1611005 (Refugee)

[2019] AATA 6790

1611005 (Refugee) [2019] AATA 6790 (19 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1611005

COUNTRY OF REFERENCE:                   Venezuela

MEMBER:Gabrielle Cullen

DATE:19 November 2019

PLACE OF DECISION:  Sydney

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 19 November 2019 at 10:29am

CATCHWORDS

REFUGEE – protection visa – Venezuela – political opinion – fear from Colectivos – attended protests and demonstrations – member of Juventud Militante – chased and threatened by Colectivos – freedom of speech non-existent – no guarantee for safety for citizens – mother relocated – unable to obtain protection from authorities – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 91R

CASES

Appellant S395/2002 v MIMA (2003) 216 CLR 473

SZTFI v MIBP (2015) 231 FCR 222
VFAC v MIMIA [2004] FCA 367

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 is a citizen of Venezuela born in Caracas, lived there until he departed for Australia on a student visa [in] February 2010. He claims to fear return on account of his political opinion and as he attended protests against the Government in February 2014. He claims he was threatened by the Colectivos, being armed groups that support the Government, after his attendance at a protest against the Government [in] February 2014. He applied for the visa on 28 March 2014.

3. Movement records indicate that since his arrival in Australia in February 2010 he has travelled outside Australia on 10 occasions for short trips, the last being from [December] 2013 to [February] 2014.

4. On 24 June 2014 the applicant was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision. While the delegate accepted that the applicant was a casual attendee at political demonstration she did not accept he has a profile which will draw adverse attention in Venezuela. She accepted that while he had political interest and sympathies the evidence provided did not indicate he will be a political target as there was no material evidence of membership of the MUD, no [Social Media 1] posts or membership to any Venezuelan organisation either in Australia or Venezuela. She also did not accept he will be targeted on return as his mother had not exhibited any behaviour that indicates that the threat is real as the applicant stated that a few weeks after the Colectivos threatened them near their home, she returned to that home.

5. The applicant appeared before the Tribunal on 18 November 2019 to give evidence and present arguments and where relevant the evidence from that hearing appears in this decision. The applicant was represented in relation to the review by his registered migration agent and he attended the hearing.

6. The issues to be considered in this case are as follows.

   ·Is the applicant credible as to his country of citizenship?

   ·Does he have a right to enter and reside in any other country?

   ·Is the applicant credible as to his claims?

   ·Does he have a well-founded fear of persecution in relation to Venezuela and meet the protection obligations under the Refugees Convention?

   CRITERIA FOR A PROTECTION VISA

7. The relevant criteria for a protection visa are outlined in the Appendix.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited, to the following.

   ·The applicant’s protection visa application of 28 March 2014, including a statement outlining his claims for protection, identity documents and police certificate dated [Mach] 2014 indicating he has no criminal record in Venezuela

   ·Oral evidence of the applicant provided at the Department interview held on 20 June 2014 and the Tribunal hearing held on 18 November 2019.

   ·Complaint by [a person] to the Homicides Investigation Division [in] March 2014 that her son, the applicant, was in a protest [in] February 2014 close to their home and at 5.45pm on the same day some unknown persons riding on motor cycles caused damage to her vehicle, breaking the windscreen and engine hood and insulted both of them with rude words, swearing and saying they were going to kill tham if they continued to participate in protests. She claims they followed them to her house and that she fears for her and her family’s lives.

   ·Submission from the applicant's former representative dated 4 August 2017.

   ·Statutory declaration of the applicant dated 28 July 2017

   ·Letter from [Dr A] dated [June] 2017 indicating that the applicant is a member of the Juventud Militante (Militant Youth Group) since July 2005; he participated in the people’s protest of February 2014 in the city of Caracas, where they were expressing their rejection of the Government. She notes during that protest he was attacked. It notes that from July 2005 to July 2007 he was [a member] and from January to February 2014 he was supplier and involved in [an industry] for the camp established at [a location] and that [in] February 2014 he took part in the protest march towards the Public Ministry held as part of the protest activities carried out on youth day and from [February] to [February] 2014 he actively participated in the protests organised in the neighbourhood of [a location] in the municipality of [another location].

   ·Applicant comments on [Social Media 1] sharing articles with friends regarding political situation in Venezuela and voicing concern [in] October 2012, [June] 2015, [March] 2015, [August] 2014 and[] 2014.

   ·Applicant’s statutory declaration dated 14 November 2019 including evidence as to his uncle’s profile.

   ·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Is the applicant credible as to his country of citizenship?

10. On the basis of the applicant’s identity documents, and evidence provided at hearing the Tribunal accepts that the applicant is a national of Venezuela. Therefore for the purposes of s.36(2)(a) the Tribunal accepts that Venezuela is the country of nationality and for the purposes of s.36(2)(aa) the Tribunal accepts that Venezuela is the receiving country.

    Does he have a right to enter and reside in any other country?

11. As there is no evidence before the Tribunal that the applicant has lived in another country or has any connection to another country the Tribunal finds that he does not have a right to enter and reside in any other country in terms of s.36(3) – (5) of the Migration Act, other than Venezuela.

    Is the applicant credible as to his claims?

    The Applicant’s Claims

12. The applicant claims in his protection via application dated 24 March 2014 that he fears return as freedom of speech does not exist anymore in his country, and he is afraid that he could get tortured, harmed or even killed if he expresses his political opinion. He claims he has already been warned by armed groups that if he decides to go out to the streets of his city to protest once again, they will hurt him. He claims he left his country as he felt that his life was under threat. He claims he was threatened by the Colectivos [in] February 2014 after he attended a political gathering in [District 1]. He claims he will be harmed by groups that support the government (Colectivos), military forces and even police forces. He claims they are using oppression to stop young Venezuelans like him from expressing their political views. He said the Colectivos who are outlaws are trained to fight against whoever does not support the government of Venezuela. As to what will happen to him if he returns he claims that there is no justice in his country and the armed forces can get away with hurting protesters. He said there are several cases of young Venezuelans who have been sent to gaol for expressing their opinion about the government of Venezuela. He claims they have been tortured. He states he is afraid that he could be next and the fact that the Colectivos tried to hurt him once before is an indicator that it could happen again. As to whether the authorities can and will protect him he states armed forces in his country support the government and the government supports them. He claims he does not have weapons and he only has his voice to fight back to express his political opinion. The applicant states according to the constitution of his country, he has the right to peacefully protest against something he does not agree with, in this case, the government of his country and these rights are being violated by the government and armed forces. He states when his mother lodged a complaint after they got attacked by the Colectivos, the police officer told her that what he, the applicant did was wrong and that he should not go out to protest again.

13. In the statement attached to his protection visa application the applicant makes the following claims.

    ·[In] February 2014 the applicant claims he decided to attend a political gathering in [a location] (a residential area in Caracas), which was planned by opposition leaders Leopoldo Lopez and Maria Corina Machado. He claims the reason for the gather gathering was to discuss all the problems that were affecting Venezuela and to make a call for opposition supporters to march against the government [in] February 2014 in Caracas and other capital cities in Venezuela. He claims some of the problems included the rise of crime rates, shortage of basic goods such as toilet paper, coffee, sugar, and cooking oil and the lack of freedom of speech. 

    ·[In] February 2014 the applicant claims he attended a march with two of his friends in order to express their discontent with the current problems that Venezuela is facing. He claims people began to gather at [Location 1] around 10 AM in but did not leave the area until 12 PM. He claims once they left [Location 1], they were headed towards [Parish 1], which is a residential area located in [an area of] Caracas. The applicant claims everything was running smoothly when approximately around 3pm, members of the Colectivos, a group of armed outlaws who support the government and members of SEBIN, Bolivarian National Intelligence Service attacked a group of protesters who were peacefully leaving [Parish 1]. He claims two people were shot dead during the attacks. He claims that he and his friends had returned to their homes around 2pm in the afternoon to avoid problems.

    ·The applicant claims he did not know what happened until he arrived to his home and his mother told him about everything that happened during the protest. The applicant claims on the same day a news television channel from Colombia called NTN24 was removed from the grid of cable operators in Venezuela for broadcasting what was happening that day in Caracas and other capital cities in the country. The applicant claims the government made the decision to remove the news channel from the grid of cable operators because they were instigating violence and hate.

    ·The applicant claims international television channels and social networks are the only mediums that Venezuelans can use to access information about what is happening in the country. He claims local television channels are not allowed to broadcast or inform the population of Venezuela about these events.

    ·[In] February 2014 the applicant claims he decided to attend another political gathering this time by himself, which took place in a residential area called [District 1] and it was organised by the neighbours. He claims the area is fairly close to where he lives, so he considered that it would be safe. At approximately 5 PM his mother arrived later to the area to join him. They decided to stay there for a little longer. The applicant claims at 5:45[members] of the Colectivos, approximately 20 people, arrived in the area on motorbikes, carrying guns and threatened to hurt everyone involved in the gathering if they did not leave. He claims one of the protesters began to argue with a member of the Colectivos and got hit by that member in the face with what seemed to be a baseball bat.

    ·The applicant claims he and his Mum immediately ran back to his Mum’s car and got inside to protect themselves. The applicant claims shortly after members of the Colectivos surrounded them and began to hit their car with weapons. He claims they broke the windshield of the car and left two holes on the hood. His Mum then started the car as fast as she could and drove back to their home. The applicant claims they suddenly realised that some members of the Colectivos were following them. They followed the applicant and his mother to the residential area where he lives with his mother. He claims the Colectivos threatened to kill them if they continued protesting. He claims fortunately some of their neighbours came out from their apartments and helped them. He claims the Colectivos remained in the area driving their bikes for a few more minutes then finally left.

    ·On the night [in] February 2014 the applicants claims he consulted his mother about the possibility of leaving the country, considering he had studied in Australia, had a valid Australian visa and that his father and step brother lived in [a city]. The applicant considered returning to Australia to seek protection. He claims when he completed his degree course in [an Australian city] in [date], he decided to leave Australia for good. However, since protests began in Caracas and other capital cities in Venezuela [in] February 2014 and armed groups threatened to kill him, he made the decision to return to Australia to seek protection. He claims he left Venezuela [in] February 2014 and arrived in Australia [in] February 2014.

    ·The applicant claims his mother did not lodge a complaint right after the events happened, because she considered that it could have been dangerous for them. She would have to provide information about her residential address, work and so forth. The applicant claims the threats did not stop, as members of the Colectivos continued to go the residential area to threaten his mother. [In] March 2014 his mother lodged a complaint at a police station and decided to move to the apartment of one of his aunts for a few weeks.

    ·The applicant claims the reason why he fears returning to his country has to do with the fact that there is no such thing as freedom of speech and if he decides to protest against the government once again, he could be tortured, sent to prison or even killed by armed forces. He claims this is a clear violation of his rights as a Venezuelan to express his opinion about political matters. The applicant claims the Venezuelan judicial system. Additionally, he claims armed groups are targeting young Venezuelans like him because they represent the majority of people who protest against the government.

    ·The applicant claims at some point he contemplated moving to a different city within Venezuela, however protests spread to several other capital cities like Valencia, Maracaibo, Merida, Puerto la Cruz and Barquisimeto amongst others. He claims in addition, most job opportunities are available in Caracas, where protests are more consistent. He claims so far 32 people have been killed during these protests across the country.

14. At the Department interview held on 24 June 2014 the applicant reiterated his claim to fear return due to his political belief. His evidence is summarised as follows:

    ·He claims to have attended protests held [in] February 2014, [and another date in] February 2014 where Maria Corina and Leopoldo Lopez spoke and spoke in some detail about those protests. He stated that the protests in February 2014 began due to the arrest and detention of a group of students, and then it escalated to include a combination of a number of other issues, such as the lack of safety on the street, the devaluation of their currency and the high costs of living. He outlined that 3 people were killed in the protest [in] February 2014.

    ·The applicant stated that he has attended other protests which were advertised via social media. He stated that he attended two protests in July 2013, which were held at [a district], Caracas. He stated that these protests were calling for a new president and new elections.

    ·He outlined the threats made against him and his mother by the Colectivos after attending the protest [in] February 2014. He said he and his mother were followed by two people, after the protest, who shouted threats warning them not to protest against the government or they will be harmed. He said that luckily when they neared their home, their neighbours assisted by shouting back at the Colectivos.

    ·The applicant stated that he did not know why the Colectivos singled him out. He said that there were many other people and the police did nothing to protect the protesters as they too were being threatened by the "outlaws".

    ·The applicant stated that the Colectivos live in slums, carry guns, and have an alliance with the military. He states that they are in charge of dispersing any sign of rebellion from opposition groups. They are recognised by their red coloured clothing.

    ·He states that the Colectivos target young people because they are usually the bulk of those who attend protests. He states that he supports the opposition and supports them by attending protests and writes support pieces on [Social Media 1] and [another social media platform].

    ·The applicant stated that he is not a member of any Venezuelan organisations in either Venezuela or Australia.

15. In the applicant’s statutory declaration dated 18 July 2017 the applicant reiterates his claims as to his political pinion and his attendance at protests in 2014. He added that after the applicant and his mother were followed and threatened by the Colectivos after attending the [February] 2014 protest, he decided to leave Venezuela given that he had lived in Australia for over 3 years at that point and his mother moved in with one of his aunts for a few months. He also claims that Venezuelan authorities know he has been out of the country for more than three years and if he returns they will question him as to why he has been away for so long and they will discover he has applied for protection and he could face jail time. He claims he has been very vocal on social media as to his political opinions as it is the only way he can show support to people who are struggling in Venezuela. He provided documents as to his membership of the Juventud Militante and posts made on social media reflecting his political opinion.

16. In a statutory declaration dated 14 November 2019 the applicant repeats his claims to fear return due to his political belief and adds that he prepared his protection application on his own due to a lack of economic means. He refutes the conclusion by the Department that he only had political interest and sympathies with no ongoing political involvement, claiming to be involved in a political youth group and have supplied a letter from the coordinator [Dr A]. He claims his interest in Venezuelan politics has persisted since his departure from Venezuela as evidenced by his [Social Media 1] posts that he supplied in his earlier submission. In referring to the incident that took place [in] February 2014, he claims this incident precipitated his departure from the country as neither he nor his mother believed that as a young, politically minded individual, he would have a safe future in Venezuela. The applicant claims it is very clear to the international world that the situation in his country is not improving; rather any opposition is dealt with brutally. He states he has made no claim that he was being monitored by the government in terms of his movement to the point that his passport was blacklisted. He claims only highly political positions or activists would attract this level of restriction and he has not attempted to pose as such an individual. The applicant claims he has been genuine about his political involvement as well as attendance at the protests. He claims one does not have to hold a particularly overly active profile to be targeted. He claims merely opposing the government by way of attending a protest will attract adverse attention from the Colectivos who act with total impunity. He claims generalised violence becomes quickly targeted in situations of protests as he has experienced. He claims none of the supplied police reports have been actioned and there is no guarantee of safety for citizens opposed to the regime. The applicant claims this is not an isolated opinion but one that can be verified by the majority of the news reports about Venezuela. He states he also keeps an eye on the Travel Advice issued by the Australian government and it is still set to "Do not travel to Venezuela”. The applicant states the decision maker made a point that his mother did not relocate. He claims that is incorrect. He claims due to being followed after attending a protest and the rampant increase of crime in the area including a murder in the building, his mother left her home and spent some time at her sister’s place. He claims she then relocated to [Location 2] once she managed to sell her apartment. This is where she currently lives.

1. The applicant also makes new claims regarding his uncle who worked for [a company] and [an organisation].  He attached an article that canvases his uncle’s work and responsibilities during that time in Venezuela. The applicant claims his mother assisted his uncle [in a position], did [other work] and has [also completed other tasks]. The applicant states his uncle fled Venezuela with his family in approximately 2010. He claims despite not being in the country when this occurred, his mother informed him that it was because his uncle had [details deleted]. Even though the applicant’s uncle was [details deleted].

2. The applicant claims his uncle sought and secured protection in [a country] around 2010. Shortly after relocating, he cut off all communication with his family in Venezuela, for their own protection as he was being followed and spied on before he left as he was perceived as a defector. The applicant states he has been able to track his uncle over the internet using a search engine and his uncle is listed as living in [a state overseas]. He states his mother is also listed as one of his Uncle’s relatives. The applicant provided both their passport pages as well as the result of the search. The applicant claims his uncle gave his car, [Vehicle 1], to his mother before he left. He claims in approximately 2012 when he returned to Venezuela, he and his mother were involved in a carjacking. His mother had just dropped him off at his father's home and as he went into the court yard, his mother was held at gun point by a few men who then proceeded to rob her. He claims the assailants drove off with the car. The applicant claims his mother made a police complaint that he can provide. The applicant is unsure as to why they were targeted. He claims it might have been because they were in an affluent neighbourhood or because his mother was being followed by those who were tracing his uncle’s [Vehicle 1]. The applicant claims in a separate incident [Vehicle 1] was also vandalised before it was stolen. He is providing photos as well as translations of what was written on the [Vehicle 1]. This is marked as annexure C. The applicant claims the fact that he is safe is the biggest comfort to his mother. She continues to keep a low profile as the people in the community are still aware of her relationship to his uncle.

3. The applicant claims other than being associated with his uncle, his mother keeps a discrete profile due to the mere fact that the situation is very volatile in Venezuela at the moment. Both the government who has the backing of the military, as well as the Colectivos are caught in a power struggle with the Opposition. Due to those circumstances, the applicant has asked his mother not to take part in any demonstrations or to travel too far from home. He claims he supplements her meagre income on his own due to the deteriorating economic situation in the country.

4. At the Tribunal hearing held on 18 November 2019 the applicant reiterated his claim to fear return as outlined in details in his written submissions due to his political opinion. As to his past involvement he referred to his involvement in MUD and attending protest in February 2014, his membership of Juventud Militante and Copei, its leadership and political opinion. He was able to describe in detail his and consistently attendance at protests in February 2014, which led him to depart and the threats and harassment by the Colectivos due to his attendance at a protest [in] February 2014. At the request of the Tribunal he identified on [Social Media 1] page posts made in 2015 expressing his political opinion in opposition to the Government. He indicated that he would protest on return to Venezuela and indicated in detail why, including his political belief. He said he feared the Colectivos and armed forced would harm him if he protested. He said he had a fear of attending the protests but said something must be done. The Tribunal asked him about activities he had undertaken in Australia to support the opposition movement and he referred to [Social Media 1] posts and that he is involved in a Venezuelan Organisation in Australia, where he has attended meetings to discuss the political situation. He said he last attended in 2018. He said he is fearful of too high a profile as his mother continues to live in Venezuela although she has relocated to [Location 2].

   Assessment of the credibility of the applicant’s claims

5. The delegate accepted that the applicant was a casual attendee at political demonstrations but was not satisfied that he has a profile that will draw adverse attention in Venezuela from the Colectivos or the government on his return. However, on the basis of considerably more evidence that the political situation in Venezuela has deteriorated and on the applicant’s ability to provide substantially consistent and detailed evidence at the hearing about his political belief and the difficulties he will face, the Tribunal has reached a different conclusion.

6. While he provided inconsistent evidence between the Department interview and Tribunal hearing as to whether he was a member of any political organisation in Venezuela prior to his departure, for the reasons that follow the Tribunal accepts he is credible as to his claims.

7. At the Tribunal hearing held on 18 November 2019 the applicant answered questions in detail and without hesitation. The Tribunal found the applicant’s evidence to be unrehearsed, detailed and responsive to the Tribunal’s questions as to his political belief, the current political situation, and his attendance at protests in Venezuela in the past, the difficulties he faced and how he has expressed this belief while living in Australia. In this regard the applicant was able to answer consistently particular questions as to the difficulties he faced similar to that asked at the Department interview. Further, he was able to show the Tribunal comments made on social media [on Social Media 1] page in 2015 criticising the current government. There is also documentary evidence submitted to the Tribunal as to his political involvement and belief.

8. Therefore, while the Tribunal has concerns as to aspects of the applicant’s claims, particularly as to his past membership of an opposition political party, the Tribunal has decided to give the applicant the benefit of the doubt based on his other consistent and detailed evidence as to his political practice and belief.

9. As a consequence the Tribunal accepts the following to be true with regard to the applicant’s claims.

   ·The applicant was involved in a political youth group Juventud Militante which opposes the current government.

   ·As part of MUD the applicant protested in 2013 and twice in February 2014 against the Government due to inflation, corruption, lack of employment, medicine, harm to protesters and the falling standard of living.

   ·At the protest [in] February 2014 he was chased with his mother by the Colectivos to their home and threatened with harm not to attend a protest again.

   ·The applicant departed Venezuela and his mother went to live with her sister for a few months.

   ·While his mother continues to lives in Venezuela, she has moved from Caracas to [Location 2] and does not protest or say anything again the Government for fear of harm.

   ·While in Australia, the applicant has continued to follow Venezuelan politics closely, has posted critical comments against the Government on his [Social Media 1] page and attended meetings of the Venezuela Australia organisation to show his support for the opposition.

   ·The applicant’s genuinely holds a political opinion in opposition to the current Government and if he were to return to he will attempt to protest publicly and will only stop due to a fear of harm from the Colectivos and armed forces.

   ·He is a genuine in his political belief.

   Does he have a well-founded fear of persecution in relation to Venezuela and meet the protection obligation under the Refugees Convention?

10. Having accepted that the applicant is genuine as to his political belief being in opposition to the current Government of Venezuela, he has protested in the past, been harassed and threatened by the Colectivos for protesting, will protest in the future and if not, will not protest because of a fear of harm the Tribunal has considered whether there is a real chance that the applicant will suffer serious harm on his return.

11. The Department of Home Affairs 8 April 2019 Situation Report on Venezuela reports that the most significant human rights issues in Venezuela are extrajudicial killings by security forces including government-sponsored Colectivos, torture by security forces, harsh and life-threatening prison conditions, and imprisonment of political activists.[1] It notes the following

    [1] Country Reports on Human Rights Practices for 2018 - Venezuela’, United States Department of State, Bureau of Democracy, Human Rights, and Labor, 13 March 2019, p.1 Executive Summary, 20190314114120

    Members of the political opposition have been harassed, imprisoned, and otherwise impeded from participating in the political process in Venezuela.[2] IACHR in December 2017 reported, not isolated acts, but ‘a pattern of very serious violations of the human rights of persons who demonstrate or publicly espouse positions at variance with those of the Executive’, which were backed by actions of the other (judicial and legislative) branches of government (TSJ and ANC). IACHR detailed such acts against dissidents in authority: in the Executive, National Assembly (AN) deputies, mayors and councilors, and opposition party leaders. It reported harassment, persecution via the media, disqualification from public office and from political activity, violation of immunity, interference in public functions, unlawful raids on private property, and acquiescence in violent acts ‘against members of the opposition and, in general, against anyone voicing dissent’; also ‘stigmatizing pronouncements’, ‘unwarranted criminal suits, arbitrary arrests, and even impairment of the rights to life and personal safety’.[3]

    FPV reported 286 ‘political prisoners’ at 18 November 2018.[4] FPV claimed that 317 people were registered as ‘political prisoners’ at 19 November 2017 (down from 620 at 31 July).[5] At 2018’s start, according to FPV more than 340 political prisoners were in Venezuelan prisons or intelligence services headquarters. Opposition leader Leopoldo López was serving a thirteen year sentence for inciting violence during a demonstration in Caracas in February 2014, despite a lack of credible evidence. After more than three years in prison, López was moved to house arrest in July 2017.[6] During López’s detention, at the National Centre for Military Proceedings, there had been several reports of abuses against him, including torture and denial of visits from his lawyers and family.[7] López and former Caracas mayor Antonio Ledezma, who was also under house arrest, (since 2015,[8]) were taken from their homes by security officials in August 2017 for speaking publicly against the vote for the National Constituent Assembly, which violated the terms of their detention.[9] A TSJ statement said López was forbidden from carrying out “political proselytism” and that Ledezma could not “issue statements to any media”.[10] Both were eventually returned to house arrest, though Ledezma was able to flee to Spain in November 2017.[11] López remained under house arrest in early 2019.[12] On 2 June 2018 the government provisionally released opposition coalition leader Roberto Picon from house arrest and former San Cristobal mayor Daniel Ceballos from the Ramo Verde military detention facility. Many others were released immediately following the 20 May elections. On 7 August 2018, three days after an alleged failed presidential assassination attempt, masked men abducted opposition National Assembly Deputy Juan Requesens from his home while Maduro made a televised address accusing him of involvement. Requesens was reportedly held by SEBIN in solitary confinement for 23 hours a day.[13] Caracas councilman Fernando Albán was arrested for alleged involvement in October upon returning from an advocacy trip to the United Nations in New York. He was held by intelligence services for several days until his death was reported by officials as a suicide. The UN called for an investigation into his death. A number of other opposition figures fled the country.[14]

    Several others arrested in connection with the 2014 anti-government protests or subsequent political activism remain under house arrest or in detention awaiting trial.[15] In April 2017 Amnesty International documented 22 ‘emblematic’ cases of people for political reasons arbitrarily detained from 2014 by various unlawful mechanisms, to demonstrate a broader pattern of efforts to silence dissent. The mechanisms included the use of military justice, arrest without a warrant, and the use of ambiguous and discretionary criminal definitions.[16] At 2017’s end, twelve of these people had been granted alternatives to detention, including activist Steyci Escalona, who was granted conditional release from pre-trial detention in November; the other ten remained arbitrarily detained, although the courts had ordered the release of many of them, including member of parliament Gilber Caro. Escalona and Caro, both members of Popular Will party, were arbitrarily detained in January 2017 after senior authorities publicly accused them of carrying out “terrorist activities”, and by 2017’s end, neither had been brought to trial. Despite Caro’s trial requiring authorization by parliament, his case was submitted to military courts.[17] Student and political activist Villca Fernández, from Mérida state, detained in January 2016, at 2017’s end remained arbitrarily detained by SEBIN in Caracas. He had been repeatedly denied urgent medical care and had reported other ill-treatment.[18]

    Dozens of other political leaders have been subjected to harassment, including Capriles of MUD, who in April 2017 was banned from holding public office for 15 years due to alleged financial irregularities[19]; the ban to take effect once he completed his term as Governor of Miranda state.[20]

    IACHR in December 2017 reported estimates that during the during the April-July 2017 protests 133 people were killed, 4000 were injured, and more than 5000 were arbitrarily detained; and IACHR detailed cases of human rights violations of detainees including (over one hundred cases of) ‘torture and other cruel, inhuman and degrading treatment’ and (dozens of cases of) sexual violence.[21] Many detainees were denied access to medical care or a lawyer of their choice and in many cases were subjected to military tribunals.[22] FPV claimed that at least 275 people arrested at protests were being tried by military courts in 2017, generally for offenses under the Organic Code of Military Justice (1998) such as rebellion and treason.[23]

    At least five mayors were removed from office in August 2017 for failing to stop protesters from blocking roads earlier in the year.[24] In mid-2017, after summary proceedings that violated norms of due process, TSJ sentenced five opposition mayors to 15 months in prison and disqualified them from running for office. At 2018’s start, one was being held at the intelligence services’ headquarters in Caracas, and the rest had fled the country. At least nine more mayors were subject to a TSJ injunction that could lead to similarly long prison sentences if they are accused of violating it.[25]

    Freedom House reported that the number of political prisoners increased from 103 at end 2016 to over 600 in July 2017. Most were later released, leaving about 200 behind bars at 2017’s end.[26] In December 2017, 44 people arbitrarily detained for what local NGOs considered to have been politically motivated reasons were released with alternative restrictions on their freedom.[27]

    It was reported in May 2018 that according to FPV and the Organization of American States (OAS) there were 338 political prisoners in Venezuela, the highest number since the 1960s.[28] In December 2018 FPV reported that the authorities were holding 288 political prisoners.[29]

    On 28 January 2019 the Venezuelan Program for Education-Action in Human Rights reported "35 people murdered in the context of the protests" since 21 January and accused the police special forces unit (FAES) of carrying out eight "extra-judicial executions" following the protests. Another NGO, Foro Penal, said 850 people, among them 77 children, had been arrested.[30] On 29 January U.N. human rights spokesman Rupert Colville said at least 40 people are believed to have been killed in Venezuela's recent violence, including 26 shot by pro-government forces, five killed in house raids and 11 during looting. He said more than 850 people were detained between 21 and 26 January, including children as young as 12. On 23 January 696 people were detained across the country, the highest daily number of detentions in 20 years.[31] Residents of one poor Caracas neighbourhood, Petare, said police and national guardsmen swarmed Petare’s streets on 23 January night, summarily executing suspected agitators: “people say they killed people in their own homes who had no criminal records.”[32]

    When President Maduro introduced the Carnet de la Patria (Homeland Card[33], or Fatherland Card[34]) on 29 December 2016 as an electronic card which would initially serve to ration and distribute the food sold by the Local Committees of Supply and Production (Comités Locales de Abastecimiento y Producción (CLAP)) system[[35]] and social missions[[36]],[37] there was immediate adverse reaction that  the government was preparing to increase social control and retaliation against dissent.[38] Opposition political leaders said the card was a means to collect information to limit political activism.[39]

    [2] 'Freedom in the World 2019 - Venezuela', Freedom House, 5 February 2019, section B1, 20190218085724

    [3] ‘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, p.95 paragraph 165 (detailed at pp.93-105 paragraphs 166-189), CISEDB50AD9024

    [4] Country Reports on Human Rights Practices for 2018 - Venezuela’, United States Department of State, Bureau of Democracy, Human Rights, and Labor, 13 March 2019, pp.12-13 Section 1.e, 20190314114120

    [5] ‘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, p.95 paragraph 165, CISEDB50AD9024

    [6] ‘Human Rights Watch. World Report 2018. Events of 2017’, Human Rights Watch, 18 January 2018, pp.617-624 ‘Venezuela’ at pp.617-618, NGED867A63. By another report, there were about 200 political prisoners at end 2017: ‘Freedom in the World 2018. Venezuela Profile’, Freedom House, Accessed 2 February 2018, pp.[8]-[9], NGED867A64

    [7] ‘Amnesty International Report 2017-18’, Amnesty International, 22 February 2018, pp.393-397 ‘Venezuela’ at p.395, NGED867A612

    [8] ‘Human Rights Watch. World Report 2018. Events of 2017’, Human Rights Watch, 18 January 2018, pp.617-624 ‘Venezuela’ at pp.617-618, NGED867A63

    [9] ‘Freedom in the World 2018. Venezuela Profile’, Freedom House, Accessed 2 February 2018, pp.[8]-[9], NGED867A64

    [10] ‘Human Rights Watch. World Report 2018. Events of 2017’, Human Rights Watch, 18 January 2018, pp.617-624 ‘Venezuela’ at pp.617-618, NGED867A63

    [11] ‘Freedom in the World 2018. Venezuela Profile’, Freedom House, Accessed 2 February 2018, pp.[8]-[9], NGED867A64

    [12] 'Freedom in the World 2019 - Venezuela', Freedom House, 5 February 2019, section B1, 20190218085724

    [13] ‘Country Reports on Human Rights Practices for 2018 - Venezuela’, United States Department of State, Bureau of Democracy, Human Rights, and Labor, 13 March 2019, p.13 Section 1.e, 20190314114120

    [14] 'Freedom in the World 2019 - Venezuela', Freedom House, 5 February 2019, section B1, 20190218085724

    [15] ‘Human Rights Watch. World Report 2018. Events of 2017’, Human Rights Watch, 18 January 2018, pp.617-624 ‘Venezuela’ at pp.617-618, NGED867A63

    [16] ‘Amnesty International Report 2017-18’, Amnesty International, 22 February 2018, pp.393-397 ‘Venezuela’ at p.394, NGED867A612; citing ‘Silenced by Force. Politically-Motivated Arbitrary Detentions in Venezuela’ (AMR 53/6014/2017), Amnesty International, 26 April 2017, CISEDB50AD8611

    [17] ‘Amnesty International Report 2017-18’, Amnesty International, 22 February 2018, pp.393-397 ‘Venezuela’ at p.394, NGED867A612

    [18] ‘Amnesty International Report 2017-18’, Amnesty International, 22 February 2018, pp.393-397 ‘Venezuela’ at pp.395-396, NGED867A612; citing ‘Urgent Action. Prisoner of conscience needs medical care’ (AMR 53/7464/2017), Amnesty International, 13 December 2017, CISEDB50AD8632

    [19] ‘Freedom in the World 2018. Venezuela Profile’, Freedom House, Accessed 2 February 2018, pp.[8]-[9], NGED867A64

    [20] ‘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, p.97 paragraph 171, CISEDB50AD9024

    [21] ‘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, p.110 paragraph 193 (detailed at pp.128-141 paragraphs 237-256), CISEDB50AD9024

    [22] ‘Amnesty International Report 2017-18’, Amnesty International, 22 February 2018, pp.393-397 ‘Venezuela’ at p.395, NGED867A612

    [23] ‘Achieving Justice for Gross Human Rights Violations in Venezuela. Baseline Study, July 2017’, ICJ [International Commission of Jurists] Global Redress and Accountability Initiative, 21 August 2017, p.9, CISEDB50AD9032

    [24] ‘Freedom in the World 2018. Venezuela Profile’, Freedom House, Accessed 2 February 2018, pp.[8]-[9], NGED867A64

    [25] ‘Human Rights Watch. World Report 2018. Events of 2017’, Human Rights Watch, 18 January 2018, pp.617-624 ‘Venezuela’ at pp.617-618, NGED867A63

    [26] ‘Freedom in the World 2018. Venezuela Profile’, Freedom House, Accessed 2 February 2018, pp.[8]-[9], NGED867A64

    [27] ‘Amnesty International Report 2017-18’, Amnesty International, 22 February 2018, pp.393-397 ‘Venezuela’ at pp.394-395, NGED867A612

    [28] ‘After Fraudulent Election, Venezuela President Sworn in Before Illegitimate Constituent Assembly’, Latin American Herald Tribune, 24 May 2018, CXBB8A1DA28011

    [29] Venezuela group says 2018 marked by torture of political prisoners’, United Press International (UPI), 4 December 2018, CXBB8A1DA39892; 'Freedom in the World 2019 - Venezuela', Freedom House, 5 February 2019, section B1, 20190218085724

    [30] ‘Maduro rival says taking control of Venezuela's foreign assets’, AFP [Agence France-Presse], 28 January 2019, 20190129095126

    [31] ’More than 40 dead, 850 detained in Venezuela violence, U.N. says’, Reuters, 29 January 2019, 20190130141714

    [32] ‘Venezuelan attorney general orders Guaidó investigation as crisis deepens’, The Guardian, 30 January 2019, 20190130123340

    [33] ‘More than 16 Million Venezuelans Enrolled in the Carnet de la Patria System’, RNV (Radio Nacional de Venezuela), 2 November 2017, now only accessible on Internet Archive Wayback Machine website, captured 21 February 2018, CXC90406621214; ‘Freedom on the Net 2017 - Venezuela’, Freedom House, 14 November 2017, p.20, NG2A465F5210; ‘Transparency International denounces “Venezuelan apartheid”’, MercoPress, 17 March 2018, CXBB8A1DA26569; ‘Country Reports on Human Rights Practices for 2017 – Venezuela’, United States Department of State. Bureau of Democracy, Human Rights and Labor, 20 April 2018, p.27 Section 3, OGD95BE927489; ‘President Maduro's Likely Re-election in Breadline Venezuela’, Gunson P, International Crisis Group, 17 May 2018, CIS7B839411363.

    [34] ‘With low turnout, Venezuela’s election will create what opponents call ‘puppet congress’’, Washington Post, The, 31 July 2017, CXC90406611372; ‘Venezuela's Maduro re-elected amid outcry over vote’, Reuters, 20 May 2018, CXBB8A1DA27642; ‘Poor Venezuelans crowd pro-Maduro stations in hope of vote 'prize'’, Luc Cohen & Francisco Aguilar, Reuters, 21 May 2018, CXBB8A1DA27653; 'Venezuela. Humanitarian crisis. Thematic report - 23 May 2018', ACAPS, 23 May 2018, pp.3 & 8, CIS7B839411184; ‘Maduro's tweeters, activists cash in on Venezuela election win’, Berwick A, Reuters, 26 May 2018, CXBB8A1DA34198.

    [35] ‘Life in the South American country’s poor ‘barrios’ revolves around the CLAP boxes. According to the government, six million families receive the benefit, from a population of around 30 million people. … Stamped with the faces of Maduro and Chavez, the CLAP boxes usually contain rice, pasta, grains, cooking oil, powdered milk, canned tuna and other basic goods. Recipients pay 25,000 bolivars per box, or about $0.12 at the black market rate. That is a godsend in a country where the minimum monthly wage is less than $2 at that rate - and would be swallowed up by two boxes of eggs or a small tin of powdered milk. Inflation, at more than 4,000 percent annually according to opposition data, is pulverizing household income. … A dozen recipients told Reuters that often they arrived half-full and would only come every few months. Outside of the capital Caracas, delivery was even more sporadic.’: ‘For poor Venezuelans, a box of food may sway vote for Maduro’, Andreina Aponte & Ana Isabel Martinez, Reuters, 12 March 2018, CXBB8A1DA34199

    [36] ‘Carnet de la Patria ha otorgado protección social a más de 250.000 familias venezolanas [Carnet de la Patria has granted social protection to more than 250,000 Venezuelan families]’, AVN [Agencia Venezolana de Noticias], Gobierno del Estado Bolivariano de Yaracuy [Government of the Bolivarian State of Yaracuy], 16 May 2017, CXC90406621223 (Google Translate translation ‘“Carnet de la patria”: el nuevo racionamiento de comida en Venezuela [“Homeland card”: the new food rationing in Venezuela]’, Avendaño O, Panam Post, 29 December 2016, CIS38A80129134 (Google Translate translation ‘Carnet de la Patria. El apartheid revolucionario’ [Homeland Card. Revolutionary apartheid], Transparencia Venezuela [Transparency Venezuela], undated [2018], [document created 15 March 2018], p.5, CIS7B839419024.

    [38] ‘“Carnet de la patria”: el nuevo racionamiento de comida en Venezuela [“Homeland card”: the new food rationing in Venezuela]’, Avendaño O, Panam Post, 29 December 2016, CIS38A80129134 (Google Translate translation ‘Freedom on the Net 2017 - Venezuela’, Freedom House, 14 November 2017, p.20, NG2A465F5210; the reference in footnote ‘147 Yoerli Viloria Diario de Los Andes, “El Carnet de la Patria pone en peligro la privacidad” [The Homeland Card endangers privacy] January 29, 2017, is not accessible.

1. In light of the findings set out above, particularly the fact that the applicant continues to have a strongly held political view about the Government, and that he will attempt to protest against the Government on return, and if he cannot, will not for fear of harm to him and his mother, the Tribunal is of the view that there is a real chance that members of the Colectivos, security apparatus and/or Government will attempt to intimidate, threaten him with harm or harm him while he protests to express his political belief. In this context, it is no answer to his claims to suggest that he could avoid that persecution by concealing and suppressing his well-founded sense of injustice and grievances with the Government.  According to the High Court decision in Appellant S395/2002 v Minister for Immigration, the need to act discreetly to avoid the threat of serious harm constitutes persecution.  In the S395 decision, Justices McHugh and Kirby stated:[40]

   In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future.  The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted.  In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm.  In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm.  It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct.  To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

   [40]    Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [43].

2. The principle underlying the judgments in S395/2002 v MIMA is that asylum seekers are not required, nor can they be expected, to take reasonable steps to avoid persecutory harm.[41] The Federal Court has emphasised that, on the reasoning of the High Court in S395/2002 v MIMA, the harm in question is the threat of persecution, rather than the impact of repressed behaviour.[42]

   [41]    VFAC v MIMIA [2004] FCA 367 (Weinberg J, 31 March 2004) at [32].

   [42]    SZTFI v MIBP (2015) 231 FCR 222 at [72].

3. On the basis of the country information outlined above and what the Tribunal accepts of the applicant’s claims, the Tribunal is satisfied that there is a real chance that the applicant will come to the adverse attention of the authorities in Venezuela, and will be harassed, intimidated, arrested, and suffer significant physical harassment and ill-treatment, if he returns to Venezuela now or in the reasonably foreseeable future. The Tribunal further finds that the persecution which the applicant fears involves ‘serious harm’ as required by s.91R(1)(b) of the Act, as it involves significant physical harassment and significant ill-treatment and/or a threat to his liberty as defined in s.91R(2) of the Act.

4. The Tribunal does not consider that s.91R(3) is enlivened as it has found he is a genuine in his political belief and in his actions to protest against the government, which he has done in the past while in Venezuela.

5. For the reasons outlined above, the Tribunal is satisfied that the applicant’s fear of persecution is well-founded and finds that the essential and significant reasons that the applicant risks persecution in Venezuela is the Convention reason of his political opinion.

6. The Tribunal is satisfied that in the present case the risk of Convention persecution exists in the country as a whole and that safe relocation within Venezuela is therefore not reasonably open to the applicant.

7. As the harm the applicant faces is at the hands of the Venezuelan government, security and intelligence forces and the Colectivos who work for the Government, the Tribunal is satisfied that the applicant will be unable to obtain protection by those authorities from the harm he faces.

8. The Tribunal therefore finds that the applicant faces a real chance of serious harm due to systematic and discriminatory conduct for an essential and significant Convention reason, and that there would be a failure on the part of the state of Venezuela to protect him throughout the whole of the country.

9. 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

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

    Gabrielle Cullen
    Member

    
    

    ATTACHMENT - 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.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.