1610983 (Refugee)

[2018] AATA 5051

1610983 (Refugee) [2018] AATA 5051 (29 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1610983

COUNTRY OF REFERENCE:                  Venezuela

MEMBER:Christopher Smolicz

DATE:29 October 2018

PLACE OF DECISION:  Adelaide

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 29 October 2018 at 4:03pm

CATCHWORDS

REFUGEE – protection visa – Venezuela – political opinion – opposition to the Chavez Government – Tascón List and Maisanta Program – digital identification of political opinion – imputed political opinion – media workers – media restrictions – attacks on broadcasters – employment – fear of killing – arbitrary and unlawful treatment by militias – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2.    The applicant who claims to be a citizen of Venezuela, applied for the visa on 12 December 2014 and the delegate refused to grant the visa on 23 June 2016.

3.    The applicant appeared before the Tribunal on 25 October 2018 to give evidence and present arguments.

4.    The applicant was represented in relation to the review by his registered migration agent.

RELEVANT LAW

5. 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.

Refugee criterion

6. 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).

7.    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.

8.    Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9.    There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

1. Second, an applicant must fear persecution. Under s.91R(1) of the Act (as it was then) persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

2. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

3. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

4. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

5. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

6. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

1. 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’).

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

3. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Section 499 Ministerial Direction

1. 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

1. The applicant is [age] years old and is a citizen of Venezuela. He travelled to Australia in November 2012 on a [temporary] visa as a dependant of his wife. In November 2014 he was granted a [different temporary]] visa and subsequently applied for the protection visa in December 2014.  

2. [Details deleted].

3. [Details deleted].

4. The Tribunal finds that Venezuela is the applicant’s country of reference for the purpose of assessing is protection obligations under the Refugees Convention and the receiving country for the purpose of the complementary protection criteria.

Issue

1. The issue raised by the applicant in this matter is whether he meets the refugee criterion or comes within Australia’s complementary protection obligations because:

• of his work as [an Occupation 1] working in the [media for Employer 1];

• he voted against the Chávez regime and his name is on a publicly known government blacklist - “Tascón List” and the Maisanta Program”.

The applicant’s factual claims and the Tribunal’s findings

1. First, the Tribunal sets out the claims advanced by the applicant to engage Australia’s protection obligations. The Tribunal takes these claims from the applicant’s evidence at the hearing, his entry interview and statements of claim. The applicant has also provided the Tribunal with further declaration.

2. The applicant presented in a manner the Tribunal perceived to be truthful and credible. He did not seek to embellish his claims. The Tribunal finds the applicant’s evidence is consistent with the country information applicable to his particular circumstances detailed below. The Tribunal has decided to wholly accept the applicant’s evidence.

3. The applicant was initially enrolled in [a course] at [a] University [in] Venezuela. He subsequently changed direction and completed a [different course].

4. From [specified year] to May 2010 he was employed as [an Occupation 1] for [Employer 1]. When he first commenced working for [Employer 1] he was [working on specified programs]. He subsequently progressed to work in the news department. In December 2006 he was granted leave and travelled to [another country] for [number] months to study a [further vocational qualification].

5. In support of his employment at [Employer 1] he provided a number of work identification documents which included certificates, references, payslips, and copies of his employment identification card. He was able to present evidence that confirmed that his name appears in the credits of a [broadcast] produced by [Employer 1] called “[name]” which was [broadcast] by [Employer 1] in 2010.

6. [Employer 1] was one of [the larger broadcasters] and a constant critic of President Chávez. [The Government restricted media businesses] that maintained an editorial line openly critical of the government. [Some broadcasters had licenses disapproved due to] actions in support of the April 2002 coup that temporarily removed Chávez from power.

7. The applicant said that it started to become a dangerous time to work as an independent [media employee] in Venezuela. In early 2004, in order to protect themselves, [some staff] had to remove all branding from corporate vehicles to avoid attack by government sponsored militia. By 2006 they were advised against using their uniforms in public and were issued with gas masks and bullet-proof vests. The applicant said that during this time he used a vest and mask when working in the field until he left the network in 2010. By way of example, the applicant was able to recall how on one occasion [a] station was attacked by government [militia]. The applicant was able to refer the Tribunal to media reports to corroborate his evidence.

8. [Government restrictions meant that] many employees lost their jobs at [Employer 1]. [Deleted.] Due to his skills and experience he continued to work for [Employer 1] and commenced [news projects] for [Employer 1]. The work was dangerous [as there were] demonstrations where he witnessed soldiers shooting at civilians. He said this happened on a number of occasions and the government would often accuse [Employer 1] employees of falsifying news when it was anti-government.

9. The Tribunal asked the applicant if he took any personal precautions because of his work as a [media employee] at [Employer 1]. The applicant said that he would never openly discuss his employment and tried to keep it a secret. For example, in 2009 when he worked for [a named organisation] they could not risk officially hiring him so he was paid from the personal account of one of the owners. When he travelled to Australia in 2012 he made sure that he carried no documentation which would identify him as an employee of [Employer 1].

10. The applicant said that although he is not a political activist or member of any political party in Venezuela, he feared for his life because, due to being employed at [Employer 1], he was labelled an enemy of the revolution. All his education and work experience was gained working in high visibility positions in press and media outlets. His professional and social circles are aware of his long career in [Employer 1] and his political position against the government. Most of his profession has left Venezuela.

11. The Tribunal asked the applicant to explain what he fears may happen if he returned to Venezuela and it became known that he was a former employee of [Employer 1]. The applicant said that he would take precautions not to disclose his employment history because government officials have a lot of discretionary power in Venezuela which can result in arbitrary arrest, detention or extortion.

12. The applicant said that [Employer 1] employees were constantly threatened and attacked both verbally and physically. The applicant referred the Tribunal to [a report] documenting attacks on [colleagues] who worked with him in Venezuela such as [colleague names]. For example it was reported:

    [Deleted][1]

    [1] [Source deleted.]

13. The applicant explained how [another source] considers the cases of journalists and workers at [Employer 2] who were victims of physical attacks or threats, among other violations of free expression.[2]

    [2] [Source deleted.]

14. The applicant explained that his anti-government political opinion also needs to be seen in the context of actions in 2002 in supporting the coup d’etat and signed a petition asking for a referendum against Chávez. As a consequence his name is known to the authorities and he is blacklisted by the government. His identity details appear in the “Tascón List” and the Maisanta Program”. The applicant was able to provide computer screen shots in support of his claims.

15. The applicant explained how in Venezuela every legal, economic or bureaucratic procedure requires a person’s identification “ID Card”. Any government official who checked his ID card against the Tascón-Maisanta software would know he voted against Chávez. This profile imputes him with an anti-government political opinion and impacts on his future employment prospects and safety in Venezuela.

16. By way of example, the applicant explained how the police regularly stop people at check points and check their ID cards. He said it is impossible to hide his anti-government political opinion. The applicant explained how the police or any government official who checks his ID card can blackmail or try extorting money from him because of his political profile. He fears that given the current desperate economic situation in Venezuela there would be a real chance he could be kidnapped or subject to extortion due to his anti-government political opinion. Currently all TV, radio stations and newspapers in Venezuela are under government control and avoid hiring blacklisted people. Even if he were able to obtain a job at an independent media outlet he is at risk of arbitrary and unlawful treatment by militias and government officials. If he were given a job at a government-controlled media outlet his rights to freedom of thought and freedom of expression would be violated. In order to keep the position he would be forced to renounce his political beliefs and publicly support Chávez’s regime.

17. He also fears he would be identified because he would be returning from a western country and because he is not malnourished like the majority of the population in Venezuela.

18. If he returns to Venezuela he would have great difficulty finding work in areas where he has no experience, training or work references. This would mean he would be forced to seek work in low paying jobs. He would be forced to live in the slums which are controlled by the government militias called ‘colectivos’.  If he approached the police and they checked his ID card his life could be in danger because there is no state protection in Venezuela.

Country Information

Political Discrimination

Blacklisting “Tascón list” and “Maisanta program”

1. The Tribunal has had regard to Human Rights Watch (HRW) publication ‘A Decade Under Chávez” which provides the following information on political discrimination arising from the Tascón list and Maisanta program in Venezuela. The Tribunal finds the information is consistent with the applicant’s claims that he would be imputed with an anti-government political opinion if he was to return to Venezuela in the reasonably foreseeable future as discussed in the extract from the HRW report:

   Political discrimination under Chávez was most pronounced in the aftermath of the 2004 recall referendum on Chávez’s presidency. Citizens who exercised their right to call for the referendum—invoking one of the new participatory mechanisms championed by Chávez during the drafting of the 1999 Constitution—were threatened with retaliation and blacklisted from some government jobs and services.  After denouncing the referendum effort as an act “against the country”, Chávez requested that electoral authorities give legislator Luis Tascón a list of those who signed the referendum petition, which was made publicly available on the internet.  The “Tascón list” and an even more detailed list of all Venezuelans’ political affiliations—the “Maisanta program”—were then used by public authorities to target government opponents for political discrimination. (There were also reports that private sector employers utilized the lists to discriminate against Chávez supporters.)[3]

War on media - [Employer 1]

[3] A Decade Under Chávez Political Intolerance and Lost Opportunities for Advancing Human Rights in Venezuela HRW September 2008 p.10 type="1">

The Tribunal has also had regard to country information and finds that sanctioning and censorship of the media has resulted in persecution on broadcasters, reporters and journalists in Venezuela. [Details deleted][4] as [reported]:

[Details deleted].

…

[Details deleted].[5]

[4][Source deleted.]

[5] [Source deleted.]

1. In a report from the United Nations News Service, dated 20 October 2014, the United Nations High Commissioner for Human Rights was said to have ‘deplored the continued reports of threats and intimidation directed at people working to defend human rights in Venezuela, and urged that they be allowed to pursue their work and speak up without fear for their safety.’[6]

   [6] United Nations News Service 2014, Venezuela: UN rights chief calls for immediate release of opposition leader, politicians, 20 October, UNHCR Refworld < <CX1B9ECAB9432>

2. Reports from the second half of 2014 have been located which refer to persons such as journalists investigating adverse prison conditions,[7] a human rights activist,[8] a lawyer defending a person alleged to have links with paramilitary groups in Colombia,[9] and a person who is part of a family seeking justice for police abuses against it,[10] being subject to violence and threats.

   [7] Reporters Without Borders 2014, Death threats against three journalists by National Guard members, 28 November < CX1B9ECAB9429>

   [8] Amnesty International 2014, Venezuela: Four people, including police, attack defender: Luis Uzcátegui, 3 November < <CX1B9ECAB9425>

   [9] Amnesty International 2014, Venezuela: Lawyer threatened and under surveillance: Omar Ernesto Silva Martínez, 24 October < <CX1B9ECAB9427>

   [10] Amnesty International 2014, Venezuela: Further information: Police threaten and intimidate Barrios family, 26 September < <CX1B9ECAB9430>

3. Reporters Without Borders reported that two newspaper photographers and a television cameraman had ‘received death threats from members of Venezuela’s Bolivarian National Guard (GNB) in charge of security at David Viloria Penitentiary (also known as Uribana prison) in the western state of Lara’ on 24 November 2014. The journalists ‘had gone to the prison to enquire about a hunger strike that inmates had reportedly begun in protest against mistreatment by prison staff.’[11] The following information was provided about the treatment that the journalists had received from GNB officers at the prison:

   La Prensa photographer Abraham Palencia said he was manhandled by a GNB officer, who confiscated his memory card and said that he would “end up in ditch” if he published any report about his visit. The GNB also threatened El Impulso photographer Edickson Durán and Promar Televisión cameraman Tomas Gaona and seized their equipment.[12]

Does the applicant have a well-founded fear of persecution for a convention reason?

[11] Reporters Without Borders 2014, Death threats against three journalists by National Guard members, 28 November < CX1B9ECAB9429>

[12] Reporters Without Borders 2014, Death threats against three journalists by National Guard members, 28 November < CX1B9ECAB9429>

1. The next issue for the Tribunal to determine is whether the applicant has a well-founded fear of persecution for a convention reason in light of the Tribunal’s factual findings above.

2. The delegate accepted that if the applicant’s political opinion was known, he would be denied police protection or other state protection for a Convention reason in Venezuela. The delegate found however that the applicant does not need to disclose his work for [Employer 1] to prospective employers outside the media industry. The delegate found that the applicant did not hold a high level profile position at [Employer 1] and found that people outside his immediate colleagues would be unaware of his work for [Employer 1] unless he told them. In the circumstances the delegate was not satisfied the applicant’s work for [Employer 1] will lead to a real chance of serious harm.

3. The Tribunal has had regard to country information and accepted the applicant is on the Tascón list and as a consequence, as long as the United Socialist Party of Venezuela (PSUV) holds power he will face difficulties obtaining government employment and will be identified as a person who was opposed to the PSUV.

4. The Tribunal has had regard to the applicant’s evidence and notes that although he was not a member of any political party in Venezuela his blacklisting, education, profession ([Occupation 1]) and past employment would impute him with an anti-government political opinion if he was to return to Venezuela in the reasonably foreseeable future.

5. Having regard to the applicant’s profile the Tribunal finds that the applicant cannot avoid persecution by hiding his prior employment with [Employer 1] if he returns to Venezuela. The Tribunal finds the applicant was employed with [Employer 1] for [number] years during the period when [Employer 1] and its employees were seen as enemies of the state. His education and work experience were attained working in highly visible positions in press and media outlets. His professional and social circles are aware of his long career in [Employer 1] and his political position against the government.

6. The Tribunal has also had regard to more recent country information which confirms that security forces under the current Maduro government have detained, interrogated, and confiscated the equipment of several journalists in 2017. Some international journalists were barred from entering the country, or were detained after covering anti-government protests or the health crisis. Several cable news channels and radios were taken off the air.[13]

   [13] ‘Human Rights Watch. World Report 2018. Events of 2017’, Human Rights Watch, 18 January 2018, pp.617-624 ‘Venezuela’ at p.621, NGED867A63. Detailed information is in ‘Democratic Institutions, the Rule of Law and Human Rights in Venezuela. Country Report’, Inter-American Commission On Human Rights, 

7. Obstruction, intimidation, physical attacks, confiscation of equipment, and detentions and arrests of media workers continued in 2017. Journalists seeking to cover the October 2017 gubernatorial elections were reportedly denied access to polling sites. Journalist Braulio Jatar, who was arrested in September 2016 on specious charges, was transferred to house arrest in May 2017 after eight months in prison.[14]

   [14] ‘Freedom in the World 2018. Venezuela Profile’, Freedom House, Accessed 2 February 2018, p.[12], NGED867A64. Detailed information is in ‘Democratic Institutions, the Rule of Law and Human Rights in Venezuela. Country Report’, Inter-American Commission On Human Rights, on OAS Organization of American States website, 31 December 2017, pp.154-158 paragraph 282-290, CISEDB50AD9024. 

8. The US Congressional Research Service reported that Maduro manipulated democratic institutions, prevented the National Assembly from functioning, cancelled a recall referendum, failed to convene constitutionally mandated elections, cracked down on the opposition, media, and civil society, violently quashed dissent, engaged in drug trafficking and corruption and refused humanitarian aid.[15]

   [15] Venezuela: Background and U.S. Policy, (name redacted) Specialist in Latin American Affairs, [US] Congressional Research Service (Congressional Research Service, CRS Report R44841, 14 June 2017), p.2, on The United States Department of Justice website, CISEDB50AD8609 

9. The Tribunal finds that the applicant’s fears of extortion, kidnapping and blackmail have to be assessed against the current political, economic and social crisis in Venezuela. Country information confirms that corruption is rampant in Venezuela. There are acute shortages of food, medicines and other basic goods. About a fifth of the population eats only one meal a day. Malnutrition and preventable diseases have risen sharply, and the health service is close to collapse.[16]

   [16] Amnesty International Report 2017-18, Amnesty International, 22 February 2018, pp.393-397 ‘Venezuela’ at p.397, NGED867A612 

10. Political and socio-economic events have led to the outflow of an estimated 2.3 million Venezuelans into neighbouring countries and beyond since August 2015.[17] The UN High Commissioner for Refugees reported in March 2018 that while those departing Venezuela did so ‘for a variety of reasons, including threats by armed groups, fear of being targeted on account of political opinion real or perceived, insecurity and violence, lack of food, medicine or access to essential social services as well as loss of income’, it was apparent that ‘a very significant proportion’ of the departing Venezuelans invoked ‘international protection considerations according to the refugee criteria contained in the 1951 Convention/1967 Protocol or the 1984 Cartagena Declaration’. Some 146,500 had filed asylum claims; some 444,000 had accessed other forms of protection or alternative legal stay (temporary or longer-term) in their host countries.[18]

    [17] Migration flows in Latin America and the Caribbean. Situation Report. September 2018', UNICEF, [document created 7/09/2018], p.[14], CIS7B839419720 

    [18] Venezuela Situation. Responding To The Needs Of People Displaced From Venezuela. Supplementary Appeal. January - December 2018, UNHCR [United Nations High Commissioner for Refugees] (UNHCR, March 2018 [Document created 13/3/2018]), p.5, CIS7B839411051. Colombia estimate also in ‘Migration Trends in the Americas. Bolivarian Republic of Venezuela’, International Organization for Migration (IOM), April 2018 [Document created 24/4/2018], pp.[1] & 9, on Oficina Regional de la OIM para América del Sur [Regional Office de the IOM for South America] website, CIS7B839411071. 

11. The Tribunal has had regard to the country information and the applicant’s profile and considers the chance of the applicant being blackmailed and extorted by the authorities, being detained and suffering serious physical harm is not remote or insubstantial and in fact is significant enough to amount to a real chance.  The Tribunal considers the extortion, detention and physical mistreatment would amount to serious harm.

12. The Tribunal finds that the persecution feared by the applicant is at the hands of the authorities. The Tribunal finds that there is a real chance the authorities would become aware of the applicant’s past employment and anti-government political opinion if he is required to present his national ID card. For example, country information confirms that civilian authorities maintain effective, though highly politicised, control over the security forces.[19] Military officials, many in active service, occupy a number of top positions in government ministries and state-level administrations, and the armed forces perform routine government duties.[20]  As President, Maduro promoted hundreds of officers: there were reportedly 1300 generals and admirals in April 2018, when active and retired officers held 14 of 32 cabinet posts. Soldiers replaced many of the 80 state oil company leaders that Maduro imprisoned from August 2017.[21] From July 2016 the Defence Minister has overseen food supply.[22] Ports were militarised and high-ranking members of the military control not only the nation’s security, but its legitimate industries and, reportedly, its black markets.[23] The Tribunal finds the applicant cannot access state protection in such an environment.  Further the Tribunal considers relocation is not an option in this case when the authorities are the agents of harm.

    [19] Country Reports on Human Rights Practices for 2017. Venezuela, United States Department of State. Bureau of Democracy, Human Rights and Labor, p.1 Executive Summary, 20 April 2018, OGD95BE927489 

    [20] Freedom in the World 2018. Venezuela Profile, Freedom House, Accessed 2 February 2018, pp.[10]-[11], NGED867A64

    [21] The Bloody Grab for Gold in Venezuela’s Most Dangerous Town, Rosati A, Bloomberg Businessweek, 9 April 2018, CIS7B839411402 

    [22] Venezuelan President Puts Armed Forces in Charge of New Food Supply System, Kurmanaev A, The Wall Street Journal, 13 July 2016, CX6A26A6E26581 

    [23] The Bloody Grab for Gold in Venezuela’s Most Dangerous Town, Rosati A, Bloomberg Businessweek, 9 April 2018, CIS7B839411402 

13. There is nothing in the evidence before the Tribunal to suggest that the applicant has a legally enforceable right to enter and reside in any country other than Venezuela. 

14. Looking to the reasonably foreseeable future the Tribunal finds that there is a real chance the applicant would experience serious harm from authorities in Venezuela because his past employment as [an Occupation 1] working in the news reporting section of [Employer 1] and because he voted against the Chávez regime and his name is on a publicly known government blacklist – the Tascón List and the Maisanta Program.

15. In conclusion, the Tribunal finds that the applicant’s fear of persecution if he were to return to Venezuela because of his imputed political opinion is well-founded.

16. 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

1. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Christopher Smolicz
Member

Key Legal Topics

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• Statutory Interpretation

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