2204375 (Refugee) - [2025] ARTA 1259

2204375 (REFUGEE) [2025] ARTA 1259 (22 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2204375

Tribunal:General Member M Bailey
Date:22 April 2025

Place:Brisbane
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 22 April 2025 at 10:33am
CATCHWORDS
REFUGEE – protection visa – Brazil – particular social group – homosexual man – people living with HIV – sexual assault – access to HIV medication and treatment – mental health issues – anti-LGBTI+ violence – substance abuse – state protection – MERCOSUR agreement – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA [1989] HCA 62
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 11 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 16 April 2021. 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 lodged a review application with the former Administrative Appeals Tribunal (AAT) on 25 March 2022. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The applicant was represented in relation to the review by a lawyer from the HIV/AIDS Legal Centre. On 20 March 2025, the representative advised the Tribunal that the applicant was in immigration detention and requested that the review applications relating to his protection visa refusal and Bridging visa C cancellation be expedited.
The applicant appeared before the Tribunal at the Brisbane Registry on 16 April 2025 to give evidence and present arguments. His representative attended the hearing by videoconference. Relevant evidence from the Tribunal hearing is outlined below. I explained to the applicant that my role is limited to assessing whether he engages Australia’s protection obligations and does not involve any consideration of the character issues that resulted in the cancellation of his Bridging visa.
BACKGROUND
The applicant is [an age]-year-old male from Sao Paolo, Brazil. He first arrived in Australia on a [Student] visa [in] April 2013. Since that time, he has departed Australia on 2 occasions (in 2014 and 2015) for visits to Brazil. His final arrival in Australia was [in] April 2015 on a [Student] visa. His final Student visa ceased on 27 August 2020.
The applicant provided copies of several Brazilian identity documents, including his passport, to the Department of Home Affairs (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.
CLAIMS AND EVIDENCE
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
According to the protection visa application, the applicant was born and resided in Sao Paolo until his departure for Australia in April 2013. His parents reside in Sao Paolo. He has 2 [brothers] who reside in Australia. He completed a university degree in Brazil and before departing for Australia was employed in several roles including as [details deleted]. Between 2014 and 2016 he completed several courses of study in Australia and worked in various [specified] roles. He enrolled in a [Course 1] in 2017, from which he withdrew in March 2020.
Regarding his claims for protection, the applicant stated that he was diagnosed as HIV positive in March 2018 while in Australia. This diagnosis, together with his sexual orientation as a gay man, has significantly increased his fear of returning to Brazil. He fears that he will be subject to serious societal harm in Brazil, including physical and psychological harm and severe stigma and discrimination. He does not think the police would protect him as they generally do not investigate crimes against the LGBTI community.
In a statutory declaration dated 15 April 2021, the applicant provided the following additional details:
i.He always felt anxious in Brazil as a gay man and feared abuse, violence and harassment. He was in a same-sex relationship in Brazil when he was 20 years old. On the few occasions that he and his partner were affectionate in public, people would make derogatory comments and sometimes yell and threaten them. This made him feel that he had to be very discreet about his sexuality to avoid harm.
ii.While he was at university in Brazil, there were many violent crimes against members of the LGBTI community and discrimination against LGBTI persons was prevalent. He heard reports of LGBTI people who had sought help from the police but their complaints were dismissed without investigation. This caused him to be fearful of approaching the police for help.
iii.While studying in Australia he was in a same-sex relationship for almost 2 years. When they broke up, he experienced mental health issues and started engaging in reckless, self-destructive behaviour. He sought counselling and was diagnosed with anxiety and depression. In March 2018, a few months after his relationship ended, he was diagnosed as HIV positive. This caused a deterioration of his mental health. He felt ashamed and suicidal and found it difficult to open up to friends or family about his diagnosis.
iv.He turned to substance abuse and sexual encounters to deal with his mental health problems. This led to difficulties with his employment and studies. In October 2019 he began engaging in sex work to support his drug habit and fund his studies. In March 2020 he had to withdraw from his [Course 1]. He tried to save money to re-enrol before his Student visa ceased in August 2020 but was unable to do so.
v.He fears returning to Brazil because of violence and discrimination toward the LGBTI community and stigma and misunderstanding regarding HIV. He fears that he will be unable to access HIV medication in Brazil without incurring excessive financial costs. He fears that his HIV status would become known and he would be ostracised and face discrimination in relation to employment. His parents cannot financially support him and he fears that he may be forced to resume sex work. He also fears that returning to Brazil will cause a deterioration in his mental health and a relapse into substance abuse.
A letter dated 17 March 2021 from a specialist sexual health physician at [Health Service 1] was submitted confirming the applicant’s HIV diagnosis in March 2018. The letter also states that the applicant commenced taking antiretroviral medication in March 2018; his current medication is ‘Biktarvy’; and these medications have resulted in an undetectable HIV viral load. During the applicant’s attendance at psychology sessions, he has expressed a fear of returning to Brazil because of his sexual orientation and HIV diagnosis.
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 homosexual 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 such that 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.
Evidence before the Tribunal
Pre-hearing evidence
The applicant’s representative provided a 58-page legal submission together with an Outline of Claims, both dated 14 April 2025. It is submitted that the applicant satisfies the refugee definition for reasons of his actual or perceived membership of various particular social groups, both individually and cumulatively, described as ‘Homosexual men in Brazil’; ‘People living with HIV in Brazil’; ‘People with mental illness in Brazil’; ‘Sex workers in Brazil’ and ‘Drug users in Brazil’. A range of country information is cited regarding societal violence and discrimination toward the LGBTI community in Brazil, stigma and discrimination toward people living with HIV, and the inadequacy of state protection. It is submitted that the applicant would face persecution throughout Brazil, including in areas generally perceived as LGBT friendly such as Rio de Janeiro. The submissions also address the applicant’s ability to obtain protection in a third country under the Southern Common Market or ‘MERCOSUR’ agreement, as discussed below.
The applicant provided a further Statutory Declaration dated 9 April 2025. Relevant information is summarised below:
i.He started realising that he was different from a young age. He was bullied a lot at school because of his sexual orientation and from 14 years of age he developed a lifetime of unhealthy sexual habits, including using sex to avoid dealing with his emotions.
ii.While in his final year of university in Brazil, he was in a same-sex relationship. They lived in constant fear of being attacked as people always yelled slurs at them. His partner passed away in 2012 due to not receiving adequate treatment for a bacterial infection. Following his death, rumours spread around his workplace that he had died from HIV. This was unfounded and was based solely on his sexual orientation.
iii.In early 2013, while intoxicated at a party, the applicant was sexually assaulted by a man and woman. He has not disclosed this to anyone previously, including by reporting it to the authorities, as he felt a lot of shame and was not trusting of the police in Brazil.
iv.Following his HIV diagnosis in March 2018 he felt suicidal and did not know how to cope. He used sex and substance abuse to distract himself. Between 2017 and 2021 he engaged heavily in substance abuse, particularly methamphetamines, and from October 2019 became involved in sex work. He believes this was in part caused by his fear of returning to Brazil following his HIV diagnosis. He experienced periods of being homeless and the COVID pandemic exacerbated the difficulties he was experiencing.
v.With the support of drug rehabilitation and mental health services, he has turned his life around. He is sober and no longer relies on sex work for income. He has now lived in Australia for more than 10 years and has the support of his partner, brothers and friends in Australia.
vi.He fears that he will experience violence, stigma and discrimination in Brazil as a homosexual person living with HIV. There is a high level of homophobic violence in Brazil and crimes against the LGBTI community frequently go unpunished. He fears that he will be unable to access adequate HIV treatment, mental health treatment or drug rehabilitation supports in Brazil. He also fears that his HIV status would become known to the community, and this would trigger his mental health issues and lead to him relapsing into drug use and sex work.
A letter dated 7 April 2025 from a Clinical Psychologist with [Health Service 1] was submitted, stating that the applicant has engaged with the service since 2018 for the treatment of anxiety, depression and substance use disorder (now in stable remission). The applicant has attended 16 sessions with the author since late 2023 and has recently experienced heightened anxiety about returning to Brazil because of his sexual orientation and HIV diagnosis. The author states that the applicant’s return to Brazil is likely to have a negative impact on his health and well-being.
Evidence from Tribunal hearing
The applicant confirmed that his 2 brothers continue to reside in Australia. They initially arrived on student visas and have since gained permanent residency through partner visas. Both his brothers are also gay. He is in regular contact with his brothers and has told them about his HIV diagnosis. He maintains contact with his parents and agreed that they have generally supported him, including assisting him financially with his initial Student visa. However, he has not told them about his HIV diagnosis as he is worried about their reaction. He grew up in a conservative, religious environment and felt that he had to hide his sexuality. He never fully came out to his parents, including while he was in a same-sex relationship. However, he understands that his parents are aware of his sexuality. In the last election, his parents supported an openly homophobic candidate which was very upsetting for him. This caused a rift between him and his parents for a period of time. If he were to return to Brazil, he would not feel comfortable telling his parents about his HIV diagnosis. His parents are not aware of his previous substance abuse or involvement with sex work.
Asked whether he lived openly as a gay man in Sao Paolo, the applicant stated that he did not feel safe to do so. He had to explore his sexuality in secret and feared negative attitudes and treatment if he were to live openly. When he returned to Brazil in 2014 and 2015 to visit his family, he felt that he had to supress or hide himself, including in his manner of dress.
Asked when he became aware of the option of applying for protection in Australia, the applicant stated that it was around late 2020 and confirmed that he had no prior awareness of a protection visa.
I discussed with the applicant that I will need to assess whether he faces a real chance of harm if he were to return to his home area of Sao Paolo. I raised with the applicant country information from a December 2024 report by the UK Home Office which indicates that in general LGBTI persons are not subject to persecutory treatment by the state. Since gaining power in 2023, President Lula has spoken in support of LGBTI rights and taken steps to strengthen government protections. However, the report acknowledges that Brazilian society is generally conservative and holds traditional views and there are high levels of societal violence toward the LGBTI community. While acknowledging some failings regarding law enforcement, the report concludes that the state is generally willing and able to offer sufficient protection from non-state actors. Cities such as Sao Paulo and Rio de Janeiro are referred to as areas where LGBTI persons have a higher degree of freedom to express their sexual orientation and/or gender identity.[1]
[1] UK Home Office, Country Policy and Information Note Brazil: Sexual Orientation, gender identity and expression, December 2024
The applicant responded that positive government initiatives do not necessarily change negative societal attitudes and there is no accountability among the police for crimes against the LGBTI community. This contributes to an underreporting of such crimes in Brazil. He never felt safe in Brazil because of his sexuality and does not think he could ever fully be himself if he has to return. He would always have to ‘police’ or monitor himself and would live in a state of fear.
The applicant’s representative made brief oral submissions addressing the views in the UK Home Office report regarding the adequacy of state protection and the underreporting of crimes against the LGBTI community.
FINDINGS AND ASSESSMENT
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 set aside and remitted for reconsideration.
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
As did the delegate, I accept that the applicant is gay and was diagnosed in early 2018 as HIV positive. These claims are supported by medical evidence submitted to the Department and the Tribunal. Based on the overall consistency of his written claims and his oral evidence to the Tribunal, I accept the entirety of the applicant’s additional evidence to be credible. I accept that that he experienced verbal abuse from the community while in a same-sex relationship in Brazil and was generally discreet about his sexuality while living in Brazil due to a fear of societal harm. I accept that he was never fully open with his parents regarding his sexuality and has not told them about his HIV diagnosis due to a fear of their reaction.
I accept that the applicant was sexually assaulted in 2013 in Brazil and did not feel able to report this incident to the police. Considering the highly sensitive nature of this claim and that he was not offered an interview with the Department, I have drawn no adverse credibility inference due to the late disclosure of this claim.
I accept that the applicant has experienced mental health issues in Australia following his HIV diagnosis which led to a period of substance abuse and involvement in sex work.
Based on the applicant’s circumstances, I find that if he were to return to Brazil, he is likely to return to Sao Paolo, being his previous place of residence and the area in which his parents continue to reside.
Refugee assessment
In determining whether the applicant has a well-founded fear of persecution, I have considered relevant country information, including that referenced in the delegate’s refusal decision and Pre-hearing legal submissions and outlined below.

There are no laws criminalising consensual same-sex sexual conduct between adults and same-sex marriage, civil partnerships and adoptions are legal in Brazil.[2] Brazil has been at the forefront of HIV treatment and prevention in Latin America, being the first country to provide free highly active antiretroviral therapy. Access to free HIV medication and treatment for all citizens has been available in Brazil since 1996.[3] According to the 2024 UK Home Office report, there is no information in the sources consulted that state actors systematically target LGBTI persons. The vast majority of reports of human rights violations against LGBTI persons relate to acts committed by non-state actors.[4]
[2] UK Home Office, Country Policy and Information Note Brazil: Sexual Orientation, gender identity and expression, December 2024
[3] UN Office on Drugs and Crime, Brazil has been at the forefront of HIV treatment and prevention in Latin America says the scientific journal, 26 February 2018; 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
[4] UK Home Office, Country Policy and Information Note Brazil: Sexual Orientation, gender identity and expression, December 2024
In general, Brazilian society has conservative views, linked to religion and traditional family values. Various sources indicate that Brazil has one of the world’s highest levels of anti-LGBTI violence, with the highest number of recorded violent deaths of LGBTI persons in the world every year from 2021 to 2023. Former President Bolsonaro and other public officials made strong anti-LGBTI statements and discontinued governmental agencies which advanced LGBTI rights. During Bolsonaro’s tenure, the marginalisation of LGBTI persons was exacerbated.[5]
[5] UK Home Office, Country Policy and Information Note Brazil: Sexual Orientation, gender identity and expression, December 2024; Freedom House, Freedom in the World 2024: Brazil
According to a 2019 report in The Rio Times, Brazil is still a predominantly Catholic country but one also experiencing explosive growth in evangelical Christianity. Both groups constitute powerful conservative social forces ensuring the hegemony of heteronormativity and reinforcing traditional gender roles. At the same time, Brazil contains a vibrant LBGTQ community and has an ‘international reputation (albeit undoubtedly exaggerated) for sexual permissiveness’. The article notes that a ‘rural machismo culture, open hostility, and discrimination towards sexual minorities is still surprisingly common in Brazil’ and ‘its cities are not safe environments for the public expression of sexual orientations or gender identities that differ from traditional norms.’[6]
[6] The Rio Times, Brazil’s LGBTQ Challenge, 28 May 2019
The US Department of State identifies crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, or intersex persons as an ongoing significant human rights issue in Brazil. 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, with sources indicating that 33 per cent of companies avoided hiring LGBTQI+ employees.[7]
[7] US Department of State, 2023 Country Reports on Human Rights Practices: 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.[8]
[8] 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)
A paper published in 2023 analysing responses to the 2019 National Health Survey found that about half of the LGB+ respondents reported having experienced some kind of violence in the previous 12 months, and they had around twice the chances of experiencing any type of violence compared to people who self-identified as heterosexuals. The odds ratio was found to be significantly higher for sexual violence, with LGB+ people almost five times more likely to be victims.[9]
[9] Machado de Vasconcelos and others, Violence Against LGB+ people in Brazil, 1 April 2023 cited in UK Home Office, Country Policy and Information Note Brazil: Sexual Orientation, gender identity and expression, December 2024
According to a 2024 contribution to a forthcoming thematic report of the United Nations Independent Expert on Sexual Orientation and Gender Identity and Expression by a group of Brazilian governmental and non-governmental organisations, it is estimated that LGBTI+ persons are 2.52 times more likely to suffer physical violence than others. In 2022, 2,324 LGBTI+ persons were victims of physical assault. The authors note that even though the country’s legal and normative frameworks condemn discrimination, 65 per cent of LGBTI+ persons declare to be afraid of holding hands in public. The threat of violence operates as a form of coercion because it makes LGBTI+ persons scared and insecure in publicly expressing their sexual orientation and gender identity, particularly in small urban areas and the countryside where religious traditional values are pervasive.[10]
[10] ANTRA and others, Contribution to IE SOGI on LGBT+ violence, 31 January 2024 cited in UK Home Office, Country Policy and Information Note Brazil: Sexual Orientation, gender identity and expression, December 2024
According to a December 2020 article by Open Democracy, discrimination and violence against Brazil's LGBTQ communities are widespread, yet often underreported, with the full dimensions of violence against LGBTQ people remaining unclear due to a lack of official and non-governmental data. Where threats, attacks, injuries and killings are recorded at all by Brazilian authorities, they rarely register the underlying motive. Most available data involving violence against LGBTQ people is produced by non-government advocacy and research groups.[11] This view is consistent with the 2024 UK Home Office report which states that official data on violence against LGBTI persons is widely seen as incomplete, as not all states report and disaggregate their data accordingly. Additionally, reported numbers of violent deaths of LGBTI persons vary by civil society organisation and numbers are considered to be higher in reality as a result of underreporting and limitations in data gathering.[12]
[11] Open Democracy, Brazil’s LGBT community faces surging violence, but they’re fighting back, 9 December 2020
[12] UK Home Office, Country Policy and Information Note Brazil: Sexual Orientation, gender identity and expression, December 2024
The Open Democracy report refers to the reasons for anti-LGBTI violence as including 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.[13]
[13] 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.[14]
[14] Open Democracy, Brazil’s LGBT community faces surging violence, but they’re fighting back, 9 December 2020
Regarding people living with HIV, sources indicate that despite state efforts to combat stigma and discrimination, 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.[15] 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.[16]
[15] 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)
[16] 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
The UK Home Office report concludes that in general, LGBTI persons in Brazil do not face treatment that is sufficiently serious by its nature and/or repetition, or by an accumulation of various measures, to amount to persecution or serious harm. However, some individuals may be able to show differently on the facts of their case. Within the LGBTI community, transgender persons face an elevated risk of serious harm due to increased visibility and involvement in sex work, especially if they are black or mixed race, and of lower socio-economic status. Gay men, particularly those who are black, mixed race and of lower socio-economic status, also face a heightened risk. Whether the treatment of LGBTI persons meets the high threshold for persecution will depend on the specifics of each case.[17]
[17] UK Home Office, Country Policy and Information Note Brazil: Sexual Orientation, gender identity and expression, December 2024
Considering the above, I am not satisfied that the applicant would face a real chance of persecutory harm from the state, including in regard to accessing adequate HIV treatment. However, I am satisfied that based on a cumulative consideration of the applicant’s particular circumstances, there is at least a real chance, being a possibility that is not remote or far-fetched,[18] that he would face societal harm amounting to persecution in the reasonably foreseeable future if he were to return to his home area of Sao Paolo 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.
[18] Chan Yee Kin v MIEA [1989] HCA 62
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 considerably higher due to underreporting. The above information indicates that gay men face a heightened risk of harm. Having regard to the level of stigma and discrimination experienced by persons living with HIV in Brazil, I find that the applicant’s HIV status would further increase his chance of experiencing serious harm. I am satisfied that the applicant’s previous mental health and substance abuse issues are additional factors of vulnerability and may lead to re-engagement in sex work which would increase the risk of harm from non-state actors.
I acknowledge that large cities such as the applicant’s home area of Sao Paolo are generally considered to be more tolerant and accepting of the LGBTI community. As noted in the UK Home Office report, Sao Paolo, Rio de Janeiro and Salvador are known for their Pride parades and have a reputation for being LGBTI-friendly. However, the same report references a significant number of incidents of targeted violence toward LGBTI persons in Sao Paolo and acknowledges that, even in large cities such as Sao Paolo, open displays of affection between LGBTI persons are generally met with disapproval.[19] This is consistent with the applicant’s evidence of his experiences while living in Sao Paolo, such that he felt compelled to act discreetly regarding his sexuality. I am satisfied that if he were not to modify his behaviour, there is a real chance that he would face harm for the reasons outlined above.
[19] UK Home Office, Country Policy and Information Note Brazil: Sexual Orientation, gender identity and expression, December 2024
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 life and/or 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). As discussed above, country information indicates that significant levels of violence and threats of violence against the LGBTI+ community occur throughout the country, including in large cities such as Rio de Janeiro which are often perceived as ‘gay-friendly’. Smaller regional and rural areas, which tend to hold more traditional, conservative and religious views, are considerably less tolerant toward the LGBTI community.[20] I am also satisfied that stigma and discrimination toward persons living with HIV apply throughout Brazil. I am satisfied 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.
[20] UK Home Office, Country Policy and Information Note Brazil: Sexual Orientation, gender identity and expression, December 2024
I acknowledge the reasoning in the delegate’s decision regarding the effectiveness of state protection and the view of the UK Home Office that Brazil has a functioning police force, laws and avenues of redress in place for LGBTI persons and in general, the state is willing and able to offer protection to the LGBTI community.[21] I also acknowledge that since gaining power in early 2023, President Lula has vocalised his support for LGBTI rights and has begun to rebuild institutional agencies to protect these. While various anti-LGBTI bills continue to be proposed, and several are in force at the state and municipal levels, some have been challenged and struck down by the judiciary.[22]
[21] UK Home Office, Country Policy and Information Note Brazil: Sexual Orientation, gender identity and expression, December 2024
[22] UK Home Office, Country Policy and Information Note Brazil: Sexual Orientation, gender identity and expression, December 2024
Further to the country information discussed above regarding significant levels of anti-LGBTI violence and prejudice amongst law enforcement officials, a 2023 report by ‘OSAC’ (a public-private partnership between the US Department of State’s Diplomatic Security Service and security professionals from US organisations operating abroad) states that according to civil society, underreporting of crimes against the LGBTI community is ‘rampant’ because many LGBTI+ persons are afraid they might experience discrimination or violence while seeking services from law enforcement.[23]
[23] US State Department OSAC, Brazil Country Security Report (LGBTI+ Travellers), 18 July 2023
A May 2024 report relating to research carried out with an LGBTQIA+ group in Rio de Janeiro shows that, although most have suffered some type of violence, many are afraid to go to a police station and report the crime. When they are registered, many of these occurrences end up being archived when forwarded to the Public Prosecutor's Office. Among those who actually went to a police station (186 people out of the 515 interviewed), 28 per cent said that the specification of ‘LGBTphobia crime’ was refused by the police station and 14 per cent said that they were able to register, but only after insisting. A survey was also undertaken with the Public Prosecutor's Office of the State of Rio de Janeiro to monitor the cases of LGBT-phobia that reached the agency. After the complaint is investigated by the Civil Police, the cases are forwarded to the Public Prosecutor's Office so that a complaint can be formalised. Data collected in the last 4 years shows that less than half (48.6 per cent) of the cases were formalised as complaints.[24]
[24] Agencia Brasil, Police Officers Are Poorly Prepared to Deal with LGBTphobia, 16 May 2024
Considering the above, I am not satisfied that the applicant could access effective state protection against persecution from non-state actors. I therefore find that effective protection measures as defined in s 5LA would not be available to the applicant.
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.
Protection in a third country
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.
I acknowledge that the MERCOSUR agreement provides reciprocal residency rights to citizens of Member States, being Uruguay, Brazil, Argentina, Paraguay, Bolivia, Chile, Colombia, Ecuador, and Peru. As raised in the Pre-hearing legal submissions, there are various practical or procedural issues in regard to the implementation of the MERCOSUR agreement and 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.

In addition to these limitations, I am satisfied that the applicant is likely to experience particular difficulties residing in a third country due to his HIV status, including accessing necessary antiretroviral 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, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Act.
Date of hearing: 16 April 2025
Representative:   Ms Ashley Ognenovski
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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