1836984 (Refugee)

This matter concerned an application for a protection visa by a Venezuelan national. The applicant claimed to have been dismissed from a government job, persecuted by pro-government groups known as 'colectivos', and unable to access essential services due to her opposition to the government and her presence on a 'Tascon list'. She also asserted that the current government controls the justice system, preventing her from seeking redress. The decision was made by Member Lilly Mojsin.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) as a refugee, or alternatively, under section 36(2)(aa) as a person facing significant harm. 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 if effective protection measures were available in Venezuela. The Tribunal also considered the specific risks faced by individuals returning to Venezuela, particularly in the context of the COVID-19 pandemic.

The Tribunal considered extensive country information regarding the severe humanitarian crisis in Venezuela, including widespread human rights violations, extrajudicial executions, forced disappearances, torture, and a crackdown on dissent. Crucially, the Tribunal accepted evidence that returnees to Venezuela were stigmatised, criminalised, and subjected to cruel and degrading treatment by both government authorities and 'colectivos'. It was found that the applicant, as a returnee, would face threats to her liberty, significant physical ill-treatment, and denial of access to basic services, constituting serious harm. The Tribunal concluded that the essential and significant reason for this harm was her membership in the social group of 'returnees to Venezuela', and that this risk was present throughout the country, with no effective state protection available.

Consequently, the Tribunal found that the applicant had a well-founded fear of persecution and was a person in respect of whom Australia had protection obligations under section 36(2)(a) of the Act. The matter was remitted for reconsideration with a direction that the applicant satisfied this criterion.