1801345 (Refugee)

1801345 (Refugee) [2020] AATA 1739 (22 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1801345
COUNTRY OF REFERENCE:                   Brazil
MEMBER:Dr Colin Huntly
DATE:22 May 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 22 May 2020 at 8:54am
CATCHWORDS
REFUGEE – protection visa – Brazil – political opinion – outspoken and high-profile political and civil society activism – advocating for the rule of law – endured bogus charges and false litigation – credibility assessment – delay in seeking protection – State protection – right to enter and reside in a third country – porous borders within the Mercosur region – permanent resident of Paraguay – temporary right to enter the US – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 104, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
SZLGP v MIC [2008] FCA 1198
SZSHV v MIBP [2014] FCA 253
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 January 2018 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
Applicant migration history
The applicants first entered Australia [in] December 2015 traveling on an FA-600 Tourist visa.
The applicants departed Australia [in] February 2016 and returned to Australia [in] May 2016.
The applicants departed Australia [in] July 2016 and returned to Australia [in] August 2016.
Applicant 1 applied for a protection visa in Australia on 1 November 2016 with Applicant 2 included as a dependant, secondary applicant relying on the claims asserted by Applicant 1.
This application was refused by a delegate of the then Minister for Immigration and Border Protection by written decision dated 9 January 2018. The applicants seek review of this decision by the Tribunal as presently constituted.
Proceedings before the Tribunal
The applicants applied for the visas on 1 November 2016. The delegate refused to grant the visas on the basis provided at s.36(3)-(5) of the Act that the applicants had not taken all possible steps to avail themselves of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia in circumstances where it would be legally reasonable to do so. This finding was based on the fact that the applicants possessed permanent residence of Paraguay.
DECISION SUMMARY
The delegate’s finding that the applicants are excluded from applying for protection in Australia can be appreciated by reference to the following two extracts of the decision with particular reference to Applicant 1:[1]
The applicant claims to be a citizen of Brazil and not a citizen or national of any other country, however, the applicant stated in his 866 Protection visa application that he is a permanent resident of Paraguay. The applicant has since confirmed this in all paperwork submitted to the Department and during both his protection visa interviews.
I note the applicant also has a valid [temporary] visa for [Country 1] that was issued [in] July 2010 and is due to expire [in] July 2020. The applicant stated in his Protection visa application that he has travelled to [Country 1] nine times on this visa totalling approximately four months within [Country 1].
[1]Both extracts are taken from (10) of the decision record.
And:
The ‘right’ referred to in s 36(3) has been interpreted by the Full Federal Court in MIAC v SZRHU (SZRHU) to include a “liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement”.
Section 36(3) of the Act makes it clear that the right to reside can be permanent or temporary. In that context, temporary does not include any qualification on how long the person may enter and reside. In particular, it does not require a consideration of whether the right to enter and reside is ‘co-extensive with the period during which the applicant stood in need for protection’.
The term all possible steps relates to being availed of a right to enter and reside. In other words, it relates to exercising or using the right not to obtaining it. If the right is determined to be in existence and the applicant has taken no steps to use the right then s36(3) applies to that person (subject to consideration, where relevant, of the qualifications in s36(4), s36(5) and s36(5A)).
Having considered the original decision, and the applicant’s submissions on applying for review, the Tribunal made a preliminary determination that it was possible to proceed to a decision without the need for a hearing. The applicants did not object to this preliminary determination.
The Tribunal does not concur with the delegate regarding the applicability of s.36(3) of the Act to the particular circumstances of the applicants. The porous nature of regional borders and the specific political profile of Applicant 1 mean that he has a well-founded fear of persecution which extends throughout the Mercosur region. Having made this finding, it is necessary to assess the claims of Applicant 1 in their terms. The Tribunal’s assessment is that those claims have been established to the requisite standard.
The Tribunal has determined that the matter should be remitted to the Department for reconsideration with the directions that Applicant 1 satisfies s.36(2)(a) of the Act; and that Applicant 2 satisfies s.36(2)(b)(i) of the Act, on the basis of membership of the same family unit as Applicant 1.
Identity
The applicant provided a copy of their Brazilian passports to the Department with their application for protection. I have no reason to doubt the validity of these documents.
I find that Applicant 2 as the spouse of Applicant 1 is a member of the same family unit of Applicant 1.
Based on the information before me, I find that the applicants are citizens of Brazil, which is also the receiving country for the purposes of the refugee and complementary assessments.
DECISION-MAKING FRAMEWORK
President’s Directions
I have had regard to the President’s Directions including ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020;[2] and ‘Conducting Migration and Reviews’, 1 August 2018, with particular regard to the following:
·That “members are to take all reasonable steps to complete cases allocated to them as quickly as possible”;[3]
·That “Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.”[4]
[2]Cf: [5.12] and [5.17].
[3]At [2.1] (consistent with AAT Act 1975 s.33(1)(b)).
[4]At [8.1].
Applicable legal principles
Applicant credibility
The task of fact-finding may involve an assessment of an applicant’s credibility. In this context, I have been guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[5] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.
[5]Eg: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton,[6] Foster J stated that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”[7] Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
[6](1996) 40 ALD 445.
[7]At [482].
I have also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[8] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[9]
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.
[8](1996) 185 CLR 259.
[9]At [25].
The Tribunal is not required to accept uncritically any or all allegations made by an applicant, nor are decision-makers required to have rebutting evidence available before they can find that a particular factual assertion by an applicant has not been made out, or are they obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”[10]
[10][1997] FCA 1198 at [11].
Nevertheless, as Burchett J counselled,[11] it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[11]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].
The Full Court of the Federal Court has noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”[12]
[12]In Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167.
Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies,[13] nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case. That being said, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary to consider the possibility that adverse findings might be wrong.[14]
[13]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at [558–9].
[14]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [241] per Sackville J (with whom North J agreed).
In addition, I am aware that if a 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.[15] This is sometimes referred to as the “what if I am wrong” consideration. I am also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[16]
… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
[15]MIMA v Rajalingam (1999) 93 FCR 220.
[16](1999) 197 CLR 510 at [191].
On the other hand, a decision-maker is entitled to consider whether an applicant genuinely, subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.
If a decision-maker finds on the evidence that the applicant does not genuinely hold a subjective fear, there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied. In this respect, in Iyer[17] the Tribunal there had concluded that certain return visits to Sri Lanka from Australia were voluntary. This (so the Tribunal reasoned) supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status.
[17]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].
The Court on review confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim. This decision was affirmed on appeal.[18]
[18]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.
I recognise that such a principal cannot be relied upon as an iron rule. However, it is potentially a useful illustration of the kind of weighing process that an objective decision-maker must make when making findings relevant to the existence of a well-founded fear of persecution. Credibility findings are, in practice, often central considerations when assessing an applicant’s claims or evidence. This is particularly the case when assessing an applicant’s core or ‘material’ substantive claims or evidence.
In this respect, I note the comments of Flick J,[19] in SZSHV v MIBP [2014] FCA 253 (by reference to the former Refugee Review Tribunal) as follows:
31In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision-making processes from scrutiny. Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed:
[78]It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.
[19]Cited with approval by McKerracher, Griffiths and Rangiah JJ in CQG15 v MIBP [2016] FCAFC 146 at [41].
As highlighted by the Court in CQG15 v MIBP [2016] FCAFC 146:[20]
… Recitation of the expression that credibility is a matter [/question of fact for the Tribunal] par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:
(a)      failure to afford procedural fairness;
(b)      reaching a finding without any logical or probative basis;
(c)      unreasonableness; and/or
(d)      jurisdictional error as discussed by Flick J in SZVAP.
[20]At [38] per McKerracher, Griffiths and Rangiah JJ [parentheses added].
The particular reference by their Honours in the extract above at (b) to the importance of making findings of fact on logical or probative grounds with specific reference to credibility findings is telling. In this respect, I note that, later in the same judgement,[21] the Court referred in a generally approving way to an observation by Gordon J in SZLGP v MIC [2008] FCA 1198 about the United States 9^th Circuit Court of Appeals decision in Stoyanov v INS[22] (Stoyanov):
The Court in Stoyanov went on to state that “minor inconsistencies cannot support an adverse credibility finding” and that “trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible”: …
[21]CQG15 v MIBP [2016] FCAFC 146 at [43].
[22](9^th Cir 1999) 172 F3d 731. Extract citation reference is to Stoyanov at [736].
I note also that a number of judicial caveats have been expressed when considering the manner in which credibility findings may be made in protection visa reviews and the ultimate use to which they may be put, either deliberatively or determinatively as the case may be. Firstly, as the Federal Court observed in CQG15 v MIBP [2016] FCAFC 146 at [59]–[60], one must be mindful of:
… the conclusion reached by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, particularly (at [131]), where Crennan and Bell JJ stated that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion.
In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516,

Wigney J collected the following relevant principles (at [52] and [54]-[56]):
52As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

Consideration of how credibility findings might be affected by legal unreasonableness was also considered by the Federal Court in the more recent case of BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184. The Court made the following observations of utility:[23]
32First, the relevant question for the AAT under ss.36(2)(a) and (aa), 65 and 415 of the Act is whether it is “satisfied” that the criteria for a protection visa are met and as a consequence the decision of the AAT is subjective in nature: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-277 (Brennan CJ, Toohey, McHugh and Gummow JJ); and W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 (W148/00A) at [65] (Tamberlin and R D Nicholson JJ).
33Secondly, the fact that a decision-maker has expressed her or his reasons sequentially does not mean that the decision-maker has decided each factual issue in isolation from the others. To the contrary, “[o]rdinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole”: S20/2002 at [14] (Gleeson CJ); see also at [49] (McHugh and Gummow JJ); and Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 (Chen) at [33]-[35] (the Court). Indeed, there is no necessary error in the Tribunal not considering corroborative material until after it has reached its conclusions of credibility where the Tribunal has (lawfully) found that “the well has been poisoned beyond redemption”: S20/2002 at [49]; and Chen at [35].
34Thirdly, notwithstanding the subjective nature of the assessment required by the AAT and the factual nature of an assessment of credibility, the AAT’s decision must still be made within the bounds of legal reasonableness.
[23]Per Rangiah, Perry and Bromwich JJ.
In addition to the foregoing judicial guidance, I have also considered the Migration and Refugee Division “Guidelines on the assessment of credibility”, issued in July 2015, which provides:
It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.[24]
[24]At [8].
And:
In relation to protection visa applications made on or after 14 April 2015 if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made and the tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made the tribunal must draw an inference unfavourable to the credibility of the claim or evidence. This refers to the requirements at section 423A of the Act.[25]
[25]At [13].
The Guidelines also advise that:
Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case. The tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the tribunal.
A Member should maintain and be seen to have an open mind when conducting a hearing. There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend. An applicant may be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.
However, the tribunal should take care to ensure that vigorous testing of the evidence and frank exposure of its weaknesses does not result in the applicant being overborne or intimidated.[26]
[26]At [17]–[19].
With respect to contradictions, inconsistencies and omissions, the Guidelines state:
Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal.
The tribunal will consider all the evidence before it assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.[27]
New claims and evidence
[27]At [27]–[28].
Applicants are required to present all claims and evidence to the primary decision-maker unless they have a reasonable explanation for not doing so.
This principle is enshrined at s.5AAA of the Act, which clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. On this view, a Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition, referred to above, that it is for an applicant to make their own case.[28]
[28]Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152; at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
As a general principle, therefore, applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. Two obligations here are particularly relevant:
i.The ongoing requirement under s.104 of the Act for an applicant to ensure that their relevant details are correct and then to change any incorrect information at the first reasonable opportunity; and
ii.Section 423A of the Act requires a Tribunal to draw an adverse inference about the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made.
In such cases, if a Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence was not presented before the primary decision, a Tribunal is required to draw an inference unfavourable to the credibility of the claim or evidence.
In making such an assessment, I am mindful of the specific considerations mentioned in the President’s Direction relating to opportunities to raise a claim or evidence, changes in the available country information or other relevant information, relevant changes in the personal circumstances of the applicant or diagnosed medical conditions that may have impaired an applicant’s memory or self-expression.[29]
[29]At [9].
Criteria for a 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 (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, they are 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) of the Act provides that an applicant for a protection visa must satisfy the Minister that they are a non-citizen in Australia in respect of whom 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). These are findings of fact.
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), they may nevertheless meet the criteria for the grant of the visa if the Minister is satisfied that they are a non-citizen in Australia in respect of whom 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
In accordance with Ministerial 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.
Accordingly, in addition to the country information referred to in the delegate’s decision record, which was provided to the Tribunal by the applicant, the Tribunal has not had the benefit of a DFAT country information report for Brazil, as none has been produced to date. However, I note that the most recent corruption assessment published by Transparency International regarding Brazil states as follows:[30]
Corruption remains one of the biggest impediments to economic development in Brazil. It threatens recent strides made towards equality and social justice, and it has exposed the fragility of Brazil’s 30-year-old democracy. Over the last few years, Operation Carwash (Operação Lava-Jato in Portuguese) has uncovered one of the largest corruption schemes in history, involving billions of dollars, politicians and businesses from several different countries. While it is the direct result of legal and institutional evolution in anti-corruption policies, it has also demonstrated how much work remains to be done. Wide-ranging reforms on Brazil’s political system are necessary not only to fight and, especially, prevent corruption, but also to safeguard the country’s democracy.
[30]Guilherme France, Brazil: Overview of corruption and anti-corruption ([email protected]; Reviewer: Maíra Martini, Transparency International, 29 January 2019) (accessed 21 May 2020).
According to the most recent US State Department Human Rights assessment for Brazil:[31]
Significant human rights issues included: reports of unlawful or arbitrary killings by state police; harsh and sometimes life-threatening prison conditions; torture; violence against journalists; widespread acts of corruption by officials; crimes involving violence or threats of violence targeting members of racial minorities, human rights and environmental activists, indigenous peoples and other traditional populations, and lesbian, gay, bisexual, transgender, or intersex (LGBTI) persons; and use of forced or compulsory labor.
[31]US State Department, ‘2019 Country Reports on Human Rights Practices: Brazil’ ( accessed 21 May 2020).
And:
The NGO Global Witness reported 20 social, human rights, and environmental activists were killed in 2018, leading it to classify the country as “extremely lethal” for activists. In March Dilma Ferreira da Silva, one of tens of thousands of persons displaced by the construction of the Tucurui dam and an activist and leader in the Movement for Those Affected by Dams, was found dead in the settlement where she lived with her husband Claudionor Costa da Silva and family friend Hilton Lopes. The victims were found with their throats cut and hands tied, and they showed signs of torture. The Para State Civil Police arrested landowner Fernando Ferreira Rosa Filho as the alleged mastermind behind the assassination.
I have also had regard to sources of country information referred to in submissions provided by the applicants.
CONSIDERATION OF CLAIMS AND EVIDENCE
In summary, the harm feared by the applicants is identified at length in the delegate’s decision record at (3)-(6). The most concise articulations of their claims are as follows:
2.1) We believe all of this harassment originated from the fact that my wife and I advocated against [Organisation 1] and also due to the imprisonment of [Mr A] that threatened us with death.in addition, I have always fought for the rights of Brazilian citizens against corruption and illegal [Organisation 1] activities. [Details deleted] to the detriment of Brazilians, when [Organisation 1] were [details deleted] …
… we greatly fear for our lives if we ever return to Brazil or to Paraguay again. Hence, for the reasons we are about to reveal, both Brazil and Paraguay became countries whereby it is not possible for us to be living in.
The reasons are:
3.1.1) We can be murdered at any time by order or influence of [Mr A], either in Brazil or in Paraguay.
3.1.2) There are judicial orders imposed on us all over Brazil, which leaves us in a situation where we are unable to provide for ourselves, even for our most basic needs such as food, clothing and health.
3.2) We will not have a fair trial since we are currently suing judges that are notorious for their feelings of loyalty towards their own group, who often protect themselves in a corrupt way and that, at any time, can order an arbitrary arrest of me and my wife to conduct investigations.
As an example, not long ago the country's highest court, Supreme Federal Court (STF), decided that final arrest can be made without a final judgement, which constitutes a serious violation of the Brazilian Constitution and something that has been the object of serious repudiation by the Brazilian Bar Association. If the ex-president of the Republic himself, Luiz Inacio Lula da Silva, who has power and resources, is impotent to prevent illegal persecution by judges, imagine what can happen to [Occupation 1] like us, idealists and advocates, without political links or money to stop the persecution.
Of relevance to the foregoing, I note that the delegate made the following findings of fact relating to Applicant 1’s core claims for protection:[32]
Based on this evidence and the applicant’s testimony, I am satisfied the applicant is a [Occupation 1] who was a [member] of [an organisation] [who acted] on behalf of Brazilian citizens who were disadvantaged by [Organisation 1] and government officials in Brazil.
[32]At (7).
And:[33]
Based on the evidence presented and the applicant’s convincing testimony, I am satisfied he has endured bogus charges, false litigation and the appearance of illegal findings in his court proceedings within the Brazilian judicial system.
I note that even though this treatment has/is occurring, the applicant has managed to overturn these irregularities and seek justice on every occasion.
I also note, the applicant’s latest appeal is ongoing, and while this is occurring, his assets, including his salary and savings are unavailable to him.
[33]At (8).
The delegate further found that:[34]
… I am satisfied the applicant was involved in [action] which resulted in the conviction of the corrupt [Mr A].
The applicant states he suffers from PTSD which started in 2007 after the investigation concerning [Mr A]. It was at this time he started seeing a psychiatrist in Brazil and taking medication. The applicant explained he takes 2mg of [Medication 1] three times per day and is seeing a psychiatrist, [Dr B], of [health service provider] in [Suburb 1], [Australia]. I have confirmed [Dr B] exists through open sources. [Medication 1] belongs to the class of medications called [medication] which are used as a sedative or to decrease seizures or anxiety.
Based on the information provided and the applicant’s testimony, I am satisfied the applicant feared for his life because of his occupation while living in Brazil.
[34]Id.
The foregoing findings are supported by independent enquiries made in the course of this review.[35]
[35]Online sources consulted include: [Source deleted].
I note that the delegate appears to have formed an adverse credibility inference about the applicant’s claim for protection on two principal grounds, namely, the apparent delay in seeking protection, and the applicant being perceived to have failed to apply for protection in a third country prior to the current application. This is evident from the following extract from the decision record:[36]
I believe that if the applicant truly felt his life was at risk from a revenge fuelled

[official] since 2007 he would have applied for protection earlier than the 1 November 2016, especially considering the amount of travel the applicant has under taken. I am therefore not satisfied the applicant fears for his life in regards to [Mr A].
[36]At (9).
The inherent contradictions in the foregoing highlighted passages of the delegate’s decision record are noted. I am satisfied that the applicant’s claims to fear harm from this particular agent of harm are consistent with credible country information.[37]
[37]Sources consulted include: >
I further note that the delegate does not appear to have considered the cumulative effect of the various traumatic personal and professional experiences faced by the applicant over time, when drawing an adverse inference about the subjective
well-foundedness of the applicant’s fear of harm in Brazil.
However, it is the absence of reflection by the delegate on the objective well-foundedness of the applicant’s claims of a well-founded fear of persecution in Brazil now or in the reasonably foreseeable future that most clearly undermines the ultimate decision under review.
Having accepted the credibility of the country information which makes it clear that outspoken and high-profile political and civil society activists in Brazil face a real chance of serious harm in that country now, and for the foreseeable future; and having accepted that the applicant both has such a profile and has experienced actual harm for that essential and significant reason; the delegate appears to ground their ultimate finding on the actions of the persecuted in response to the persecution rather than applying the statutory test How a person choses to respond to a real chance of serious harm does not determine whether that harm realistically exists.
CONSIDERATION OF CLAIMS AND EVIDENCE

It is clear in the present case that Applicant 1 has experienced (and will continue to experience) persecution in the relevant sense for the essential and significant reason of his outspoken and high-profile political and civil society activism, advocating for the rule of law in Brazil.
It is equally clear that Applicant 1 is unable or unwilling to return to that country because he cannot obtain effective State protection. This is because some of the agents of harm whom Applicant 1 fears are agents of the Brazilian state or otherwise have networks of influence within the Brazilian state such that effective protection will not be accessible to the applicant in any part of that country. These apprehensions on the part of the applicant appear to be reasonable when considered in the context of available credible country information, including that relied upon by the delegate in the first instance and that referred to above.
I accept the delegate’s findings that Applicant 1 fears harm from agents of harm who are closely associated with, and retain networks of influence within, all levels of the Brazilian state, including political decision-makers and prosecuting authorities. I further find that these agents of harm are motivated with mala fide intent towards Applicant 1 and that this animus is for the essential and significant reason of his political opinion, in particular his outspoken and high-profile political and civil society activism, advocating for the rule of law in Brazil.
I accept that Applicant 1’s political activism is sincere, longstanding and will continue for the reasonably foreseeable future.
I also note that the borders within the “Mercosur” region[38] are equally porous to the agents of harm who are motivated with mala fide intent towards Applicant 1. Accordingly, the ‘right to enter and reside’ in countries within Mercosur (Argentina, Brazil, Paraguay, Uruguay, Venezuela) is not a straightforward matter where agents of harm are motivated, well resourced and have networks of influence within the apparatus of state of a member country. I further note that the applicants’ current right to enter [Country 1] will expire in less than 10 weeks at the date of this decision.
[38] (accessed 21 May 2020).
In light of these considerations, which were not adequately explored in the delegate’s record of decision in the first instance, the Tribunal is satisfied that the applicant is not excluded from protection in Australia by virtue of the relevant consideration under s.36(3) of the Act.
Summary of claims and decision
The issue in this case is whether the applicants have a well-founded fear of persecution in Brazil now or in the reasonably foreseeable future for the essential and significant reason of Applicant 1’s political opinion: specifically, the applicant’s outspoken and high-profile political and civil society activism, advocating for the rule of law in Brazil.
For the reasons given above, the Tribunal is satisfied that Applicant 1 is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a) (the refugee criterion). Applicant 2 is a member of the same family unit as Applicant 1 and will be entitled to a protection visa, provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i)that Applicant 1 satisfies s.36(2)(a) of the Migration Act; and
(ii)that Applicant 2 satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Dr Colin Huntly
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)    that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)    that is not inconsistent with Article 7 of the Covenant; or
(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)    for the purpose of obtaining from the person or from a third person information or a confession; or
(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)    for the purpose of intimidating or coercing the person or a third person; or
(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H   Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:    For the meaning of well-founded fear of persecution, see section 5J.
…
5J    Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K   Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:    Section 5G may be relevant for determining family relationships for the purposes of this section.
5L   Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36    Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)    the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)    the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 1739

22 May 2020

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Immigration

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