1501656 (Refugee)

This matter concerns an application for review of a delegate's decision to refuse to grant protection visas to two applicants, who claim to be citizens of Brazil. The applicants arrived in Australia in August 2012 and applied for protection visas in March 2013, alleging they feared harm upon return to Brazil due to death threats and a drive-by shooting at their home, which they linked to their discovery of a corruption scheme. The delegate refused the visas, finding that the applicants had access to effective state protection in third countries, specifically Mercosur and EU member states, by operation of international agreements. The delegate concluded that Australia had no protection obligations under section 36(3) of the Act because the applicants had not taken all possible steps to avail themselves of these rights to enter and reside in those countries.

The primary legal issue before the Tribunal was whether the delegate erred in finding that the applicants had access to effective protection in third countries and had failed to take all reasonable steps to avail themselves of such protection. This involved an assessment of the rights conferred by the Mercosur/Mercosul agreements and the EU-Brazil short-stay visa waiver agreement, and whether these provided a genuine and effective avenue for protection for the applicants. The Tribunal was required to determine if the delegate's interpretation and application of section 36(3) of the Act, in light of these international agreements, was correct.

The Tribunal considered the evidence provided by the applicants regarding the threats and the drive-by shooting, which they believed were linked to their refusal to sign a document related to corruption within their former organisation. The Tribunal also examined the delegate's findings concerning the applicants' ability to enter and reside in Mercosur and EU member states. The delegate's reasoning was that the applicants possessed a present right to enter these countries, reside for a specified period, and potentially gain temporary and then permanent residence, thereby negating Australia's protection obligations. The Tribunal's task was to assess whether these rights constituted "effective protection" and whether the applicants' failure to pursue these avenues was a failure to take "all possible steps" as contemplated by the Act.