1501656 (Refugee)

[2016] AATA 4549

1501656 (Refugee) [2016] AATA 4549 (12 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1501656

COUNTRY OF REFERENCE:                  Brazil

MEMBER:Nicola Findson

DATE:12 October 2016

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 12 October 2016 at 10:59am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Brazil, applied for the visas [in] March 2013 and the delegate refused to grant the visas [in] January 2015.

   Background and Protection Claims

3. The Tribunal has before it the Department’s [file] and the Tribunal’s file relating to the applicants’ protection visa application.  The Tribunal also has had regard to the material referred to in the delegate’s decision, as well as other material available to it from a range of sources.

4. The first named applicant was born in [State 1], Brazil, in [year].  The second named applicant is his wife, who was born in Fortaleza, Brazil, in [year].  The applicants were living in Fortaleza before they came to Australia [in] August 2012, as the holders of [temporary] visas, which remained valid until [March] 2013. 

5. In their application for a protection visa lodged with the Department [in] March 2013, the applicants claim that they fear harm returning to Brazil because they received death threats and their home was hit in a drive by shooting after discovering a corruption scheme. 

6. As to questions asking what they fear will happen to them if they go back to Brazil and who they think may harm them, the first named applicant states that he fears they may lose their lives at the hands of the local Government and the Police.  The applicants state that the authorities would not protect them if they return to Brazil because “Brazil is a very corrupt and violent country and the authorities are often involved in unlawful and corrupt organisations”.

   The Delegate’s Decision

7. In a decision record, the delegate sets out his finding and reasons for refusing to grant the applicants protection visas.  In summary, the delegate made relevant findings on the applicants’ statutory effective protection.  In particular, the delegate found that the applicants as citizens of Brazil have access to effective state protection in a third country – namely, in other countries across Latin America and Europe - by operation of the treaties of Mercosur/Mercosul, the Agreement between the European Union and the Federative Republic of Brazil on short stay visa waiver for holders of ordinary passports and the Union of South American Nations.  The delegate went on to find that the applicants have a present right to enter any Mercosur members states in Latin America, including the countries neighbouring Brazil, using either their Brazilian passports or a valid ID card; and are entitled to reside in these countries for a period of time which in most cases may exceed three months without conditions; and is entitled to receive temporary residence after arrival with a view to gaining permanent residence providing they meet certain reasonable conditions.  Furthermore, the delegate found that under the Agreement between the European Union and the Federative Republic of Brazil on short stay visa waiver for holders of ordinary passports, which is enacted into legislation, the applicants are permitted to enter and reside in any EU member state for a period of 3 months, using their Brazilian passports. The delegate then found that pursuant to s.36(3) of the Act, Australia is taken not to have protection obligations in respect of the applicants because the delegate found the applicants had not taken all possible steps to avail themselves of the right to enter and reside, whether temporarily or permanently, in any EU or Mercosur member country.

   Application for review

8. The applicant applied to the Refugee Review Tribunal on 4 February 2015 on 4 February 2015, for a review of the delegate’s decision.  The Tribunals Amalgamation Act (Cth) 2015 took effect on 1 July 2015.  Transitional provisions of that Act had the effect that an application for review to the Refugee Review Tribunal (now abolished) is taken to be an application to the Administrative Appeals Tribunal.

   Submissions to the Tribunal

9. The second named applicant provided a statement to the Tribunal prior to the hearing.  That statement repeated and elaborated on the claims set out in the protection visa application.

10. The statement set out:

    “Our life is in danger in Brazil since 2012 when we were threatened.  I am a [occupation] and I used to work in [an organisation] where I had a special need [client].

    One day, after work, at night time we had a visit at our house of my director, asking me to sign a document that said I had more than one disabled [client].  I knew the [organisations] earned extra money for each special need [client], so I refused to sign that document.  Few days later, we received a phone call saying we had to leave Brazil, otherwise someone was going to kill us.  After that, we were scared but then we believed it was a prank call.  We kept going our normal life until we have been surprised by three shots at the gate of our house.  This event made us to move from there in the next day.  We went to [first named applicant’s] parents house in a different state in Brazil.  We applied for a visa to Australia and stayed there until the visa was granted.  Then, we left our country to come to Australia and few days later we were told that [an official] of [the department relevant to applicant’s occupation] of our city had been arrested for corruption.  That fact just confirmed that those shots were related to those docs I haven’t signed…”

    Evidence given at the Tribunal Hearing

11. The applicants appeared before the Tribunal on 15 December 2015, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

12. The applicants were represented in relation to the review by their registered migration agent.  The representative did not attend the Tribunal hearing.

13. The first named applicant provided background about his family, education and employment history.  He confirmed his parents, who are retired, and [siblings] remain living in [State 1], Brazil.  He said he completed his schooling at the [number]^th grade level.  He confirmed that he was living in [Town 1], Fortaleza, and working as a [occupation] before he and his wife came to Australia. 

14. The second named applicant told the Tribunal that her parents and [siblings] remain living in Fortaleza, Brazil.  Her parents are both working – her mother is [occupation] and her father works [for] a government department.  She said she obtained her [qualification] from [a university] in 2003.  She said she worked as a [occupation] before she came to Australia with her husband.

15. The applicants told the Tribunal that they do not have any family members in Australia. 

16. The applicants confirmed they arrived in Australia [in] August 2012.  The first named applicant was a dependent on his wife’s [visa].

17. The applicants said that they maintain contact with their families on a weekly basis.

18. The first named applicant said they had always had plans to visit Australia, before their problems in Brazil.  They had done their research and discovered that it would be a good, secure life in Australia.

19. The second named applicant told the Tribunal that she completed a six month English course when they first arrived in Australia.  She said that after she completed her study, she worked as [occupations].  The first named applicant told the Tribunal that he has worked [in] compliance with the conditions of his visa, since he and his wife arrived in Australia. 

20. When asked what their plans were when they arrived in Australia, the first named applicant told the Tribunal that he and his wife hoped to stay and live in Australia.  He said it was not their intention to return to Brazil.

21. The Tribunal sought to confirm the basis for the applicants’ claims for seeking protection in Australia.  The first named applicant told the Tribunal that they had received a phone call from an anonymous person telling them to leave the country or they would die.  At first, he said, they thought it was a prank call.  He said that after the threatening call, three gun shots were fired at their house.  He said both he and his wife were home at the time, but they were not hurt.  The shots hit the gate and front wall.  After that, they decided it was a serious matter and that they had to leave their home. He said that they did not have much time to organise themselves.  He said that they already had Australia in mind to come to. 

22. The applicants could not recall when it was they received the threatening phone call.  The first named applicant said he thinks it was in June 2012.  He said the call came late in the day when both applicants were at home.  The first named applicant, at first, told the Tribunal that the gun shots were fired at their house the day after they received the threatening call, but then clarified that they occurred a few days afterwards.

23. The Tribunal was told that the government had unravelled a lot of corruption in the city the applicants were living in.  The applicants said that this included the award of money to [organisations] for disabled [people]. 

24. The Tribunal was told that the person who would have been behind the threatening call and the gun shots was [an official of a] Department in [Town 1] – known as “[Ms A]”.  When asked why they were so certain that this person was responsible, the first named applicant told the Tribunal that a few days before the threatening call, a [director] of the [organisation] the second named applicant worked at ([name]) had visited her at home and asked her to sign a [form].  It was explained to the Tribunal that in Brazil, [particular organisations] receives payment from the government for any disabled [client they assist].  The [form] that the Director wanted the second named applicant to sign listed names of several [clients] that [were not at the organisation]. 

25. The second named applicant told the Tribunal that she refused to sign the [form] when she was asked to, because she only had one disabled [client] [and] she was afraid there would be problems for her if she did sign it.  She told the Tribunal she never imagined that when she refused to sign the form, it would lead to problems for her.  She said she was not left with an impression from the Director that there would be problems for her not signing the form.

26. The second named applicant spent two years [at] the [organisation].  She said it was a small [organisation], with only [number] [clients].  She said she was responsible for [a number of clients], only one of whom was disabled.  She said she had one [staff] working alongside her.

27. The second named applicant said that other [staff] had also received a visit from the Director, but she could not provide the names of those other [staff].  She said she is a very quiet and shy person and did not seek this information.  But, she recalls overhearing that the Director had visited another [staff member].  The second named applicant said she did not know whether her [staff] had been visited. 

28. The applicants did not report the threatening call or the gun shots at their home to the police.  They were going to, but instead they moved to the second named applicant’s parent’s home in Fortaleza.  When asked why moving in to the second named applicant’s parents’ home stopped them reporting the matter, the applicant said that in Brazil, the police cannot be trusted.

29. The Tribunal was told that while the applicants have been in Australia, they have heard from friends back in Brazil, that [an official of the] Department in [Town 1], has been jailed for corruption matters.

30. When asked to comment on the possibility of the telephone threat and/or gunshots being a random, criminal act and unrelated to the second named applicant refusing to sign the [form] or any corruption by [an official of the] Department, the first named applicant replied that it was normal for violence to happen in Brazil, but, in their street there are only two houses, so it was likely that they were targeted and that this was not a random attack.

31. The Tribunal asked the applicants what they feared would happen to them if they returned to Brazil.  The second named applicant said that they would die.  She went on to say that after the applicants came to Australia, the applicants learned from reading a newspaper that [Ms A] had an unaccounted [amount] in her personal bank account.  The applicant could not remember the name of the newspaper and were not able to provide a copy of the article.  The applicants said that they do not know whether the [official] is still imprisoned or whether she has been freed.

32. The Tribunal queried why the applicants would be of interest to the [official of the] Department at all.  The first named applicant responded that if the gun shots had not been fired at their house, they would not be afraid.  But, he said they are scared of this situation and of returning to Brazil.  They would feel unprotected if they returned to Brazil.  The second named applicant told the Tribunal that the [official of the] Department would be interested in pursuing them “for money”.  She said that they would be a target of the [official] from inside or outside jail. She said they are not aware of whether the [official] has recovered from her anger of being charged and detained.   The applicants said they live in a country where the law does not work.  They said life in Brazil means very little and people kill each other for very little money.  

33. When asked if any other [staff] from her [organisation] had faced problems, the second named applicant said she did not know because she has not maintained any contact with her old colleagues.

34. The Tribunal asked the applicants about who they feared harm from if they returned to Brazil.  The second named applicant said that it might be the police that they fear harm from, because they could have been ordered by the [official of the] Department to harm the applicants. The Tribunal indicated to the applicants that it had difficulty with their response because given the [official of the] Department had been imprisoned for corruption this indicates that the authorities were effective in upholding the law and dealing with the matter against the [official] in this case.  The first named applicant said in Brazil there are 3 types of police – civil, military and federal police.  He said that the police responsible for imprisoning the [official] were the Federal police.  But, he said that that they believe the [official of the] Department is being protected by the civil and military police.  He said that this is because the Judge who presided over the [official of the] Department’s matter was subsequently killed by the military police.  The applicant said that in Brazil, they never know who to trust.    

35. The Tribunal was told that the second named applicant’s actions in refusing to sign a fraudulent document had not had any impact on either of their families. The Tribunal was told that the applicants went to stay in Minas Gerais, a two day drive from Fortaleza, for a short while with family before they came to Australia.  They said that for the time they were there, they were worried they would cause some problem for the family.  However, their families – in Fortaleza and Minas Gerais - have not encountered any problems.

36. The Tribunal invited the applicants to comment on the question of them relocating to another part of Brazil to avoid the harm they fear.  The first named applicant responded that if they moved to another city, it would only delay what could possibly happen to them.  He said it is very hard to hide from someone in Brazil, because a person can be monitored anywhere they go, by way of their “CPF” number.  He said that they would eventually be tracked down wherever they went in Brazil.  He said that there is nowhere in Brazil they would be safe.

37. The Tribunal asked why the applicants waited to lodge an application for protection visa application until just prior to the expiry of their [visas].  The applicant said that firstly, they did not know that they could apply for a protection visa.  The first named applicant said that when their visas were almost expired they approached an agent to ask about the issue of making an application to stay in Australia.  He said it was always their intention to stay in Australia. 

38. When asked to comment on the apparent right they have to enter and reside in other countries which have an agreement with the Federative Republic of Brazil, including other Mercosur member countries as well as countries across the European Union, to escape the harm they fear in Brazil, the applicant said that they had already decided they wanted to live in Australia.  He said that it was true that the doors of other countries were open to them, but some of those countries were not very safe.  He said that they are unsafe because they are countries where you see people being robbed and killed by others; and where it is not safe to leave your home.  The applicant also said that after they arrived in Australia and got to know what it was like to live here, they made up their minds to apply to continue to live here.  He said that they would never return to Brazil. 

39. The Tribunal put it to the applicant that based on country information to it, it appeared there was not a real chance they would face serious harm, or a real risk they would face significant harm, if they entered and resided in another eligible country.  It also put to the applicant that based on the country information before it, it did not appear the applicants would be removed from those other countries and returned to Brazil, or any other country, where he might face a real chance of serious harm, or a real risk of significant harm.  The Tribunal invited the applicants to comment on this.  The applicants offered no other evidence or argument that they faced serious or significant harm in another Mercosur country or any country of the European Union.

40. When asked if they had made any inquiries about going to live and reside in another eligible country, the first named applicant responded that if they had to go to another country it would not be Brazil.

    RELEVANT LAW

41. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

    Refugee criterion

42. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

43. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

1. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

2. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

3. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

4. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

5. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

6. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

7. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

8. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

   Complementary protection criterion

9. 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 a protection 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 the applicant 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’).

10. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

11. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

12. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

    Member of the same family unit

13. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in this case is whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention.

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of reference

16. The Tribunal has considered the documentary evidence provided to the Department by the applicants and referred to in the delegate’s decision record.  This includes copies of the passports issued to the applicants by the Republic of Brazil.  Having regard to this evidence, the Tribunal finds that the applicants are nationals of Brazil. 

17. On the basis of the finding in the previous paragraph, the Tribunal finds that the country of reference for the assessment of refugee claims, and the receiving country for the assessment of complementary protection claims, in this case is Brazil.

    Assessment of claims

18. The Tribunal accepts that the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that he or she satisfies all of the required statutory elements. Section 5AAA of the Act provides it is the responsibility of the non-citizen to specify all particulars of his or her claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim.  Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the Tribunal to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

19. In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the applicant’s claims.  This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.  

20. The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established.  Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547). On the other hand, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (See MIMA v Rajalingam (1999) 93 FCR 220).

21. After reviewing all of the evidence before it, the Tribunal finds the applicants to be witnesses lacking in credibility and it rejects all of their claims.  It does so for the following reasons:

    ·The applicants’ evidence at the hearing was extremely vague and undetailed.  In particular, the Tribunal found the evidence concerning the alleged threatening telephone call and gun shots being fired at the front of their house lacking in detail. For example, the applicants gave changing evidence to the Tribunal about when they received the telephone threat and how long after this the gun shots were fired at their house.  Given that the applicants claim to have fled their home country on the basis of these alleged incidents, the Tribunal would have expected some consistency in their evidence as to the timing of these significant events.  The applicants’ evidence as to who would target them for harm, and why, was also vague, confusing and implausible.  The applicants were unable to recall the full name of “[Ms A]”, an ex- [official of a] Department in [Town 1], who they claim to fear harm from.  Nor did they give any plausible or credible explanation of why it is they would be targeted by her if they were to return to Brazil.  It was the applicants’ evidence that they learned that “[Ms A]” had been imprisoned in connection with corruption matters after they arrived in Australia, and also that they were unaware of whether “[Ms A]” was still in prison.  Also, they did not give any evidence about being involved in the criminal proceedings which ultimately led to the conviction and imprisonment of “[Ms A]”. Other aspects of their evidence, such as “[Ms A]” giving orders to the police to harm them, despite the fact that she herself had been pursued and imprisoned for her offences, was also unconvincing.  The second named applicant’s evidence about the circumstances of the alleged visit by the Director of her [organisation], to be asked to sign a falsified [form] was also extremely vague and undetailed.  When the Tribunal asked the second named applicant about the Director’s visit, she vaguely responded that she had been asked to sign the document; she did not sign it for fear that she would get into trouble for doing so; and she was not left with the impression from the Director that there would be problems for her not signing the form.  When the Tribunal asked about whether any other [staff] had been approached to sign the document, she responded that other [staff] had received a visit from the Director, but she could not provide the names of those other [staff] because she was quiet and shy and did not seek this information.  When the Tribunal asked if she was aware of any other [staff] facing problems at the hands of “[Ms A]” for not signing the form, the second named respondent responded that she did not know because she had not maintained any contact with her old colleagues.  The Tribunal has taken into account the stresses that applicants can experience in a Tribunal hearing environment, but it still finds that their evidence was extremely vague and undetailed in many respects and that it detracts significantly from their overall credibility.

    ·The first named applicant told the Tribunal that they were going to report the alleged telephone threat and the gun shots to their house to the police but instead focussed on moving out of their house and in to live with the parents of the second named applicant.  When it was suggested to him that they could have lodged a complaint with the police after they had moved out of their house, the applicant replied that the police could not be trusted.  The Tribunal considers this evidence to be contradictory.   The Tribunal does not find it plausible or credible that the applicants would not have sought the assistance of the police at some stage after the alleged incidents occurred, especially after indicating to the Tribunal that they initially intended to, and given the harm they say they experienced as well as its impact upon them. 

    ·The Tribunal found the evidence that there had been no further threats made, or actual harm suffered, by either the applicants or their families, since the applicants left Brazil in 2012, also undermines their claim that they fear serious harm from the ex-[official of a] Department in [Town 1], or from anyone else if they return to Brazil. 

    ·The Tribunal finds the delay between the applicants’ arrival in Australia in August 2012, and the lodgement of their application for protection visas just before their [visas] ceased in March 2013, also detracts from their credibility.  The Tribunal rejects the applicants’ explanation for the delay when they claim they did not know about a protection visa, as it finds them to be persons capable of informing themselves of their visa options in Australia.  This is particularly so given the applicants evidence was that they had always intended applying to remain living permanently in Australia. The Tribunal notes that it is legitimate to take into account an applicant’s delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant’s claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).

22. Given these fundamental credibility concerns, the Tribunal does not accept that the Director of the [organisation] the second named applicant [worked] at, visited her while she was at home one evening and asked her to sign a falsified [form] to enable the [organisation] to apply for more money from the government; or that the second named applicant refused to sign this form.  Nor does the Tribunal accept that the applicants received a threatening telephone call or had gun shots fired at their house.  The Tribunal does not accept that that the applicants are of any adverse interest to “[Ms A]”, ex- [official of a] Department in [Town 1], or the Brazilian police, or anyone else.  The Tribunal finds that the chance that the applicants will face serious harm at the hands of the ex-[official of a] Department in [Town 1], the police or anyone else (for any reason, Convention or non-Convention) upon return to Brazil in the reasonably foreseeable future to be remote and not real.  For the same reasons, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Brazil that there is a real risk that they will suffer significant harm from the ex-[official of a] Department in [Town 1], the police or anyone else.

    Cumulative assessment

23. Considering all the applicants’ claims cumulatively, the Tribunal finds that they do not face a real chance of persecution in the reasonably foreseeable future in Brazil for any reason (Convention or non-Convention related).  Their fear of persecution is not well-founded.

24. Considering all of their claims cumulatively, the tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Brazil that there is a real risk that they will suffer harm.

25. The Tribunal finds, therefore, that the applicants do not have a well-founded fear of persecution if they return to Brazil now or in the reasonably foreseeable future.

    Conclusion

26. For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

27. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Nicola Findson
    Member