2000248 (Refugee)

The applicant, a citizen of Brazil, sought review of the Tribunal's decision to affirm the refusal of his protection visa application. The applicant had arrived in Australia on a student visa in 2008 and had become unlawful in 2011 following the cancellation of his visa. He claimed to have a well-founded fear of persecution in Brazil due to ongoing human rights violations, including police brutality and torture, and sought Ministerial intervention under s 417 of the Migration Act 1958. He also highlighted his role as the primary carer of his Australian citizen daughter and her half-brother, asserting sole responsibility for their care.

The central legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically under s 36(2)(a) (refugee status) or s 36(2)(aa) (complementary protection). The Tribunal was required to consider the applicant's claims of fear of persecution in Brazil and the risk of significant harm upon removal, as well as the best interests of his Australian citizen children. The Tribunal also had regard to Ministerial Direction No. 84, the Refugee Law Guidelines, and Complementary Protection Guidelines.

The Tribunal reasoned that the applicant did not satisfy the criterion for being a refugee under s 36(2)(a) as he had not demonstrated a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Furthermore, the Tribunal found that the applicant did not meet the complementary protection criterion under s 36(2)(aa), as there were no substantial grounds to believe that he would suffer significant harm as a necessary and foreseeable consequence of removal to Brazil. The Tribunal noted that the applicant's claims regarding human rights abuses in Brazil were general and did not establish a personal risk of significant harm. The Tribunal also considered the applicant's role as a carer for his Australian citizen children, but this did not alter the assessment of his own protection claims.

The Tribunal affirmed the decision not to grant the applicant a protection visa.