2204425 (Refugee)
[2025] ARTA 1722
•23 June 2025
2204425 (REFUGEE) [2025] ARTA 1722 (23 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mrs Thais Suyama Dinallo (MARN: 1687470)
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2204425
Tribunal:General Member Rosa Gagliardi
Date:23 June 2025
Place:Australian Capital Territory
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that:
·all of the above applicants meet s.36(2)(a).
Statement made on 23 June 2025 at 5:31pm
CATCHWORDS
REFUGEE – protection visa – Brazil – religion – Umbanda practitioner – particular social group – women – victim of family violence – hate crimes – death threats – attack on worship centre and homes – violence from previous partner – breach of intervention orders – mental health issues – state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2Any 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 on 8 March 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of Brazil applied for the visas on 7 February 2019. The delegate refused to grant the visas on the basis that there are appropriate laws in Brazil to protect religious minorities, such as practitioners of the Umbanda religion which the applicants claim to be.
The applicants appeared before the Tribunal on 24 April 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the second named visa applicant, the spouse of the first named applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
BACKGROUND
The applicants have consistently claimed they belong and practise the Brazilian religion called Umbanda which worships nature, spirits and Orixas. They claim to have suffered violence and prejudice as a result of their religious practices and have been accused of worshipping satan by their Catholic and Protestant neighbours.
The second named visa applicant has also claimed family violence from a former partner in Brazil.
The history of Umbanda can be traced back to the slave trade. West African peoples were unwillingly uprooted with no belongings, and so held onto their traditions and beliefs. Over the years, generations of people mixed their beliefs with the beliefs of their colonial masters, as well as indigenous natives of South America. These beliefs melded into their own new unique religion.[1] It also combines influences from Catholicism and many followers of Umbanda call themselves Catholics.[2]
Umbanda is a distinctive religion native to Brazil that draws upon beliefs and practices of Spiritism, indigenous and African religions. The central teachings of the religion are fraternity, charity and respect. Manifesting from the teachings of Umbanda are practices of pursuing a peaceful life predicated on respecting humanity, nature and Zambi (the supreme God). Followers of Umbanda are small in number due to historically being targets of religious persecution. Umbanda followers are mainly concentrated in cities with a greater number of Brazilians with African descendants, such as Rio de Janeiro.[3]
[1] Umbanda Religion | History, Beliefs & Ceremonies | Study.com
[2] Umbanda
[3]
At various points in Brazilian history, Afro-Brazilian religions have been repressed and treated as primitive and profane practices.[4] Hate crimes against practitioners of Umbanda and the other religion Candomblé in Rio de Janeiro represent 90% of the cases called into the state of Rio’s public complaints hotline.[5]
[4] Ibid.
[5] RioOnWatch, 18 November 2017, The Persecuted Faiths – RioOnWatch.
At the time of application, the applicants had not submitted a great deal of evidence concerning their claimed past harm in Brazil. The Tribunal notes that at the time of review, the applicants are now represented.
Evidence before the Tribunal
The hearing
The first named visa applicant came to Australia from Sao Paolo, Brazil, on a student visa in 2017. The applications were lodged on 7 February 2019. The first named applicant stated that the protection visa application was made delayed for various reasons. In the middle of 2018, his wife (the second named applicant) lost a baby. This period was difficult, and his wife suffered depression, and they decided to go and visit their families in Brazil for support. When they were there in Brazil for [number] days, they experienced again the attacks and threats they had experienced before they came to Australia initially. The student visas gave them several years’ reprieve from returning to Brazil, but they feared for the future of their family due to their religion.
The first named visa applicant stated that prior to dying recently his father told him not to return and to stay in Australia to protect his family. Even if he returned to Brazil to farewell his father his visa would not have permitted him to return to Australia.
The first named visa applicant explained that he had come to a country where he could practise his religion freely. His parents and siblings were not of the Umbanda religion but in his family, they had the liberty to find their spiritual pathways, even though in the main his family were Catholics. He stated that outside his nuclear family he had an uncle and aunt who practised in the Umbanda religion, and he followed them at the same centre (terreiros). Close friends also followed the religion. The first named applicant stated that he started going with his uncle and aunt to the centre at almost 20 years of age. The Umbanda religion was discriminated against by people who did not understand it. His parents asked him whether he was absolutely sure he wanted to join it due to the discrimination. The first named visa applicant stated provided the Tribunal with the name of the first centre he ever attended.
The first named visa applicant stated he was attracted to the religion because it had the well-being of the family at its heart and was a peaceful form of spiritual expression.
The applicant stated that he is a part of an Umbanda centre in [City 1], Australia and attended every fortnight. He sometimes took his family as well. A group of friends practised the Umbanda religion at a centre in [City 1] and the first named visa applicant had an “orientation” role as a spiritual helper (medium). They also received people in the centre who were undergoing difficulty finding themselves spiritually or who were facing some sort of life difficulty.
The applicant gave a detailed account of the tenets of the religion. He stated they did not have priests, but they had spiritual orientators.
The Tribunal asked the first named visa applicant to provide the details of the threats and discrimination he had undergone in Brazil. He stated that in the centre they did not put on their required garments due to fear and their centre was attacked. He suffered verbal aggression and was threatened with death due to his involvement with the Umbanda religion. The first time he went to the police he tried to get some protection against the aggression but as usual the police told him he needed more proof before they would protect him. He worked in [business 1s] in Brazil and once a customer saw his protection chord worn around his neck that was consistent with his beliefs, and a customer called the manager and asked him not to allow him to continue serving.
The Tribunal asked the first named applicant to provide context and detail about when the attack of their centre occurred. He stated it was in 2010 when he moved to Sao Paolo, and he started attending that centre. It was not an attack against the applicant directly but against people who attended that centre. He stated the first time they were in the centre behind closed doors, and someone went past and threw something like a Molotov cocktail at the building. When that happened, they came outside and there were broken tiles on the roof, and everybody was very fearful. Bystanders who witnessed it said that what they had undergone was not enough for what they had done because they were praying to a non-normal god.
Other instances of harm the first named applicant referred to was threats and he received a threat in writing stating that people who were part of that religion should die. He did not keep a copy of the threat but when he went to the authorities looking for protection, they told him that because he did not know the culprit, they could not take action, and they just took the document. He stated that he thought it was close to when they decided to come to Australia to study and forget what had happened. The note was left at gate to their home.
Another incident involved when they were at home watching TV and people going past shouted “Ah, the macumbeiro have returned”. They threw stones on the roof and that was a direct threat to him due to his religion.
Also, his wife suffered family violence from her previous partner, but it did not have anything to do with their religion. He was aggressive towards her, and she ended up reporting him and as the first named applicant was a part of her life at the time, her former boyfriend started again to persecute both.
The applicant stated that he feared returning to Brazil due to the threats they had received and the safety of his children due to his religion as well as the safety of his wife who had been a victim of family violence.
The first named visa applicant stated that it was he who made his wife familiar with the Umbanda religion. Previously she did not have a lot of knowledge, but then they both went together to the centre and volunteered there. She became a devotee when she fully understood the religion it filled a need for a spiritual life. They were dating at the time.
The second named visa applicant gave similar evidence about the harm suffered in terms of their religion as well as the serious family violence she had undergone in Brazil. She stated that her former boyfriend still asks her grandmother whether she had returned to Brazil. Last time they returned to Brazil he tried to harm her also. She had reported him to the police, and he was ordered to keep his distance from her, but he did not respect that order. The police did not receive her very well.
The Tribunal asked whether the second named visa applicant had told her psychologist about the persecution she suffered because of her religion. She stated she did especially during the time of her miscarriage and how her religion had helped her. She stated she the safety of her family if they returned to Brazil.
Materials submitted to the Tribunal
The applicants have submitted the following:
·Submission by the representative dated 13 March 2025, arguing among other things that the Department erred in finding that the applicants do not have a well-founded fear of persecution based on religious beliefs and incorrectly concluded that the Brazilian government provides adequate state protection against religious intolerance and gender-based violence. The submission also refers to relevant country information.
·Evidence of the second named visa applicant having made a police report in 2005 against an offender in which the second named visa applicant informed that her former boyfriend grabbed her by the wrists and pushed her to the ground, thereafter tightening his grip around her neck and delivering a slap to her face causing bodily injuries.
·Photo of [Leader A], founder and owner of the Umbanda [Centre 1], together with the first named visa applicant’s [Relative A],
[named]. The two have been photographed in a centre depicting a mixture of Christian icons together with Umbanda religious artefacts.·Certificate from the Federation of Afro-Brazilian Religions for [Leader A], confirming he was a spiritual leader.
·Other photos depicting the Umbanda centre’s prayer room and the applicant and her husband when they started working there together in their youth, in Brazil.
·Photo of the first-named visa applicant meeting with congregants in [City 1].
·Photos of the family in Canberra undertaking religious prayer out in the open and wearing religious symbols.
·Photos of the wedding of the first and second named applicants with symbols at their wedding and performing dance in honour of the Orixa with atabaques (drums), consistent with the Umbanda faith.
·Letter signed and dated 19 May 2025 by [Leader A], confirming he is the owner and founder of the Umbanda “[Centre 1]” located in [Town 1] where the first named visa applicant initially lived. [Leader A] refers to the first-named visa applicant first appearing in the centre as a young man with his aunt and that the first named visa applicant grew up inside the “terreiro”, and became a medium and a pillar for their community. He also wrote of the applicant, that he admired him as “he walks in Umbanda honours our history, because he understood that following this faith is much more than wearing white, it is transforming lives. He introduced his family to our entities, which protect his children and his marriage from all the evil may surround them”. [Leader A] also states that the first named visa applicant stood steadfast despite, “difficulties, prejudices, racism”.
·The first named visa applicant’s [Relative A] in Brazil also provided a written statement discussing how when the first named applicant was young she introduced him to the Umbanda faith, and “Umbanda was always looked upon with suspicion by many, even by people close to us, our relatives distanced themselves from us due to lack of knowledge, which at that time was very great the lack of understanding of our religion. How many times have we heard that it was “the devil’s thing” …How many doors closed, how many judgemental looks we had to face, fear when walking late at night after and being persecuted by protesters…”
·Letter of support from [Friend A], dated 17 May 2025, a long-term friend of the second-named visa applicant and long-term member of the terriero of Umbanda and a medium in the religion. She discusses how the first and second named visa applicants started volunteering at the centre and playing a role in organizing ceremonies and charitable acts. Further she writes, “Our community has suffered numerous prejudices and threats due to faith, [the applicant] was already present when our center was vandalized, someone had left a bible at the door to intimidate our community and we could hear someone shouting from afar offending us that we were creatures of the demon. These intimidations cause moral damage and fear to the attendees and members of the terriero”.
·Clinical psychologist’s report for the second named applicant referring to consultations held between August 2023 and September 2024. The report refers to the second-named applicant’s spiritual beliefs and how they helped her as a member of the Umbanda faith deal with crises and that the temple “functioned as a true spiritual family. The care and support provided by the mediums and spiritual guides created an emotional support network…”. The psychologist also states that the second named visa applicant presented with anxiety and a constant fear of returning to Brazil. She reported a history of spiritual repression, the need to hide important aspects of her religious identity and displayed significant features of post-traumatic stress resulting from domestic violence. During the sessions, the client reported multiple episodes of verbal abuse and prejudiced comments related to Umbanda, as well as having her faith questioned. This prejudice contributed to the development of withdrawn behaviour, leading the second named applicant to keep her spirituality entirely private and reserved, avoiding any public expressions or even conversations about the subject with those close to her. According to the psychologist, “The forced suppression of her spirituality generates psychological distress, feelings of anguish, and a deep sense of not belonging. She carries profound trauma resulting from experiences of religious intolerance and structural racism, which prevents her from freely practising her faith and spirituality”.
·In a statement the first named visa applicant refers to the rampant violence in Brazil being inimical to his beliefs including peace. He states that due to being a part of the Umbanda religion he has faced violence and prejudice. He has been accused of satanism by Catholic and Protestant neighbours and by persons at work when his religion was discovered. Further, he wrote, “We cannot tell the truth in Brazil or we get hunted, murdered and burned, that’s what happens to people in Brazil with people who seek for justice and the right things. Many people were killed investigating and fighting the corruption and the authorities’ violence like Marielle Franco murdered last year because she was advocating human rights”.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia 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 being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations Ministerial
In accordance with Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, 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.
REASONS AND FINDINGS
The issue in this case is whether the first named visa applicant or any of the members of the family unit face a real chance of serious harm on return to Brazil now or in the reasonably foreseeable future or, in the alternative, whether they face a significant risk of harm as set out in the Migration Act.
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Do the applicants satisfy the refugee criterion for protection?
The second-named visa applicant’s claims
The second-named visa applicant, in addition to her claims that she fears serious harm on account of her religion, has claims regarding family violence in Brazil. She has provided probative evidence that she suffered horrific family violence at the hands of her former boyfriend in 2005 (and possibly longer). The police report and her psychologist’s report indicate that she underwent such treatment and the medical evidence points to the second named applicant having post-traumatic stress disorder as a result of the extensive family violence she suffered.
The second-named applicant at hearing stated that she continued to fear such harm because her former boyfriend asked about her whereabouts through different relatives. The applicant claims her fears are based on the fact her former boyfriend was prepared to breach intervention orders with impunity and that he still wanted to control and possess her.
In theory, if the applicant were simply a member of a particular social groups – “woman at risk of family violence” and “woman suffering serious mental health issues”, the Tribunal might have some reservations in finding there was a real chance of her facing serious harm on return to Brazil. The real chance test requires the applicant to have an objective as well as subjective fear of harm. In addition, the test is future focussed. Country information is consistent with the second named visa applicant’s experiences in Brazil which reports that in 2022, 64 percent of women surveyed in Brazil reported that violence and harassment was the issue that worried them the most. Femicide and unequal rights and opportunities came in second and third, at 49 percent and 18 percent, respectively.[6]
[6] ‘Most important issues facing women in Brazil in 2022’, Statista,
The Guardian reported in July 2024, that:
Brazil has recorded unprecedented levels of rape and other forms of gender-based violence for the second year running, amid growing concerns over rightwing efforts to criminalize rape victims who have an abortion.
The data, released on Thursday in the annual report by the Brazilian Forum on Public Safety, showed that reported cases of rape rose by 6.5% from the previous year to a new historic high of 83,988 – or one every six minutes.
Experts say the figures are “even more alarming” against a backdrop of far-right activism, which includes a bill currently before the lower house of Congress that seeks to penalize rape survivors who seek a termination.
Every single indicator of gender-based violence increased in 2023 compared with the previous year, including murder (0.8%), sexual harassment (48.7%) and stalking (34.5%).[7]
[7]
The Tribunal notes that the violent events encountered by the applicant at the hands of her former boyfriend occurred in 2005, some twenty years ago and there is little objective information which would point to the second named applicant being of continuing interest to her former partner, although the Tribunal accepts that her fear is very real. Even if she continued to be of interest, the Tribunal has to consider whether the applicant could move away from her home area to an area in Brazil where there was not a real chance her former boyfriend would find her, although the Tribunal does accept that such a move would be difficult for the family.
The Tribunal also accepts that the authorities’ response was found wanting as the second named visa applicant’s former boyfriend breached his conditions and there was no enduring and effective protection for her by the state or authorities.
The second named applicant’s profile is multidimensional. She is also a member of a family unit who claim to be the targets of serious harm on account of their religion, the Umbanda religion, and whose mental health challenges have been complicated by her sense of not belonging and feeling vulnerable for openly practising her faith in her home country. The Tribunal is required, therefore, to assess the second named applicant’s claims cumulatively as well as individually, and as part of her family which practises the Umbanda faith.
The family unit’s practice of the Umbanda religion
At the time of application, the Tribunal notes that there was little supporting material to convince the decision-maker that the family were of the Umbanda religion and had practised this religion in Brazil and Australia, although this did not seem to be the focus of the Department’s inquiry. At the time of review, and being represented, the applicants have now provided incontrovertible evidence of their practises in Australia and their home country. The letters of support and the photographic evidence is consistent with the country information about the Umbanda religion, involving a mix of Catholic iconography and theology, indigenous South American practices, as well as traditional West African practices.[8]
[8] ‘Umbanda religion: History and Beliefs’, Learn Religions, Patti Wigington, Updated 29 November 2019, Umbanda Religion: History and Beliefs.
The letters of support are also consistent with the applicants’ evidence at hearing that it was the first named visa applicant’s aunt and uncle who introduced him to the religion and that he in turn introduced it to the second named visa applicant, who has found much solace in the religion which continues to be a defining feature of the family’s relationship. The photos of the family practising in the open in Australia are convincing, realistic and involve their children. The Tribunal also places significant weight on the photographic material depicting the first and second named applicants’ wedding in which totems of their religion were also depicted.
In terms of past harm, as a consequence of the evidence, the Tribunal accepts:
- The first named visa applicant has experienced physical and verbal threats as a result of his religion and that his place of worship was attacked by persons inimical to the religion; and
- The second named applicant was forced to conceal her practice of the Umbanda religion due to fear of persecution because of the general community’s animosity to the religion.
Having accepted that the family unit are all members of the Umbanda religion it must go on to make an assessment about whether there is a real chance that they would suffer serious harm were they to return to Brazil now or in the reasonably foreseeable future on account of their religion as per s.5(J) of the Migration Act.
The country information refers to the treatment of members of the Umbanda religion as well as the authorities’ response to any serious harm experienced by its members.
Religious intolerance is a problem in many parts of the world. But in Brazil, it’s become a big issue in recent years for some Brazilians, and in particular, for people who practice different forms of the country’s Afro Brazilian religions — Umbanda and Candomblé.
They have been facing prejudice, discrimination, attacks on their places of worship. And, researchers say, it’s only getting worse.
“Since the creation of Brazil, there has been a project to exterminate the Black population and everything that could be related with Afro Brazilian culture,” said Livia Casseres, the coordinator of racial equality at the Rio de Janeiro ombudsman’s office. “Today, we are in this situation of complete abandonment by the state. And rising levels of violence and intimidation.”
Every few days, there’s another headline about a new attack on an Afro Brazilian religious temple — stoning, vandalism, fire and death threats.
Members of African-derived religions in Brazil say the current wave of attacks they’re facing is an extension of the racism and persecution that goes back to the days of slavery, first from the Catholic Church, then the Brazilian state. But today, researchers say, fundamentalist Christians are behind most of the attacks.
And in Rio de Janeiro, many of them are aligned with criminal groups.
“In Rio de Janeiro, there’s been a growing relationship between some radical neo-Pentacostal sectors and criminally armed paramilitary groups,” Casseres said. “And this has pushed the violence against religious temples to absurd levels.”
In 2019, those groups made a violent push to shut down 15 Afro Brazilian places of worship in one neighborhood. Last year, there were 1,564 cases of religious intolerance just in the state of Rio de Janeiro alone. That’s according to the Public Security Institute, a Brazilian nongovernmental organization. It shows an increase of more than 10% compared with the previous year.
Members of Afro Brazilian churches blame President Jair Bolsonaro for fuelling this climate of fear and hate, with his incendiary rhetoric.[9]
[9] ‘Afro religious groups are under attack’, The World, by Michael Fox, 29 July 2022, Afro Brazilian religious groups are under attack - The World from PRX.
Furthermore:
In Brazil, followers of traditional Afro-Brazilian religions are facing violent attacks from neo-Pentecostal neighbours and gangs who consider their religion to be demonic and evil. In 2017, hate crimes against practitioners of Umbanda and Candomblé in Rio de Janeiro represented 90% of the cases reported to the state of Rio’s public complaints hotline. Reported cases of religious discrimination nationwide had increased 4960% in five years.
Regular attacks on worshipers began approximately one year after Father Márcio Virginio opened a Candomblé house in northern Rio de Janeiro. Stones were thrown from the neighbouring building, breaking parts of the roof and an image of Caboclo, an orixá worshipped in the house. “When we find a broken image of a spirit it makes me sad, because it is the home of our sacred entity.” Father Márcio put a tarpaulin over the courtyard to prevent people from being hit by the stones being thrown during religious ceremonies. “My house has a lot of old people, people who come in wheelchairs. People already arrive in fear.”
Father Márcio reported the assaults to the police when they became more frequent. He says he went to the station at least 20 times to make more complaints. “They did nothing,” he says. Advocates of religious freedom see a link between police inaction and prejudice.
The rise in violence appears to be linked to a rise in neo-Pentecostalism among members of criminal gangs, with drug traffickers attempting to banish traditional religions from the drug territories they control. In September 2017, the terreiro of the priestess Carmen de Oxum was attacked in Nova Iguaçu. In a cell phone recording of the attack a trafficker can be heard giving orders to destroy the sacred objects:
“Break everything, put out the candles, for the blood of Jesus has power… All evil must be undone in the name of Jesus.”[10]
[10] ‘Persecution of Afro Brazilian traditional religions’, Freedom Of Religious or Belief Learning Platform, Persecution of Afro-Brazilian traditional religions | FORB Learning Platform.
In addition:
Media outlets reported cases of religious intolerance in different parts of the country. Acts of religious intolerance ranged from derogatory name calling of an Afro-Brazilian religious ritual to destroying places of worship. Although only approximately 2 percent of the population are followers of Afro-Brazilian religions, including Candomblé and Umbanda, a disproportionate number of cases registered by the human rights hotline continued to involve practitioners of Afro-Brazilian religions. Media and other sources reported instances of religious intolerance and discrimination against individuals and communities, especially intolerance and discrimination impacting Afro-Brazilians, and an increase in antisemitism and the presence of neo-Nazi groups. In November, media outlets reported that a 16-year-old wearing military-style clothing and a swastika killed four persons and wounded 12 at two schools in the town of Aracruz in Espírito Santo State and that his motives for the killings were unclear. In October, representatives of Indigenous communities denounced before the UN Human Rights Council the increase in systematic violence motivated by religious intolerance, including the burning of Indigenous places of worship by members of some evangelical Christian groups.
During the year, U.S. embassy officials engaged with government counterparts to emphasize the importance of religious freedom, including for minority religious groups. Embassy and Washington officials discussed the promotion of religious freedom with their counterparts during the virtual U.S.-Brazil Human Rights Dialogue in February. Embassy officials raised concerns with the government about reports of widespread intolerance of Afro-Brazilian religions and the rise in antisemitism. Embassy officials also discussed the importance of interfaith dialogue, peace, and religious tolerance with these government officials. Embassy and consulate officials engaged in activities that promoted religious freedom, including attending Candomblé and Umbanda ceremonies, visiting a synagogue, and meeting with religious leaders representing Jewish and Afro-Brazilian faiths.[11]
[11] 2022 Report on International Religious Freedom: Brazil, US Department of State,
And:
The expression “evangelical drug trafficker” may sound incongruous, but in Rio de Janeiro, it’s an increasingly familiar phenomenon.
Charismatic Christianity is on the rise across Brazil. Even Rio, a famously libertine city, elected an evangelical mayor last year. Now, evangelical Protestantism is so far-reaching in Rio that even some of the city’s most notorious drug dealers claim to be spreading the gospel.
I study violence in Latin America, and I’ve observed a sharp increase in reports of religiously motivated crimes in Rio de Janeiro over the past year, in particular attacks on “terreiros” – the temples belonging to the Candomblé and Umbanda faiths.
Brazil’s evangelical turn
Persecution of these Afro-Brazilian religions, whose adherents are largely poor black Brazilians, has been around since the 19th century. But studies in Rio – both mine and those of other crime researchers – suggest that the current wave of religious bigotry is more pointed, and more violent, than in the past.
While statistics confirming this new trend are still poor, the increase in religious hate crimes appears to coincide with the spread of evangelical Protestantism in Brazil.
Today roughly a quarter of all Brazilians identify as Protestant, up from 5 percent in the 1960s. Many Brazilian Protestants attend mainstream services. But the fastest-growing denominations in Brazil are the hard-line Pentecostals and Neopentecostal churches – including the wildly successful Assembly of God and the Universal Church of the Kingdom of God.
That’s also true in politics. Evangelical lawmakers currently hold 85 of 513 seats in Brazil’s lower house of Congress, meaning that the religious right is shaping the national debate on gay rights, racial equality, women’s reproductive health, education and other social issues.
Rio de Janeiro saw a 30 percent increase in evangelicals from 2000 to 2010. Over the same period, the number of Catholics and followers of Candomblé and Umbanda dropped by 9 percent and 23 percent, respectively.
Most converts are poor people attracted to the evangelical doctrine of personal salvation. Today, evangelical leaders in Rio’s impoverished favelas routinely deliver a message of fidelity, purity and prosperity.
Some of them also have a dim view of Afro-Brazilian religions. For preachers espousing a binary spiritual worldview, “good” Christians must wage holy war against “evil” practitioners of Candomblé and Umbanda.
As Edir Macedo, the multi-millionaire bishop of the Universal Church of the Kingdom of God, wrote in his 1997 book “Orixás, Caboclos and False Gods or Demons”, Afro-Brazilian religions “seek to keep us from God. They are enemies of Him and the human race … This struggle with Satan is necessary…to eternal salvation.”
The book sold more than three million copies before it was banned by federal authorities in 2005.
Religious ‘cleansing’
For some analysts, this theological interpretation is just thinly veiled religious discrimination.
Still, parishioners – including a handful of drug kingpins who control favelas across Rio – are heeding the call to arms. For these evangelical criminals, Candomblé and Umbanda are Satan’s work, and they must be stamped out, one terreiro at a time.
Fernandinho Guarabu, a 38-year-old don in Rio’s Terceiro Comando Puro gang, is an example. Sporting a tattoo of Jesus Christ, Guarabu is known for violently “cleansing” his community – the Morro do Dendê favela – of practitioners of Afro-Brazilian religions.
According to a state hotline dedicated to tracking religious intolerance, more than 30 terreiros were destroyed in fewer than 20 days during September 2017, and reports of religious discrimination have increased 119 percent since 2015.
Adherents of Afro-Brazilian religions living in gang-controlled areas report personal harassment, too. Followers are often prohibited from practicing their faith, and people caught wearing the religious garb of Candomblé and Umbanda may be expelled from the community.
According to representatives of a newly launched Commission on Combating Religious Intolerance, drug traffickers are responsible for a sizable number of these cases.
The prison-to-church pipeline
A small group of evangelical preachers in Rio de Janeiro’s favelas may have inspired these anti-Candomblé and Umbanda crusades, but the problem escalated in prisons.
A decade-long war on drugs has fueled mass incarceration. Brazil’s overcrowded state prisons are essentially governed by one of two competing drug trafficking organizations with the government only nominally in control.
Gangs have long recruited their rank and file from prisons, and incarcerated members stay busy organizing trafficking and racketeering businesses.
Faith groups, too, have a long tradition of working with prisoners. The Universal Church and Seventh Day Adventists, among others, run programs in those same prisons, from drug treatment to restorative justice.
Previously, these ministries were predominantly Catholic. Today, of the 100 faith-based organizations subcontracted to run social programs in prisons, 81 are evangelical churches.
As a result, Charismatic Christianity has spread quickly through the criminal justice system. Jailhouse conversions are common. Evangelized inmates are frequently housed in separate prison wings that stand out for their order and cleanliness. Some have even established their own ministries inside jail.
Life in Baixada Fluminense
For drug kingpins, developing positive relationships with local Rio pastors while in jail can tighten their grip on power once released.
Converted traffickers control many of the city’s favelas, but the violent heartland of evangelical trafficking is Baixada Fluminense, a sprawl of townships in Rio’s poor northern outskirts.
Over the past century, the area has seen waves of migration from Brazil’s north and northeast, where Afro-Brazilian religions prosper. Baixada Fluminense is now home to at least 253 Candomblé and Umbanda terreiros, more than any other municipality in the state.
The Baixada Fluminense is also one of Rio’s most dangerous corners. Murder rates have fallen slightly across most of the city over the past decade, but not in Baixada Fluminense. According to the Institute for Public Security 1,486 of a total 4,197 reported homicides in the state so far in 2017 occurred in Baixada Fluminense.
Described by locals as a “Wild West,” the area is home to famously corrupt public officials who have long worked with militia and mafia groups to intimidate their rivals. This practice – called “coronelismo,” or patronage – allows drug traffickers, evangelical or otherwise, to operate with impunity.
Fighting back
Rio de Janeiro state officials are taking note of this worrying new strain of violence. In the wake of attacks on Afro-Brazilian terreiros in Nova Igaçu, a municipality in Baixada Fluminense, the Joint Commission to Support Victims of Attacks on Religious Institutions was launched.
Working alongside a newly established task force dedicated to tackling racial crimes and intolerance, the state commission aims to map religious violence and resolve outstanding cases, including those involving evangelical drug traffickers. It will also make recommendations to prevent violence in the name of God.
People of faith are fighting back, too. In September 2017, some 50,000 people joined Rio’s 10th annual walk for religious freedom, the largest gathering since the procession’s inception. The iconic Copacabana beach was packed with evangelicals, Catholics, Baha'i, Buddhists, Jews, Hari Krishnas and others – all dressed in white and marching in solidarity with Afro-Brazilians.[12]
[12] ‘In Brazil, religious gang leaders say they’re waging a holy war’, The Conversation, Robert Muggah,
The first named applicant at hearing referred to the role of gangs and the rise of Protestantism and fundamental Christianity and how this is reflected in the political landscape and attitudes towards Umbanda.
In terms of whether Brazil has a reasonably effective law enforcement, criminal justice system and judiciary, the Tribunal has referred to the following country information:
A new report by a group of UN experts shows the dramatic impact of systemic racism in law enforcement in Brazil and lays out recommendations for public security policies that abide by the law, uphold rights, and protect all.
The International Independent Expert Mechanism to Advance Racial Justice and Equality in Law Enforcement (EMLER)—created in 2021 in response to a global outcry over the police killing of George Floyd in the US a year before—gathered more than 100 testimonies from victims of police violence, their families, and affected communities during a 12-day visit to Brazil in 2023.
Human Rights Watch had joined forces with scores of organizations in urging successive Brazilian administrations to invite the expert panel to visit Brazil. The government later said that it had invited EMLER in response to civil society requests.
The EMLER report is a sobering read, as it highlights the structures of racism that millions of Black Brazilians painfully experience daily. But it also shows a path forward, through the adoption of a human rights-based approach to public security.
On October 2, the experts shared their findings during the 57th session of the Human Rights Council in Geneva. In a statement at the session, Human Rights Watch called on the Brazilian government to take urgent measures to end a history of police brutality against people of African descent.
The representative of the Brazilian government at the session said the report was “an opportunity” to “coordinate efforts and find solutions” to address police violence and promised to thoroughly examine EMLER’s recommendations.
The EMLER final report, which cites Human Rights Watch research, echoes our longstanding recommendations to adopt a national strategy to “drastically reduce the number of killings by law enforcement” and ensure “prompt, effective, and independent investigations” in all cases of excessive use of force.
Every year, police officers kill more than 6,000 people in Brazil, with people of African descent being three times more likely to become a victim than white individuals. The cases of violence are not isolated, the experts noted, but “show an alarming pattern” and have resulted in “deep and generalized erosion” and “profound lack of trust” in law enforcement, particularly among “marginalized communities.”
Human Rights Watch has documented how police abuse and the resulting breaking of trust have undermined public security in Brazil. The mistrust makes communities less willing to collaborate in criminal investigations and fuels a cycle of violence that endangers both civilians and police officers. Widespread impunity for police abuses compounds the problem.
Citing our research, UN experts highlighted “serious gaps” in the investigations. Police killings in Brazil are investigated by police themselves, which, they noted, “compromises the credibility and impartiality of the investigations.” In addition, forensic experts are often part of the civil police itself — a system that also undermines independence.
The Inter-American Court of Human Rights has also ordered that killings by police be investigated by “an independent body, distinct from the public force involved in the incident,” with the support of forensic experts “unrelated” to the law enforcement agency that allegedly committed the abuse. Human Rights Watch has urged the National Council of Prosecutor’s Offices to approve a resolution that would ensure that prosecutors lead investigations into all killings by security forces.
In a written submission to EMLER, Human Rights Watch described police practices to cover up illegal use of lethal force, such as the removal of victims’ clothing, planting false evidence, intimidating witnesses, and taking the bodies of victims to the hospital and claiming they were merely injured as a ruse to destroy crime scene evidence. We also explained how investigators often fail to examine the crime scene, interview witnesses, properly question police officers involved in shootings, or conduct adequate autopsies.
A key step forward would be for Brazil to implement the Minnesota Protocol on the Investigation of Potentially Unlawful Death, which sets out guidelines for investigating suspicious deaths, and other international standards, a recommendation endorsed by EMLER. The EMLER report also calls for the establishment of well-resourced specialized prosecutor units to improve oversight over police in Brazil. Human Rights Watch has argued that such units would allow prosecutors to develop expertise in cases of police killings and shield them from the risk of retaliation for investigating abuses by police officers in their jurisdiction.
The need to reform police also includes better support for officers to fulfill their duties to protect the public. As the independent experts noted, the number of police officers who died by suicide increased 26 percent in 2023 compared to the previous year. Human Rights Watch has also recommended improving psychological care for police.
The independent experts also highlighted Brazil’s abusive “war on drugs,” which has been used as justification for deadly raids in communities across the country, fueling the overrepresentation of people of African descent in prison and poor conditions in detention—concerns that Human Rights Watch has long shared.
Brazilian authorities should address “entrenched discrimination in law enforcement and the criminal justice system” identified by the UN experts. Their report offers helpful recommendations to implement public security policies that are not only fair, but also more effective. [13]
[13] ‘UN Experts Spotlight Devastating Police Brutality in Brazil’, Human Rights Watch, Andrea Carvalho, 10 October 2024, UN Experts Spotlight Devastating Police Brutality in Brazil | Human Rights Watch.
The first named visa applicant is of mixed origin, hence given such a mixed heritage, it is not difficult to see how as a follower of Umbanda he would be imputed with Afro racial characteristics as well – characteristics which the police and the state are inimical too in the current climate where race is also a factor in the inter-play between religion and persecution.
The country information highlights that the police response to hate crime and the protection of Umbanda religious followers is not effective, in not following up with reports of abuse and destruction of the terreiros also going unattended. In March 2022 a man was reportedly on his way to an Umbanda religious centre in Goiânia, Goiás State, when three unidentified individuals chased him, called him a “macumbeiro” (a derogatory term opponents of Afro-Brazilian religions use to describe practitioners of Afro-Brazilian beliefs), and said he was wearing “demon” accessories. According to the victim, when he reported the incident to police, the police chief declined to register the report and instead asked the victim to “pray.”[14]
[14] 2022 Report on International Religious Freedom: Brazil, US Department of State,
This lack of engagement by the authorities is in part due to the racial and political views towards those practising the Umbanda religion and is reflective of societal views overall. Regarding the judicial system, the below refers to engaging the judiciary in corporate law matters, but it is apposite in considering other criminal and civil matters:
Companies face a high risk of corruption in Brazil's judicial system. The judiciary in Brazil is formally largely independent, but is hampered by corruption and limited capacity (BTI 2016). Companies operating in Brazil are most likely to encounter corruption at local levels of the judiciary, where local political and economic interests have a heavy influence (BTI 2016). Corruption is a problem in this sector as judges are susceptible to bribery (BTI 2016). The Brazilian judiciary is heavily overburdened and bureaucratic, leading to lengthy processes and a backlog of unheard cases (HRR 2016). Contract disputes in Brazil can be similarly lengthy and complex (ICS 2016). Companies perceive the judiciary as insufficiently independent and the regulatory system to settle disputes and challenge regulations is considered inefficient (GCR 2016-2017). The time required to enforce a contract in Brazil is slightly below the regional average (DB 2017).[15]
[15] ‘Brazil Risk Report’, GAN Integrity, 22 October 2020, Brazil country risk report | GAN Integrity.
Brazil was also well-known for the corruption scandal which appeared to engulf many strata of society including the political level.
Brazil’s largest-ever corruption probe, known as the Lava Jato (Car Wash) investigation, exposed a web of graft across Latin America and beyond, rocking the political and economic establishment in more than a dozen countries.
What began in 2014 as a money-laundering investigation soon unearthed corruption at the highest levels of Brazil’s government and at companies including state-owned oil firm Petroleo Brasileiro (Petrobras) and construction giant Odebrecht, now called Novonor, which offered bribes in exchange for contracts in Brazil and abroad. Lava Jato resulted in nearly 280 convictions, returned about $800 million to Brazilian state coffers, and sparked offshoot investigations around the world. Forty-one countries have formally asked Brazilian authorities for legal cooperation, and multiple former and current heads of state, most notably in Brazil and Peru, have been implicated.[16]
[16] ‘Lava Jato: See how far Brazil’s corruption probe reached’, Amelia Cheatham, 19 April 2021,
As far as police go:
Companies should note the risk of corruption and external influence in Brazil's police sector. The police force is entrenched in corruption, violence, and acts with impunity (BTI 2016; FitW 2016). Powerful landlords in remote or rural areas of the country have significant influence over the police (BTI 2016). Companies do not find the police reliable and attribute significant costs to mitigate crime and violence (GCR 2016-2017).
Prominent federal police officer Newton Ishii, a key investigator in the probe into corruption at the state-owned company Petrobras, was arrested on corruption charges himself in June 2016 relating to earlier convictions for participating in a smuggling ring (Reuters, Jun. 2016).[17]
[17] ‘Brazil Risk Report’, GAN Integrity, 22 October 2020, Brazil country risk report | GAN Integrity.
Police collusion with criminal gangs is also reported:
Dozens of police officers and over 100 alleged drug traffickers have been arrested over six years in northeast Brazil, spreading fears that security forces are colluding with criminals in increasingly complex ways across the country.
On February 2, 17 members of the military police and 14 suspected drug traffickers were detained in the state of Ceará during the latest round of Operation Genesis, an ongoing security operation aiming to dismantle corruption within the police.
The dhttps:// officers were allegedly bribed by a drug trafficking gang for “privileged information” on their criminal rivals, allowing the gang to dominate the drug trade in parts of Ceará’s state capital, Fortaleza, as well as in the municipalities of Caucaia, Pacatuba, and Maranguape, according to a press release by the Ceará Attorney General’s Office. The officers also sold weapons and ammunition that they had seized from criminals, the press release stated.
The number of arrested police has piled up since Operation Genesis began in 2016. At least military police officers have faced charges of drug trafficking, robbery, weapons trafficking, and criminal association.
In parallel, 120 police officers, prison guards, and firefighters have been fired in Ceará on suspicion of various criminal and administrative charges.
In November 2022, a three-part podcast, “Maçãs Podres” (Rotten Apples), by Brazil’s regional newspaper, Diario do Nordeste, detailed how deep these connections run. In the podcast, the newspaper explained that specialized squads of complicit police officers and prison guards form corrupt relationships with criminal groups inside prison and on the streets.[18]
Conclusion
[18] ‘Brazil Case Illustrates Struggle with Corrupt Police’, 14 February 2025, Chris Dalby, Brazil Case Illustrates Struggle With Corrupt Police.
Having taken into account the applicants’ credibility, the supporting documentation as well as the country information, the Tribunal finds that there is a real chance that the applicants on return to Brazil now or in the reasonably foreseeable future, face a real chance of significant harm in that they will suffer significant physical harassment and significant physical ill‑treatment and that due to their religion they may also find they are prevented from subsisting due to the discrimination faced by persons of the Umbanda faith.
The Tribunal also finds that the state authorities are not effective in dealing with hate crimes
because of the political, religious and racial overlay of discrimination towards persons of the Umbanda faith.For the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s.36(2)(a).
DECISION
The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that:
·all of the above applicants meet s.36(2)(a).
Representative: Mrs Thais Suyama Dinallo (MARN: 1687470)
Date of hearing: 24 April 2025ATTACHMENT - 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.
…
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