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

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).
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read 1611005 (Refugee) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] AATA 6790
Decision Date: 19 November 2019

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a national of Venezuela. The applicant claimed to fear persecution from *Colectivos* due to his participation in protests and his membership in the *Juventud Militante* (Militant Youth Group). The applicant alleged that freedom of speech was non-existent in Venezuela, that citizens were not guaranteed safety, and that his mother had relocated due to these fears. The decision under review was made by the Refugee Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), which requires Australia to have protection obligations under the *Refugee Convention*. This involved determining if the applicant had a well-founded fear of persecution for reasons of political opinion, or membership of a particular social group, and was therefore unable or unwilling to avail himself of the protection of Venezuela.

The Tribunal considered extensive evidence, including the applicant's statements, oral evidence, a complaint from his mother detailing threats and damage to her vehicle following his participation in a protest, a letter confirming his membership in the *Juventud Militante* and detailing his protest activities, and social media posts expressing political concerns. The Tribunal accepted the applicant's Venezuelan nationality and that Venezuela was the receiving country. Based on the evidence presented, the Tribunal concluded that the applicant was a person in respect of whom Australia had protection obligations under the *Refugee Convention*.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfied the criterion set out in section 36(2)(a) of the *Migration Act*.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The relevant criteria for a protection visa are outlined in the Appendix.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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? 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?

Decision

Reasons for decision

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.Gabrielle CullenMemberATTACHMENT - Criteria for a protection visaThe 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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.