears inconsistent with the Prison Report which refers to his brother and the other inmate having harmoniously shared a cell for around four months prior to the incident. A verbal discussion led to an incident of spontaneous physical aggression on the part of both inmates. I raised that, based on this evidence, I may not accept that this incident had any connection to his brother’s plea deal in 2011 or the PCC. The applicant responded that as far as he knows this related to an attack against his brother by the PCC, but he has no other evidence to support this. Asked whether his brother has been otherwise targeted or harmed by the PCC since entering a plea deal in 2011 the applicant stated that he is not aware of any other incidents, but his brother has been transferred to prisons which are not controlled by the PCC.
Asked whether he personally experienced any problems with the Brazilian authorities other than the 2007 incident of mistaken identity, the applicant responded that his name is on a police file, and he had to clarify this issue when he applied for a police check. He thinks the police are affiliated with the PCC. He anonymously reported his brother’s location in 2007 because he did not trust the police. I raised with the applicant that this resulted in his brother being arrested, charged and convicted indicating an effective legal process and he does not appear to have experienced any further problems with the authorities.
Asked whether he was threatened or harmed by the PCC or other criminal groups while in Brazil, the applicant referred to the incident outlined in his Tribunal Statement during his return visit to Brazil in 2015. He confirmed that he experienced no other threats or harm from criminal groups and was never harmed by his brother. I raised that this appears inconsistent with the claims in his protection visa application that he received numerous threatening calls from the PCC and the group had threatened to set fire to his house and physically harm him. The applicant responded that this occurred after his brother entered a plea deal. His mother received threatening calls in which the callers made clear that he and his family were targets. Asked why he did not mention this previously when asked about threats, he stated that the incident in 2015 was the only in-person threat he received. The other threats were via phone. The applicant confirmed that his mother and sister have not experienced any harm from the PCC. His sister moves regularly. He is not aware of any harm experienced by his brother’s partner or children.
Regarding his return trip to Brazil for approximately two months in 2015, the applicant stated that they stayed with his mother in Sao Paulo until he was threatened by a PCC member. Following that incident, they stayed with his wife’s relatives. I discussed with the applicant that his claim to have been threatened toward the end of this visit by a PCC member was not raised with the Department. He responded that the protection visa application was generic and did not include all relevant facts. I noted that the 2020 Statement included detailed and personal information but made no mention of his return to Brazil in 2015 or any threats received at that time by the PCC. The applicant responded that he told the organisation assisting them about this incident as this meant they could not return to Brazil. He doesn’t know why they failed to include it. He did not have the opportunity to review the application prior to lodgement.
I discussed with the applicant that he claims this incident in mid-2015 caused them to genuinely fear returning to Brazil, yet it was a further five years before they applied for protection visas. The applicant responded that they were looking for options to remain in Australia on a permanent basis, including through work sponsorship, but he did not know about a protection visa.
In her oral evidence to the Tribunal, the second applicant stated that she did not experience any harm in Brazil in connection with her brother-in-law. Asked about any incidents following her brother-in-law’s plea deal in 2011, she stated that nothing happened but they lived in constant fear. During their return visit to Brazil in 2015 her husband was threatened which increased their fear. She doesn’t want her children to grow up in Brazil given the presence of the PCC and their lack of experience of life in Brazil.
I raised with both applicants several concerns and provided them with an opportunity to comment as outlined below.
Based on the available evidence, I may not accept that the applicant’s brother has been targeted by the PCC following his plea deal in 2011. The incident in 2013 does not appear to have any connection to the PCC and his brother has experienced no other harm, despite being in a semi-open prison regime since September 2022. The available evidence does not indicate that his brother held any high level or leadership role with the PCC. The applicant responded that he cannot prove the 2013 attack was related to the PCC. Regarding the lack of harm, his brother was transferred to prisons outside the control of the PCC, and he believes his brother remains in a closed prison. His brother must have held a leadership role to enter a plea deal. He believes that his brother is on a PCC target list.
Based on the available evidence, I may not accept that the applicant is of adverse interest to the PCC. He did not previously experience any harm from the PCC. None of his family members in Brazil have been harmed. According to a 2024 report from the UK Home Office, retaliation by the PCC against family members is uncommon and appears to be limited to family members of persons who held high level roles with the group who cannot be directly targeted.[2] I may have concerns regarding the claim that his mother received threatening calls following the plea deal. This was not raised in his Tribunal Statement and appears inconsistent with the second applicant’s oral evidence to the Tribunal. He returned to Brazil for two months in mid-2015, despite claiming that his brother was attacked in prison in 2013 by the PCC. I reiterated my concerns about the late disclosure of the claim that the applicant was threatened by a PCC member during his return trip in 2015.
[2] UK Home Office, Report of a fact-finding mission, Brazil: Organised criminal groups (OCGs), December 2024
The second applicant responded that she did not raise the threatening calls as she understood the Tribunal to be asking about in-person threats. The applicant responded that he never returned to Brazil after being threatened in 2015. He reiterated that he advised the organisation assisting them about the threat in 2015 and added that it is difficult to obtain supporting evidence of this incident because people don’t want to provide evidence against the PCC. His family in Brazil continue to face a risk of harm despite the lapse of time. The second applicant added that her sister-in-law moves often, and her husband would face a greater risk of being targeted than his mother and sister.
In accordance with the requirements of s 359A of the Act, I raised with the applicants that according to the Department’s movement records, they applied for and were granted a further three student visas following their initial arrival in Australia in 2013. The second applicant applied for a further student visa in June 2019 which was refused by the Department. In the June 2019 application, they provided statements indicating their genuine intention to return to Brazil at the completion of the proposed course of study and the second applicant submitted a future offer of employment in Brazil. This appears inconsistent with their claim that they knew as of 2015 that they could not return to Brazil due to ongoing threats from the PCC. Further, the delay of more than seven years in applying for protection following their initial arrival, during which time they made multiple student visa applications, may cause me to have concerns about the credibility of their claims. The applicant responded that as part of the student visa application they had to state their intention to return to Brazil. The second applicant responded that it was not until 2020 that they came to know about the protection visa option.
I may not be satisfied that there is a real chance or risk that the applicant would be perceived by the authorities as affiliated with the PCC or subject to harm from his brother. Aside from the incident of mistaken identity in 2007, he has experienced no issues with the authorities, has not been targeted by other criminal groups and has never been harmed by his brother. The applicant responded that his name will always be in the system in connection with his brother’s false use of his identity. The PCC, who have connections with the police, could locate him via these details and his name appears in court documentation.
Regarding the concerns raised on behalf of their children, I explained the requirements to satisfy the refugee and complementary protection criteria and that claims of this nature may not satisfy those requirements. I also explained that generalised crime or violence would not generally satisfy those requirements. The second applicant responded that it is not a case of generalised violence as the harm is targeted at them by the PCC and their children could lose their father.
Post-hearing evidence
A Statutory Declaration of the applicant dated 5 September 2025 (Post-hearing Statement) together with various annexures was submitted. Relevant information from these documents is summarised below:
i.Regarding his brother’s prison regime and why the PCC have limited ability to target his brother, under Brazilian law a prisoner’s sentence progresses through a sequence of regimes (closed, semi-open and open) dependent on the amount of time served on their sentence and maintenance of good behaviour. While his brother has reached the stage of eligibility for a semi-open regime, he has not been transferred to this regime due to serious disciplinary incidents (as evidenced in the Criminal Record). While the Criminal Record refers to his brother being in a semi-open regime, he continues to be held in a closed regime.
ii.A letter from his brother’s lawyer dated 4 September 2025 (Lawyer’s Letter) is provided stating that although the Criminal Record lists the applicant’s brother as being under a semi-open regime in practice he remains in a closed facility with total restriction of liberty. This is due to his record of serious disciplinary breaches and the lack of available places in semi-open regime facilities. The facility in which the applicant’s brother is held is controlled by a rival faction of the PCC which provides him with some protection from the PCC who would very likely make an attempt on his life. The risk of PCC reprisals against the applicant’s brother remains high.
iii.The Lawyer’s Letter also states that the applicant’s name appears as an ‘associated alias’ in his brother’s official criminal record. Whenever a ‘Background Sheet’ is used by the police or judicial authorities, the applicant’s name appears as an alternative identity for his brother which exposes the applicant to a risk of harm from criminal organisations or the authorities. A copy of his brother’s ‘Background Sheet’ issued on 21 December 2024 by the Judicial District Court is provided (Background Sheet). This records his brother’s ‘case status’ as semi-open and ‘current status’ (being the type of facility in which the person is currently placed) as ‘incarcerated’ and includes the applicant’s name as an alternative identity for his brother.
iv.Regarding his failure to disclose the 2015 threat to the Department, the applicant reiterates that he provided information regarding this incident to the organisation that assisted them with the protection visa application. He relied on their expertise to prepare the application and was assured that he would be given the opportunity to submit further evidence at an interview.
v.One of the witnesses to this incident, Mr [A], has now agreed for a letter that he signed prior to the Tribunal hearing to be submitted as supporting evidence. He signed this document prior to the hearing but did not previously consent for it to be submitted. He has since changed his position. A digitally signed statement dated 20 August 2025 from Mr [A] is provided stating that while walking on the street with the applicant [in] August 2015, the applicant was recognised by a man who said something aggressive and appeared angry and ready for violence. They quickly ran away before the situation escalated into violence. He knows the PCC is gaining power in Brazil and such incidents are common for those connected to the PCC.
vi.Regarding the delay in applying for protection, the applicant reiterates that he was not previously aware of its existence despite applying for multiple student visas. He was pursuing a potential employer sponsored visa pathway, but this did not eventuate due to him suffering an injury and requiring a significant period off work.
FINDINGS AND ASSESSMENT
The issue in this case is whether any 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. I have considered all relevant information and evidence as outlined above. For the following reasons, I have concluded that the decisions 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 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 acknowledge that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[3] 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.[4]
[3] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
[4] 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.
Aside from the issues identified below, I accept the applicant’s claims relating to his brother’s criminal history and PCC involvement to be credible. These have remained generally consistent and are supported by reliable documentary evidence submitted to the Tribunal. There is no indication that the documentary evidence submitted to the Tribunal is not genuine. In the circumstances, I have not placed any adverse weight on the failure to provide these supporting documents to the Department. I accept the applicant’s explanation regarding the preparation of the protection visa application. I acknowledge that the applicants were not assisted by qualified immigration professional and were not invited by the Department pursuant to s 56 of the Act to submit additional information or attend an interview.
I accept that the applicant’s brother was a PCC member from around 2001 to 2011. The PCC, based in Sao Paulo, is the largest criminal group in Brazil. It is estimated to have around 40,000 members and 60,000 ‘companions’ (service providers), all of whom are subject to the rules and hierarchy of the group. The PCC is estimated to dominate 85 per cent of the 181 prisons in São Paulo. Its members are also spread across all Brazilian states and other countries.[5]
[5] UK Home Office, Report of a fact-finding mission, Brazil: Organised criminal groups (OCGs), December 2024

I accept that the applicant’s brother entered a plea deal following his arrest in connection with a robbery in 2011. While there is no specific reference to the PCC in the documentary evidence submitted to the Tribunal relating to the plea deal, I accept as credible that those involved in the robbery were PCC members and the information provided by his brother as part of the plea deal related to the activities of PCC members. This is generally supported by information in the Lawyer’s Letter. According to the court judgment (Annexure F to the Tribunal Statement), a co-accused (‘Mr B’) – who also entered a plea deal – was the leader of the criminal gang involved in the robbery. Mr B was responsible for the logistics of the group which specialised in the robbery of shops and [specific items] and Mr B’s [workplace] acted as the group’s headquarters. There is no indication in any of the documentary evidence that the applicant’s brother held a high-level or leadership role with the PCC. Based on the available evidence, I find that the applicant’s brother was an ordinary PCC member.
I accept that entry of a plea deal in 2011 caused the applicant’s brother to be at some risk of reprisals by the PCC. This is supported by information in the Record of Interrogation (Annexure E to the Tribunal Statement), the Lawyer’s Letter and credible country information. According to the UK Home Office, informants against the PCC or PCC members who transgress the rules of the group may face a risk of harm.[6] I accept that, following the plea deal, the applicant’s brother was transferred to a prison facility controlled by a rival faction of the PCC for his protection.
[6] UK Home Office, Report of a fact-finding mission, Brazil: Organised criminal groups (OCGs), December 2024
Based on the available evidence I do not accept that the incident in 2013 involving the applicant’s brother and a fellow prison inmate had any connection to the PCC. The Prison Report indicates that this was a spontaneous physical assault between the applicant’s brother and another inmate, who had harmoniously shared a cell for four months. The applicant has not provided any other evidence to indicate a connection with the PCC.
Based on the Lawyer’s Letter and Background Sheet, I accept that the applicant’s brother is currently held in a closed prison regime and in a facility not controlled by the PCC. I acknowledge that this offers him a degree of protection from PCC reprisals. However, according to the Tribunal Statement and Criminal Record, the applicant’s brother was granted a temporary release from prison from [December] 2016 to [January] 2017 over the Christmas period. He failed to return to return to prison and remained a fugitive until he was arrested [in] December 2017 in the course of committing a robbery. This amounts to a period of over one year in which his brother was living outside the protection of a closed prison. I acknowledge that he would likely have taken precautions to hide from the authorities after [January] 2017. However, considering that he was apprehended while committing a robbery, I have concerns that he was unable to be located during this one-year period by an organisation such as the PCC if he was a person of significant adverse interest or on a ‘PCC target list’ as claimed by the applicant.
I have significant concerns regarding the claim that the applicant’s mother received threatening calls, which included threats toward the applicant, following his brother’s plea deal. This was not mentioned in his Tribunal Statement, prepared with the assistance of his legal representative, and the applicant did not initially raise this with the Tribunal when asked about any threats received while in Brazil. It was subsequently raised in response to the Tribunal noting that he had referred to various threats in his protection visa application claims. It is further inconsistent with the second applicant’s oral evidence to the Tribunal. I do not find the explanations of the applicant or second applicant, that they had understood the Tribunal to be asking about in-person threats, to be convincing. If the applicant’s mother had genuinely received verbal threats from the PCC which extended to the applicant, I would expect this to have been raised in the Tribunal Statement and/or in response to questioning about any threats from the PCC.
I find the applicant’s return to his home area of Sao Paulo for almost two months in 2015 to further undermine his claims to have been personally threatened by the PCC following his brother’s plea deal. While I acknowledge his wish to see his family, I do not consider it plausible that he would return to stay with his mother in Sao Paulo for close to two months if he genuinely feared that he was a PCC target.
I have significant concerns regarding the claim that the applicant was threatened by a PCC member during a return visit to Sao Paulo in mid-2015. I have some concerns about the delay in disclosure of this claim given its significance and the relatively detailed information provided in the 2020 Statement. Given the circumstances of preparation of the protection visa application, I have not drawn an adverse inference about the credibility of this claim for reasons of the late disclosure. However, for the following reasons I do not accept this claim to be credible.
The applicant claims that he was recognised by a PCC member in the final week of his trip (early August 2015). According to Mr [A’s] supporting letter, this occurred [in] August 2015. The applicant had been in Sao Paulo, residing in his mother’s house since mid-June 2015. If the applicant was genuinely of adverse interest to the PCC, I have concerns that he received no contact for over one month, before being randomly threatened on the street.
I find the claim that the applicant would be targeted by the PCC to not be supported by country information. According to the UK Home Office, in general, family members of targeted persons do not become targets themselves. The limited instances in which family members do become targets include where a major betrayal/transgression has occurred, or if the targeted person held a leadership role whereby they had access to significant information about the organisation. The PCC’s code of honour is strict in that people are held accountable for their own actions, and not the actions of others, including their siblings.[7] As discussed above, I do not accept that the applicant’s brother held any high-level or leadership role with the PCC and, based on the available evidence, I do not consider his plea deal to amount to the level of a major betrayal or transgression.
[7] UK Home Office, Report of a fact-finding mission, Brazil: Organised criminal groups (OCGs), December 2024
If the applicant had genuinely been threatened by the PCC in 2015, causing him to realise that it was unsafe for him to return to Brazil, I have significant concerns with the further delay of five years in applying for a protection visa. Following their return to Australia in August 2015, the applicants applied for a further two student visas, amounting to a total of five student visa applications (including one that was refused) since 2013. As they acknowledged to the Tribunal, student visas allow for temporary residence in Australia with the expectation that the applicant will depart upon completion of their studies. They also indicated that they were pursuing an employer sponsored visa pathway. I find this to indicate a reasonable level of understanding of Australian migration pathways. I have had regard to their explanation that they did not become aware of a protection visa until 2020. However, considering the above and in circumstances where they clam to fear retaliation from an organisation such as the PCC, I do not consider this to sufficiently address my concerns.
I have had regard to the letter from Mr [A], which was submitted following the Tribunal hearing. In the Tribunal Statement, the applicant claimed that Mr [A] was too fearful to provide evidence against the PCC and was ‘unwilling to provide confirmation of this incident’. However, as acknowledged by the applicant the letter was digitally signed on 20 August 2025, around one week prior to the hearing. I have concerns regarding the late disclosure of this document. While I acknowledge the explanation in the Post-hearing Statement that Mr [A] did not previously consent for the letter to be submitted to the Tribunal, it is unclear why he would write this letter if he feared retaliation from the PCC and no further explanation is provided of why Mr [A] changed his position. In the circumstances, I have not placed any weight on this letter in assessing the credibility of this claim.
I find that the applicant’s mother and sister have not been threatened or harmed by the PCC at any time since his brother’s plea deal. In the circumstances, I do not accept that the applicant’s sister has regularly moved house to avoid harm from the PCC or that his mother’s relocation to Sergipe state had any connection with the PCC. There is no indication that the applicant’s brother’s partner or sons, the oldest of whom would now be around [age] years old, have been targeted or harmed.
I accept the applicant’s account of being mistaken for his brother by the police in 2007, his brother’s false use of the applicant’s identity; and the applicant’s anonymous assistance to the police in securing his brother’s arrest. I acknowledge that the applicant’s name appears in the court judgment (Annexure D to the Tribunal Statement) and in the Background Sheet. Aside from the incident of mistaken identity in 2007, I find that the applicant has not experienced any harm or been of adverse interest to the police in connection with his brother. I find that the applicant has not experienced any harm or threats of harm from his brother, the PCC or rival criminal groups. The second applicant confirmed to the Tribunal that she has not been personally targeted in connection with her brother-in-law.
Refugee and complementary protection assessment
In their particular circumstances, I find the applicants’ ‘home area’ or place of likely return to be Sao Paulo. Considering my findings above, I am not satisfied there is a real chance, being a possibility that is not remote or far-fetched,[8] that in the reasonably foreseeable future the applicant will face any harm from the PCC or a rival criminal group in connection with his brother’s criminal background if he returns to Sao Paulo. I have found above that there has been no previous harm or threats of harm from these groups, and in the accepted circumstances I find the chance of this occurring in the reasonably foreseeable future to be remote.
[8] Chan Yee Kin v MIEA [1989] HCA 62
I am not satisfied there is a real chance that in the reasonably foreseeable future the applicant will face harm from the Brazilian authorities in connection with his brother’s criminal background if he returns to Sao Paulo. I acknowledge that the 2007 incident of mistaken identity would have been distressing for the applicant. However, he was able to quickly resolve his identity with the authorities and did not experience any further adverse consequences. While I accept that the applicant’s name is included in his brother’s Background Sheet as an alias, I am not satisfied that this has previously caused the applicant to be targeted by, or of adverse interest to, the authorities. I find the chance of this occurring in the reasonably foreseeable future to be remote.
I am not satisfied there is a real chance that in the reasonably foreseeable future the applicant will face any harm from his brother if he returns to Sao Paulo. This claim is based on his brother becoming aware of the applicant’s involvement in anonymously reporting his location to the authorities in 2007. I find the chance of this occurring in the reasonably foreseeable future to be remote. There is no other evidence to suggest that the applicant’s brother would target him in the future.
Considering the above, I am not satisfied there is a real chance that in the reasonably foreseeable future the second, third, fourth or fifth applicants will face any harm from the PCC, a rival criminal group, the Brazilian authorities or the applicant’s brother in connection with [Brother A’s] criminal background if they return to Sao Paulo.
I find that the applicants do not have a well-founded fear of persecution and are not refugees as defined in s 5H(1) of the Act. 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. ‘Significant harm’ is exhaustively defined in

s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The real risk threshold has been held to equate to the real chance threshold.[9] For the same reasons as above, I am not satisfied there is a real risk that, as a necessary and foreseeable consequence of the applicants’ removal to Brazil, they will face significant harm from the PCC, a rival criminal group, the Brazilian authorities or the applicant’s brother.
[9] MIAC v SZQRB [2013] FCAFC 33
The applicants have raised concerns more generally about the prevalence of gang violence in Brazil, particularly with respect to the safety of their children. I acknowledge that violence and crime, including from criminal groups such as the PCC, are common throughout Brazil. Sao Paulo, like other major cities in Brazil, experiences high rates of crime ranging from petty theft to homicide, with financially motivated crimes such as armed robberies and home burglaries being prevalent.[10] Levels of violence are particularly high in poor neighbourhoods known as favelas with victims of violence being predominantly young, black and poor. Afro-Brazilians are disproportionately affected by crime and violence. Other groups disproportionately affected by violence are members of the LGBTI community, investigative journalists reporting on crime and corruption, and activists involved in land rights and environmental issues.[11]
[10] Overseas Security Advisory Council, Brazil 2020 Crime and Safety Report: Sao Paulo, 27 November 2020
[11] Freedom House, Freedom in the World 2025 – Brazil; US Department of State, 2023 Country Reports on Human Rights Practices: Brazil
Based on the available evidence, and considering my findings above regarding the risk of harm due to [Brother A’s] criminal background, I am not satisfied that the applicants have any profile that would cause them to be disproportionately affected by gang violence. While I accept there to be a risk of generalised violence, I find this to be a risk faced by the population of Brazil generally and not by the applicants personally. In the circumstances, I find that s 36(2B)(c) applies and am therefore not satisfied that the applicants face a real risk of significant harm in connection with gang violence as a necessary and foreseeable consequence of their return to Brazil.
I acknowledge that the third, fourth and fifth applicants, who have only lived in Australia, are likely to experience significant personal challenges in adjusting to life in Brazil. However, I am not satisfied that this amounts to persecution or significant harm.
The applicants have not raised any other claims to fear harm in Brazil and I find that none arise on the accepted facts.
Conclusions
For the reasons given above I am not satisfied that any of the applicants are persons 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: 28 August 2025
Representative for the applicants: Ms Emily Anne Young
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.
…