1801345 (Refugee)

This matter concerned an application for review of a delegate's decision to refuse protection visas to the applicants. The applicants, who claimed to be citizens of Brazil, had entered Australia and subsequently applied for protection visas, with the primary applicant asserting claims of persecution based on his political and civil society activism in Brazil. The delegate's refusal was primarily based on the applicants' status as permanent residents of Paraguay and their possession of a temporary visa for another country, which the delegate considered as a failure to take all possible steps to avail themselves of a right to enter and reside in a third country, as per sections 36(3)-(5) of the *Migration Act 1958*.

The legal issues before the Tribunal included whether the applicants had failed to take all possible steps to avail themselves of a right to enter and reside in a country other than Australia, and if so, whether this precluded them from being granted protection visas. This required an assessment of the nature of their permanent residency in Paraguay and their temporary visa for another country, and whether these constituted a reasonable alternative to protection in Australia, particularly in light of the feared persecution. The Tribunal also had to consider the extent to which the applicants' well-founded fear of persecution extended to the Mercosur region, given the porous nature of its borders and the applicants' specific political profile.

The Tribunal found that the delegate erred in applying section 36(3) of the Act. It reasoned that the porous borders within the Mercosur region, combined with the primary applicant's high-profile political activism, meant that his well-founded fear of persecution extended throughout that region, rendering Paraguay and other countries within the region unsafe. The Tribunal concluded that the applicants' claims for protection had been established to the requisite standard. Consequently, the Tribunal remitted the decision to the delegate for reconsideration.