1906390 (Refugee)

This matter concerned an application for a protection visa by a Venezuelan national. The applicant claimed that he feared persecution upon return to Venezuela due to his opposition to the Maduro government, his lack of a "Homeland Card" which prevented access to essential services, and threats from his pro-government union. The delegate had previously found that the applicant did not have a political profile and would not suffer serious harm on return.

The 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 as a necessary and foreseeable consequence of removal. This involved determining whether the applicant had a well-founded fear of persecution for reasons of political opinion or membership of a particular social group, and whether such persecution would involve serious harm.

The Tribunal considered extensive country information regarding the severe humanitarian crisis in Venezuela, including widespread human rights abuses, extrajudicial executions, torture, and repression of dissent by the Maduro government. It also noted reports of returning Venezuelans being stigmatised, criminalised, and subjected to cruel and degrading treatment, particularly in the context of the COVID-19 pandemic. The Tribunal accepted that the applicant, as a returnee, would face threats to his liberty, significant physical ill-treatment, and denial of access to basic services that would threaten his capacity to subsist. It found that this harm was systematic, discriminatory, and that there was no effective state protection available. Consequently, the Tribunal was satisfied that the applicant had a well-founded fear of persecution as a "returnee to Venezuela," which constituted membership of a particular social group, and that this fear was for reasons that were essential and significant.

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