1514349 (Refugee) - [2018] AATA 3957

1514349 (Refugee) [2018] AATA 3957 (28 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1514349
COUNTRY OF REFERENCE:                  Venezuela
MEMBER:Nicole Burns
DATE:28 August 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 28 August 2018 at 11:17am
CATCHWORDS
REFUGEE – Protection visa –Venezuela – Political opinion – Actively involved in anti–government activities in Venezuela and Australia – Father worked for opposition leadership – Particular social group – Homosexual – Significant mental health issues – Third country protection – Holder of valid temporary visa for third country – Whether visa provides right to reside permanently – Decision under review remitted for reconsideration
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 438, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMAC v SZRHU (2013) 215 FCR 35.
SZMWQ v MIAC (2010) 187 FCR 109
SZQRM v MIAC [2013] FCCA 772
SZQRM v MIBP [2013] FCA 1297
SZRTC v MIBP (2014) 224 FCR 570
SZRTC v MIBP (2014) 224 FCR 570
WAGH v MIMIA (2003) 131 FCR 269
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 Immigration to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Venezuela, applied for the visa on [date] March 2014 and the delegate refused to grant the visa on [date] October 2015 on the basis that they were not satisfied the applicant had a well-founded fear of persecution or faced a real risk of significant harm in Venezuela under s.36(2)(a) and s.36(2)(aa) of the Act. As such, although the delegate indicated in his decision record the applicant may have third country protection in [Country 1] because he holds a valid [Country 1] visa (discussed further below), the delegate did not consider it necessary to make findings in this respect.
The applicant appeared before the Tribunal on 15 March 2018 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
The issue in this case is whether Australia has protection obligations with respect to the applicant. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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, 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.
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).
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.
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’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background and nationality
The applicant is a [age]-year-old male from Caracas, Venezuela who first came to Australia as [an occupation] from [date] January 2012 to [date] August 2013 when he moved to [Country 1]. In [Country 1] he lived with an aunt and his grandmother before returning to Australia as the holder of a [temporary] visa on [date] January 2014. He applied for a protection visa shortly thereafter.
The applicant provided to the Department of Immigration (the Department) copies of his Venezuelan passport and a translated copy of his birth certificate. On this basis, and given the delegate had no concerns about the applicant’s claimed nationality, the Tribunal accepts the applicant is a national of Venezuela and has assessed his protection claims accordingly.
Claims and evidence
In summary the applicant claims he cannot return to Venezuela as a gay man, who used to study [a particular discipline] and who has actively protested against the Venezuelan government in Venezuela and Australia. He claims to have been assaulted in the past because of his homosexuality. He is also at risk, it is submitted, because his father used to operate a [business] in Venezuela (and in that role worked for an opposition leader, Henrique Capriles) and was monitored and harassed by the authorities as a result. The applicant also claims to fear criminals, given the prevalence of violent crime in Venezuela. He claims to have been attacked by criminal elements a number of times in Venezuela in the past and after a kidnapping incident in 2010. He was diagnosed with [Mental Health Condition 1], [Mental Health Condition 2] and [Mental Health Condition 3] and spent time as an inpatient at a mental health facility in Venezuela.
The applicant set out his claims initially in his protection visa application and a supplementary statement[1] provided to the Department. In his supplementary statement the applicant stated, among other things, that his father was [an Occupation 1] who was openly opposed to socialism in Venezuela and was involved in various projects considered anti-government, for example [details of project deleted] for the opposition movement. As a consequence the applicant’s father and his family noticed police following them, targeted because of their political ideas. At the review stage the applicant reiterated and expanded upon his claims in detail in a statutory declaration[2] provided to the Tribunal. He also provided copies of a number of reports and articles about human rights concerns and crime in Venezuela.
[1] Received by the Department on 12 March 2014.
[2] Dated 5 March 2018.
The representative provided to the Tribunal a written submission[3] addressing the applicant’s background and claims. In it she references country information to support her contention that the applicant’s protection claims are well founded. She also provided supporting documents and a report from a psychologist dated 9 March 2018. In an email to the Tribunal post-hearing the representative advised that the applicant’s father has recently volunteered for [a specific project] in [Country 2] – which increases the applicant’s risk profile.
[3] Dated 8 March 2018.
The applicant expanded upon his claims at hearing, summarised where relevant as follows. He said he was primarily raised by his paternal and maternal grandparents who lived only two houses away from one another in the capital city, Caracas. After finishing high school he studied a [degree] at [University 1], located around 50 kilometres away from his grandparents’ house. He also worked at his father’s [business] in Caracas. His father sold his [business] and moved to [Country 2] in around 2013 or 2014 because his office was vandalised and his business under attack by Chavez’s administration at the time, resulting in a reduction in work. His father used to also regularly be harassed by police to give them money in Venezuela. Currently his father lives in [Country 2] with his third wife (and the applicant’s step mother) and their [age]-year-old daughter. He works in [a certain industry] and his wife [works in the same industry]. The applicant’s mother currently lives with her parents in Caracas and is currently unemployed because the company she worked for has been closed by the government.
The applicant said after he left Venezuela his father started working for an opposition leader called Leopold Lopez, who was a member of the Unity Table, in 2014. He also worked for Henrique Capriles from the same political party, including assisting the party’s election campaign. He provided written examples at the Tribunal hearing, in Spanish. The applicant said his father’s office was vandalised after this work.
The applicant said he only completed [part] of his [number] year [university] course. He stopped attending university after a series of attacks (and one attempted attack). He developed [Mental Health Condition 1] as a result and was also diagnosed with [Mental Health Condition 2] around this time. Prior to coming to Australia he spent a period of time as an inpatient in a psychiatric care facility in Caracas, paid for by his father. The applicant described the main attacks as follows:
a.Sometime in 2009 the applicant and a friend were followed by three white SUVs, with tinted windows and blinking lights whilst driving on a highway. One of the SUVs approached from behind their car; one SUV went on the other side; and the third SUV moved ahead of their vehicle in an attempt to steer the applicant’s car to a merge lane. Frightened, the applicant sped off and drove an extra 100 kilometres before returning home. He does not know who the inhabitants of the cars were or why they were pursuing him, but thinks it may have been the police because they have money for SUVs, which were identical. The applicant said his panic attacks began after this incident.
1. Sometime in 2010, after leaving a gay night club around 3am with a friend, the applicant was forced to stop the car he was driving due to another car stopped in a tunnel ahead. The applicant saw a man wearing a balaclava get out of the car, saw a red light, and then felt glass shatter on his arm from a bullet through his windscreen (his friend in the passenger seat next to him pulled him down moments before the shot). The applicant reversed his car and took another exit, managing to escape. He then drove to a police station but no one was there. He called his father who told him not to call the police, in case they were somehow involved. Later the applicant took his car to be repaired. When he returned to pick up his car at the body shop the police came – informed by the repairer because of the bullet hole and blood stains - and demanded money from the applicant to get rid of his file. His father paid the police money (he does not know how much).
c.Sometime in 2010 the applicant was forced by three men at gunpoint at a petrol station into his own car, and beaten whilst being driven around. The kidnappers telephoned his father and asked for money, which his father was able to produce some hours later. After they received the money his kidnappers left him at the side of a road around one to two hours’ drive from Caracas where his aunt, who lived close by, picked him up.
After the third attack the applicant said he did not return to university and his family started making arrangements for him to study in Australia. He said in Venezuela there are degrees of criminality, distinguishing between ‘normal’ criminals and the national guard and police: the latter plan attacks, often meticulously. He believes given his attacks were meticulously planned, and were not random, the police or national guard were involved. He said hat ‘express kidnappings’ are common in Venezuela and involve the kidnappers doing their homework about who to target, which are usually the middleclass. The applicant noted that 80 percent of the population in Venezuela live in extreme poverty and are not at risk of express kidnappings for money; however he was in the other 20 percent and this is why he thinks he was subject to so many attacks. Even returning after living abroad for a number of years would increase his risk profile.
With respect to the second attack, the Tribunal asked the applicant if he thought he was targeted because he had left a gay night club. He said he is not sure if they shot at him because he is gay, but noted that almost every time he left a gay club in his country police or the national guard or others would be waiting outside the club and ‘ask’ him (and others) for money and humiliate them. It used to happen to him about once a month and he would give them money.
When asked if he experienced any other problems as a gay man in Venezuela, the applicant said he was bullied in high school for being gay and having good grades. Although people at high school did not know he was gay, he was effeminate and as a result used to get punched and kicked by classmates and would try and hide his sexuality even more. At university he did not come out but had a group of friends who liked same sex couples and it was his first encounter with the culture. He went to his first pride march in Caracas in 2009 where he first came out as a gay man. He used to regularly attend gay clubs during this time. He had sex with men but no relationships with men in Venezuela, largely out of fear of his family’s reaction. When he was around [age] his father found a text message on his phone from a man he had had sex with, discovering he was gay. His father became angry, threw the applicant’s phone at him and has never brought up the matter again. The applicant said he told his mother around the same time and she blamed herself and has never accepted his homosexuality. He also told his grandparents around this time and they were not supportive and wanted him to be straight. The applicant also gave evidence that he was molested by an older (male) cousin when he was young. The applicant said he was beaten up in 2007 when at high school by a friend of a friend who attacked him after messaging him to meet him at his house. He did not seek medical attention or tell anyone of the attack, because he was too ashamed.
The applicant said he does not think he would able to be openly gay on return to Venezuela noting the population is very Catholic and close minded. People also change their attitude toward him when they know. He would feel like he had to hide himself again.
In Australia the applicant has been open about his sexuality and was in a long term relationship with an Australian man, [a named person].
The applicant told the Tribunal he was politically active in Venezuela, in particular after [certain events, when] the student community (as well as his father) felt threatened. He put flags on his car in protest and attended many marches and demonstrations, trying to spread the messages about freedom of speech and human rights. When he was younger he often went to protests with his mother and grandfather, which under Chavez became risky. He recalls protesting from when Chavez first came to power – around 1988 (when he was [age years old]). A neighbour was killed in a protest in 2009. After the government started sponsoring violence at the protests, he stopped attending.
The applicant also told the Tribunal that when he was [age] he joined the Primero Justicia party, which later became the Table of Democratic Unity, a coalition of opposition parties. He used to attend party talks. Sometimes opposition party members would turn up to their meetings and there would be clashes: he would run away and return home.
In Australia the applicant said he has attended protests against the lack of freedom of speech and human rights abuses in Venezuela, which have been organised through the Venezuelan Association in [Australian City 1]. He attended protests in [Australian City 2] and [Australian City 1], the last time in 2013 after he returned from [Country 1]. As well, in 2017 he reported about the Venezuelan elections for his aunt’s website in [Country 3] and took a video of people voting at [a] church in [Australian City 1], which she posted on her website.
Findings on the applicant’s past experiences and profile in Venezuela
The Tribunal accepts the applicant’s claims about his family composition, background, studies and work experience in Venezuela. It accepts his father owned a [business] which he was forced to close in 2013 and has moved to [Country 2]. It accepts his father’s office was vandalised and he received threats and was of adverse interest to the authorities, in particular after his [business] supported opposition leaders and their campaigns. His oral evidence on these matters was detailed, spontaneous and consistent with his written claims to the Department and Tribunal.
The Tribunal also accepts the applicant is a gay man. His oral evidence about the development of his sexuality and experiences as a gay man in Venezuela and since he left his country was spontaneous and consistent with his detailed written claims provided to the Tribunal. Although he provided limited information about such experiences to the Department, he did clearly state he was gay in his protection visa application and he did not attend the interview, in which he could have elaborated upon these claims at that stage.
The Tribunal also accepts the applicant’s evidence about living in Venezuela as a gay man: that is, that although he tried to keep his sexuality hidden at high school, he was bullied and harassed because of his effeminate manner; that his father, mother and grandparents disapproved of his homosexuality when they found out when he was [age]; that he never had a boyfriend because of fear of their reaction; that he was physically assaulted by a man – a friend of a friend – when at high school who had lured him to his house on the pretext of having sex; and he was often subject to extortion by police, national guard and other members of the public when leaving gay clubs in Caracas. The applicant claims he was shot at in 2010 not long after leaving a gay club, and whilst he is not sure if he was targeted because he was gay, he was often a victim of extortion and verbally humiliated after leaving gay clubs in the past by police, members of the national guard or others. The Tribunal notes the applicant failed to mention that this attack occurred after he left a gay club in his supplementary statement provided to the Department in which he detailed these attacks. At hearing the applicant explained that he wrote that statement himself with little help from a legal representative, and was not sure how relevant it was to his case. Given the Tribunal found the applicant to be a credible witness it accepts his explanation in this respects and accepts that he was attacked not long after leaving a gay night club. However, even if the Tribunal accepts he was more vulnerable to being attacked because he had left a gay nightclub, it is largely speculation that he was attacked because he was gay and the Tribunal is not satisfied that was the case.

With respect to the kidnapping, the applicant stated in his supplementary statement provided to the Department (and statutory declaration provided to the Tribunal) that the three men who kidnapped him called him many obscene names and homosexual slurs, including ‘faggot’, which is clearly homophobic and indicates they may have had prior knowledge of his homosexuality. On the other hand, it may have been used indiscriminately to humiliate victims and the Tribunal is not satisfied on the evidence before it that the applicant was targeted in this attack for the essential and significant reasons of his homosexuality.
In considering the applicant’s claims to have been politically active in the past in Venezuela, including by attending anti-government protests and being a member of an opposition party, the Tribunal notes the applicant failed to mention this at all in his supplementary statement provided to the Department. In his protection visa application he does mention that he was politically active as was his family, and reported being harassed and mistreated by government supporters, police and national guards at peaceful ‘manifestation agaist [sic] the violation of human rights’. His claims at that stage lack detail and are broad, however, the representative has submitted these concerns should not be viewed adversely given he did not attend the Departmental interview. At hearing the applicant argued that up until recently he had not been represented, did not attend the interview with the delegate, and did not have the opportunity to provide all of his claims. Although of some concern, the Tribunal is willing to accept his explanations in this regard. It found his oral evidence of his involvement in political activities and protests in Venezuela in the past were credible: he did not try to embellish the level of his involvement, nor amplify his profile. The Tribunal therefore accepts he was a member of an opposition party in the past in Venezuela, that he attended party meetings at times which sometimes resulted in clashes with opposition supporters, and that he attended numerous protest marches, up until around 2009.
Well-founded fear of persecution in the foreseeable future
Given these findings about the applicant’s past experiences and profile in Venezuela, the Tribunal has gone on to consider if his fears of persecution on return to his country are well founded.
It is submitted that the applicant is owed protection in Australia as a gay man who holds an anti-government political opinion; has been active protesting against the Venezuelan government in Venezuela and in Australia; previously worked in his father’s independent [business] which further raises his profile; and has significant mental health issues which would deteriorate rapidly on return and he would be unable to access necessary treatment or medication.
For the reasons that follow the Tribunal finds the applicant faces a well-founded fear of persecution on return to Venezuela for reasons of his imputed anti-government political opinion. Given these findings it has been unnecessary for the Tribunal to consider the other grounds advanced. Nonetheless the Tribunal notes that whilst the applicant’s homosexuality may add to his risk profile in certain circumstances, having regard to country information which does not necessarily indicate persecution against homosexuals in Venezuela, despite discrimination in certain respects, the Tribunal does not consider he faces a real chance of serious harm on return to Venezuela for the essential and significant reason of belonging to a particular social group of gay men. Furthermore, whilst the Tribunal accepts the applicant’s claims to have been kidnapped and shot at in the past, it does not accept he was targeted by criminal elements for an essential and significant Convention reason.
The Tribunal accepts the applicant was politically active in the past in Venezuela by attending protest marches against [social issues] when he studied [in] Venezuela, among other things. Although he was not harmed in these protests or of any particular adverse interest to the authorities as a consequence, he gave evidence that he witnessed violence by security forces dispersing the protests and a neighbour was killed in a protest in 2009, which made him stop attending. The Tribunal also accepts he became a member of an opposition political party when he was [age]; that he attended talks; and sometimes there were clashes between opposing groups.
Furthermore, the Tribunal accepts the applicant has been politically active in Australia, in attending protests against the Venezuelan government. The Tribunal has considered whether the applicant’s conduct in Australia in attending protests against the Venezuelan government must be disregarded under section 91R(3). However, the Tribunal found his oral evidence at hearing about the motivation for attending the protests credible and accepts that such conduct is an extension of his conduct and beliefs in Venezuela as evidenced by his political activism in the past (and his family’s activism). Accordingly the Tribunal is satisfied that his conduct in Australia was not undertaken for the sole purpose of strengthening his refugee claims.
Given these considerations the Tribunal accepts it is likely that the applicant would become politically active on return to Venezuela, as he has in the past there and in Australia, and coming from a family of political activists, including his grandfather who was imprisoned in the past for his political beliefs. The Tribunal also accepts the applicant’s claims that his father supported opposition leaders more recently and was threatened and had his business targeted as a result, causing him to close his business and move to [Country 2].
Taking into account these findings and considerations, the Tribunal has had regard to the independent country information about the treatment of those who are perceived to hold anti-government political opinions, including risks of participating in anti-government protests to determine if the applicant faces a well-founded fear of persecution on the basis of his imputed anti-government political opinion on return to Venezuela in the reasonably foreseeable future.
Country information from a variety of sources indicates that the Venezuelan government responded with violence to protests which took place across the country several times per week for four months in 2017, leaving over 125 people dead and thousands more injured and imprisoned. The protests began in April that year in protest against the government-controlled Supreme Court’s attempt to usurp the powers of the country’s legislative branch. The demonstrations quickly spread throughout the country and continued for months, fuelled by widespread discontent with the authoritarian practices of President Nicolás Maduro and the country’s humanitarian crisis under his watch. According to the United States Department of State in their 2017 Human Rights Report for Venezuela:
Government and NGO sources estimated at least 125 persons were killed in anti-regime protests from April 1 to July 31. The Public Ministry reported 65 percent were victims of government repression. The NGO Foro Penal put the number at 75 percent, with “colectivos” responsible for half the deaths and the remainder divided between the Venezuelan National Police (PNB) and National Guard (GNB) forces. The Venezuelan Program for Human Rights Action and Education (PROVEA) estimated that 83 percent of regime victims died from gunshot wounds. On numerous occasions, security forces also used nonlethal ammunition at close range, severely injuring and in some cases killing protesters.[4]
[4] United States Department of State, Country Reports on Human Rights Practices for 2017, Venezuela, Executive Summary,
According to research undertaken by Human Rights Watch (HRW) and the Penal Forum, the government’s response to the 2017 demonstrations involved widespread violence and brutality against anti-government protesters and detainees, and the scope and severity of the ‘repression’ reached ‘levels unseen’ in Venezuela in recent history.[5] Their report stated that in 2017 the government and pro-government groups (such as colectivos) attacked protesters ‘using extreme and at times lethal force, causing dozens of deaths and hundreds of injuries’.[6] Additionally, there were reports of detainees being subject to severe beatings and torture by security forces and armed pro-government groups and they were not isolated cases. The report found relevantly that:
While Human Rights Watch and the Penal Forum have, to date, been unable to determine the full scope of human rights violations committed during the crackdown, our research shows that the abuses were not isolated cases or the result of excesses by rogue security force members. On the contrary, the fact that widespread abuses by members of security forces were carried out repeatedly, by multiple security forces, in multiple locations across 13 states and the capital—including in controlled environments such as military installations and other state institutions—over the six-month period covered by this report, supports the conclusion that the abuses have been part of a systematic practice by the Venezuelan security forces.[7]
[5] Human Rights Watch and Foro Penal, Crackdown on Dissent: Brutality, Torture, and Political Persecution in Venezuela, November 2017,
[6] Ibid.
[7] Ibid.
These findings by HRW and the Penal Forum were broadly consistent with those of the Office of the High Commissioner for Human Rights (OHCHR), which in August 2017 reported ‘the existence of a policy to repress political dissent and instil fear in the population to curb demonstrations’ in Venezuela. In its report, the OHCHR stated that the findings of their report:
...point to an increasingly critical human rights situation since the protests began, with mounting levels of repression of political dissent by national security forces, and increasing stigmatization and persecution of people perceived as opposing the Government of President Maduro. OHCHR documented extensive violations of human rights by national authorities in the context of country-wide demonstrations aimed at curbing any type of anti-government protests. OHCHR found that security forces systematically used excessive force and arbitrarily detained protesters. Patterns of ill-treatment, in some cases amounting to torture, and serious violations of due process rights of persons detained in connection with the protests by Venezuelan authorities were also documented.
Credible and consistent accounts of victims and witnesses indicate that security forces systematically used excessive force to deter demonstrations, crush dissent and instil fear. The Bolivarian National Police (PNB) and the Bolivarian National Guard (GNB), which is part of the armed forces, used tear gas and other less lethal weapons, such as water cannons and plastic pellets, during demonstrations without prior warning, in a non-progressive manner, and in violation of the international legal principles of necessity and proportionality. Less lethal weapons were also used systematically in a manner intended to cause unnecessary harm, for example security forces shot tear gas grenades directly at demonstrators at short range and manipulated ammunition to make them more harmful. OHCHR also documented the use of lethal force against protestors by security forces. Authorities rarely condemned incidents of excessive use of force, in most cases denied security forces were responsible for such incidents, and repeatedly labelled demonstrators as “terrorists.”
...
Security forces regularly used excessive force at the moment of arrest and in a majority of detention cases documented by OHCHR. Detainees were often subjected to cruel, inhuman or degrading treatment or punishment and, in several cases documented, the ill-treatment amounted to torture. Treatment included the use of electric shocks, severe beatings, stress positions, suffocation, and threats of sexual violence and death, and intended to punish, humiliate and terrorize the detainees, as well as to extract confessions and information about alleged anti-government activities.
...
OHCHR documented a pattern of violent and illegal house raids throughout the country. The raids usually involved intentional and unnecessary destruction of private property. The violent way the raids were conducted suggests that security forces intended to instil fear within communities and deter them from further protests.
...
OHCHR also received numerous accounts about the activities of pro-Government armed groups (armed colectivos) in the context of protests. According to these accounts, armed colectivos routinely broke into protests riding motorcycles and carrying firearms. They harassed, attacked and shot at demonstrators, media workers and by-standers. They also arrested demonstrators and participated in violent house raids. Witnesses and sources reported how these groups had been operating with the acquiescence of, and sometimes in coordination with, security forces and local authorities. According to OHCHR estimates, armed colectivos are allegedly responsible for at least 27 killings during recent demonstrations.[8]
[8] Office of the United Nations High Commissioner for Human Rights (OHCHR), Human rights violations and abuses in the context of protest in the Bolivarian Republic of Venezuela from 1 April to 31 July 2017, August 2017, pp.ii & iii,
With respect to those arrested and detained following the protests, HRW and the Penal Forum in their report stated that:
Since early April, more than 5,400 people have been detained in the context of massive antigovernment demonstrations in Venezuela, according to data gathered by the Penal Forum. While those arrested included demonstrators, bystanders, and people filming demonstrations—as had happened during the suppression of protests in 2014—this year saw an increase in the number of detentions carried out by intelligence or security agents in incidents completely unrelated to the protests. Those detained in such cases were political opponents, including lesser known activists, or people whom the government claimed had links to the political opposition. In some of these politically motivated prosecutions, detainees were taken away from homes or arrested hours or days after demonstrations in unrelated incidents.[9]
[9] Ibid.
Amnesty International in their 2017/18 report on Venezuela stated that during the demonstrations between April and July (2017), there were reports of ill-treatment by state officials during arrests of protesters, including kicking, beatings and sexual violence. They stated:
Venezuela remained in a state of emergency, repeatedly extended since January 2016. A National Constituent Assembly was elected without the participation of the opposition. The Attorney General was dismissed under irregular circumstances. Security forces continued to use excessive and undue force to disperse protests. Hundreds of people were arbitrarily detained. There were many reports of torture and other ill-treatment, including sexual violence against demonstrators. The judicial system continued to be used to silence dissidents, including using military jurisdiction to prosecute civilians. Human rights defenders were harassed, intimidated and subject to raids. Conditions of detention were extremely harsh. The food and health crises continued to worsen, especially affecting children, people with chronic illness and pregnant women. The number of Venezuelans seeking asylum in other countries increased.
…
The Bolivarian National Police and the Bolivarian National Guard – among other civil and military security forces – continued to use excessive and undue force against demonstrators. Between April and July there was an increase in the deployment of military forces to repress protests, resulting in an increase in the excessive use of less-lethal force and undue use of lethal force, including firing tear gas directly at people’s bodies, shooting multiple munitions such as rubber bullets, beatings, and use of firearms, all of which put protesters at risk of serious harm or death[10].
[10] Amnesty International, Venezuela 2017/2018,
Amnesty International in an April 2017 report also noted that in the context of ‘deep political polarization and marked social deterioration in recent years’, arbitrary measures were being used by the Venezuelan state security forces and justice system. They state that such measures are aimed at obstructing freedom of expression, association and political participation. They also affect people’s rights to freedom, physical integrity and due process.[11]
[11] Amnesty International, Venezuela: Silenced by Force: Politically-motivated Arbitrary Detentions in Venezuela, 2017,
More broadly there are a number of reports about the worsening human rights situation in Venezuela taking place within a wider severe economic and social crisis in the country and an increasingly unstable and polarised national political situation.[12] The International Crisis Group in a recent briefing refers to a ‘socio economic implosion’ brought about by lower oil prices, corruption and mismanagement which has devastated the economy. In such a context they describe the government as a ‘deeply unpopular government, aware that it can no longer win competitive elections, [that] has opted for repression’.[13]
[12] Office of the United Nations High Commissioner for Human Rights (OHCHR), Human rights violations and abuses in the context of protest in the Bolivarian Republic of Venezuela from 1 April to 31 July 2017, August 2017, pp.ii & iii, International Crisis Group, President Maduro’s Likely Re-election in Breadline Venezuela, Commentary, 17 May 2018,
Having regard to such country information about creeping authoritarianism under President Maduro, including the use of violence and the threat of violence to crackdown on protesters, opposition supporters or those who criticise the increasingly authoritarian government in Venezuela, the Tribunal is satisfied the applicant faces more than a remote chance of serious harm on return to Caracas on imputed political opinion grounds. As mentioned, the Tribunal accepts the applicant would become politically active on return to his home area. This is evident from his past involvement with an opposition political party, and participation in anti-government protest marches and protests in Venezuela and Australia, and ongoing interest in developments in Venezuela evident at hearing. In such circumstances the Tribunal is satisfied the applicant faces a real chance of being threatened, intimidated and physically assaulted on return to Caracas by the authorities and/or pro-government groups on the basis of his imputed anti-government political opinion. The Tribunal is satisfied the applicant’s imputed political opinion is the essential and significant reason for the harm and that the harm is systematic and discriminatory.
The Tribunal notes the delegate made their decision on this case without having the chance to hear the applicant’s oral evidence and before the significant clampdown on protesters in Venezuela in 2017.
With respect to state protection, given the perpetrators of the feared harm is the state itself, the Tribunal is not satisfied that state protection is available to the applicant.

The Tribunal is also not satisfied that the applicant can safely relocate to another part of Venezuela to avoid the harm he fears in Caracas given he fears the state. Additionally, the Tribunal considers relocation in the applicant’s case to avoid the harm he fears as a political activist in Caracas would not be reasonable given his serious mental health problems, which based on medical evidence provided, the Tribunal accepts.
For these reasons the Tribunal finds the applicant faces a well-founded fear of persecution on return to Venezuela for reasons of his imputed (anti-government) political opinion.
Third country protection: s.36(3)
Given these findings the Tribunal has gone on to consider if the applicant, as the holder of valid [Country 1] visa, has the right to enter and reside in [Country 1] and therefore is not owed protection as per s.36(3) of the Act. This section provides that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. There are exceptions to this qualification which operate, broadly, where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of being returned from that country to a place where they face such treatment: s.36(4) – (5A).
It is not in dispute that the applicant holds a [Country 1, specified] visa, issued on [date] and valid until [date] (a copy of which is on the Departmental file). According to [Country 1 information], [the specified] visas are a class of [visa] for persons who want to enter [temporarily].[14]
[14] [Source deleted]
At hearing the applicant said he has held a [Country 1] visa since he was [age]. The one he currently holds is his second [such] visa, valid for [number] years. However he claimed he can only enter [Country 1] if he [meets certain conditions], which he does not [currently meet]. He is also concerned the [Country 1] government will not let him in the [country]. [Due to] the risk of ordinary Venezuelans overstaying, it is possible they will deny his entry. He said in the current [climate], Venezuelans are subjected to extra scrutiny.
In his statutory declaration provided to the Tribunal the applicant states that when he returned to [Country 1] as a holder of the [specified] visa in 2013 (from Australia) he was questioned for around half an hour in a separate interview room at the airport. He thinks the situation has [changed] for Venezuelans visiting [Country 1] and does not think he would be able to re-enter [Country 1] on this visa because he is Venezuelan and has applied for protection in Australia. He states [Country 1]] have stopped issuing visitor visas for [Venezuelans]. He also states that in [Country 1] he applied for a new Venezuelan passport, even though he was scared to do so, and found it difficult. At hearing when asked if he experienced problems obtaining a new passport in [Country 1], the applicant replied just regular problems: that is he had to go to [the capital city] to obtain it.
The representative submits that s.36(3) does not apply in the applicant’s case. That is because, she argues, his right to enter and reside in [Country 1] on the basis of his [Country 1] visa has now lapsed because his visa would be cancelled on arrival as a result of his personal circumstances. Specifically it is submitted that:
·As part of the assessment under [Country 1 legislation] the applicant [may] be required to [state] any information sought by an immigration officer regarding the purposes and intentions of the applicant in seeking [admission], including the applicant’s intended length of stay and whether the applicant intends to remain permanently or become a [citizen], and whether the applicant is [inadmissible].
·He will be unable to show he is entering [Country 1] temporarily or that he [meets the required conditions]. As well, as the applicant has not lived in Venezuela for seven years, he will not be able to show he has binding ties to his country of residence.
·[Country 1 information] explains that the granting of a visa merely allows a foreign citizen to require permission to [enter] but does not guarantee entry. Relevant officials at the port-of-entry have authority to permit or deny admission.
·It appears there is information sharing between [Country 1] and Australia and if [Country 1] authorities are aware the applicant applied for protection in Australia, this will further weigh against him being granted entry.
·The applicant will not be able to enter [Country 1] on his current passport, which expires on [date] 2018, given the requirement as per [Country 1 legislation] that he must hold a valid passport for six months or beyond the intended period of stay.
These submissions were reiterated and expanded upon in a post-hearing submission the Tribunal received from the representative, who maintained the applicant does not have a right to enter and reside in [Country 1], despite holding [a] visa to [Country 1]. She emphasised that as a Venezuelan national who has previously applied for protection in Australia and whose passport is about to expire, it is clear the applicant will not be granted entry to [Country 1] when questioned by [an immigration official] at a port of entry. She reiterated the following main points:
·In order to be granted entry the applicant must undertake steps which require discretionary or decision making processes.
·The right to enter [Country 1] is highly discretionary and the statistics suggest it is not the normal course of conduct to allow entry nor is entry guaranteed. [Sentence deleted].
·There is no indication the discretionary exercise of power which must be undertaken prior to the applicant being granted entry to [Country 1] will be exercised in his favour and [Country 1] legislation suggests he will be deemed inadmissible. The Tribunal therefore cannot be satisfied that the applicant’s visa will not be revoked or cancelled on arrival at [Country 1].
·It is clear from information contained on the Departmental file that [Country 1] and Australia have [information sharing regimes] for visa applicants and therefore they can be certain [Country 1] will be aware of the applicant’s immigration history on arrival.
The Tribunal has considered these submissions and the applicant’s concerns that he may be refused entry to [Country 1] as articulated at hearing and in his statutory declaration provided, despite holding a [specific Country 1] visa which is valid until [year].
Australian courts have held that s.36(3) does not refer to, or presuppose, a legally enforceable right under domestic law. It is sufficient to have a ‘liberty, permission or privilege lawfully given’ which has not been withdrawn.[15] The right to which s.36(3) refers is not merely a right to enter. It must be a right to enter and reside.[16] The right should be construed as a whole.[17] Residence suggests something more than just a short or passing visit.[18] Justice Hill observed in WAGH v MIMIA that while a transit visa, for example, would be a right to enter, it would clearly not be a right to enter and reside.[19] Whether a tourist visa is a visa which authorises both entry and (temporary) residence was, in his Honour’s opinion, a more difficult question. The applicants in that case held US visas ‘for the purpose of business and tourism’. Referring to the usual dictionary sense of ‘reside’, his Honour stated that it would be an unusual, but not impossible, use of the word to refer to a tourist.[20] In the same case, Justice Lee took a narrower approach. His Honour held, with Carr J agreeing on this point, that a temporary six month visa issued ‘for the purpose of business and tourism’ would not be sufficient to provide the holder with a legally enforceable right to enter the US for purposes outside of business or tourism. Their Honours noted that in the circumstances of the case, the appellants would not be travelling to the US for the purposes of tourism or business and would thus obtain no entitlement to be admitted into that country upon arrival.[21]
[15] MIMAC v SZRHU (2013) 215 FCR 35.
[16] WAGH v MIMIA (2003) 131 FCR 269 per Hill J at [64].
[17] SZMWQ v MIAC (2010) 187 FCR 109 per Flick J at [97].
[18] SZRTC v MIBP (2014) 224 FCR 570 per Tracey and Griffiths JJ at [28].
[19] (2003) 131 FCR 269 at [64].
[20] WAGH v MIMIA (2003) 131 FCR 269 per Hill J at [65].
[21] WAGH v MIMIA (2003) 131 FCR 269 at [43], with Carr J agreeing at [75].
The concept of ‘reside’ need not extend to the ability to establish an abode in another country; it may amount to no more than just the temporary right to eat and sleep there.[22] However, it has been observed that residence suggests something more than just a short or passing visit.[23] In SZQRM v MIAC, the Federal Circuit Court upheld a Tribunal finding that a right to enter and reside in the United Kingdom (UK) for three months could be characterised as a right to ‘reside’ within s.36(3) in circumstances where it conferred privileges normally associated with residency, including the right to work, and where the UK government described the right as a ‘right of residence’.[24] In the applicant’s case his [Country 1] visa does not allow him to work and the Tribunal accepts his evidence that he was unable to work when he entered [Country 1] on that visa in 2013, relying on support from relatives at the time. It accepts that such support is no longer available. The Tribunal therefore finds his case is distinguishable to the case in SZQRM v MIAC.
[22] SZMWQ v MIAC (2010) 187 FCR 109 at [26] in SZRUH v MIAC [2013] FCCA 1164.
[23] SZRTC v MIBP (2014) 224 FCR 570 per Tracey and Griffiths JJ at [28].
[24] SZQRM v MIAC [2013] FCCA 772 (Judge Nicholls, 11 July 2013) at [114]-[117], upheld on appeal in SZQRM v MIBP [2013] FCA 1297 (Buchanan J, 5 December 2013). The case involved the rights available to the applicants in the UK as holders of passports from a European Union Member State. Judge Nicholls noted that the right to work is not necessarily an indicator of a right to residence, referring to SZMWQ v MIAC (2010) 187 FCR 109 at [110], but it makes the right more than a right just to visit, and, while the description by the UK government was not determinative, it provided evidence that if they were employed or studying, for example, the right could be seen as extending beyond three months.
Country information indicates that the [visa] held by the applicant allows him to travel to a [Country 1] port of entry and request [permission] to enter the country. The duration of stay depends on the purpose of the visit and other particulars of the case. Those allowed to enter will generally be granted [number] months admission on entry and it may be possible to obtain [an] extension to the visa on application.[25] If the applicant was to attempt to travel to [Country 1] on this visa he will be required to explain the purpose of his visit to the [Officer] at the port of entry, who will then decide whether to grant admission and for how long. If the applicant was to disclose that he intended to seek protection in [Country 1] (which the Tribunal is satisfied he might) then his visa may be subject to cancellation at the port of entry.
[25] [Source deleted
In view of the above the Tribunal finds that the applicant’s [Country 1] visa does not give him a right to enter and reside in that country for the purposes of s.36(3) of the Act.
Other matters: s.438 certificate
The Departmental file contains information that is subject to a non-disclosure certificate (dated 21 October 2015) under s.438 of the Act. The Tribunal considers the certificate valid, noting that the information was given in confidence. The T information to which the certificate was subject appears to be from a third party who used to be in an Facebook group with the applicant who alleges, among other things, that the applicant sounds like an economic refugee because he posted about having no money to return and making a claim for asylum in Australia because it is all about survival. However, the fact the applicant may have stated as such in a Facebook post does not negate his claims for protection and the Tribunal gives the information little weight. Its existence does not alter the findings and facts in this case, as set out above.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Nicole Burns
Member