1911230 (Refugee)

1911230 (Refugee) [2024] AATA 4446 (11 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Susan Elizabeth Murphy (MARN: 1687696)
CASE NUMBER:  1911230
COUNTRY OF REFERENCE:                   Venezuela
MEMBER:Gabrielle Simm
DATE:11 October 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first, second and third named applicants satisfy s 36(2)(a) of the Migration Act; and
(ii)that the fourth and fifth named applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 11 October 2024 at 11:03am
CATCHWORDS
REFUGEE – protection visa – Venezuela – political opinion – anti-government and anti-corruption opinions – participation in protests and social media activities – robbery, bribery, threats and attempted kidnapping by pro-government paramilitary groups – forced to resign from state-owned corporation job – appearance in mainstream media after activities in Australia – spontaneous and detailed evidence, despite some incoherence because of distress – activities in Australia not for purpose of strengthening claim – deepening economic and social conditions – effective state protection not available, and modification of behaviour not required – passports and visas for another country now expired – older child now not member of family unit and claims considered separately – members of family unit younger children – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), (2), (3)(c)(iii), (4)(b), (5), (6), 5LA(1), 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), rr 1.05(2), 1.12(4)(b)
CASE
1919942 (Refugee), AATA, 3 August 2023
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 dependants.

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 Home Affairs on 8 April 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Venezuela applied for the visas on 14 September 2017. The delegate refused to grant the visas on the basis that the applicants were not targeted for serious harm due to their political opinion so they were not refugees. Further, they were not eligible for complementary protection as harm arising from random criminal violence does not meet the intentionality requirement of significant harm.
The applicants appeared before the Tribunal on 12 August 2024 and 9 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
The applicants were represented in relation to the review.
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 (Cth) (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, he or she 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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of Nationality
The applicants have given consistent evidence that they are citizens of Venezuela and provided copies of their Venezuelan passports to the Tribunal and to the Department. The Tribunal finds that the applicants are Venezuelan citizens and has assessed their claims against Venezuela as country of nationality and the receiving country.
Applicants’ backgrounds
[The first applicant] is a [Age]-year-old woman born in [City 1], Venezuela. She identifies as being of Latino ethnicity and a Christian. Based on documentary, oral and written evidence, the Tribunal accepts the following matters to be true:
a.[The first applicant]’s mother lives in Caracas and manages the [shop] owned by her daughter and son-in-law. [The first applicant] is in contact with her about once a week, depending on whether electricity and telecommunications are functioning in Caracas. Her father passed away in November 2018.
b.[The first applicant] is the eldest of three children. She has two brothers, [Mr A], born [Date], and [Mr B], born [Date]. [Mr A] lives in [Country 1] and he and his sister are in touch on special occasions such as birthdays. [Mr B] lives with their mother in Caracas and sometimes speaks with his sister when she calls their mother.
c.Her son, [the third applicant] was born on [Date]. When he was around one year old, [the first applicant] separated from his father and they later divorced.
d.After completing the equivalent of year 12, [the first applicant] completed a Bachelor of [Subject 1] in 2002. She then started a Masters in [Subject 2] at [University 1] but did not complete it.
e.On 17 March 2008 she married [the second applicant]. They have two sons: [the fourth applicant], born [Date] and [the fifth applicant], born [Date].
f.She is [an occupation 1]. From July 2006 until July 2008 she was [job position] at [Employer 1]. From November 2005-July 2006 she was [job position] at [Employer 2]. From July 2008 -February 2011, she was the [higher job position] at [Employer 3].
g.From February until August 2011 she was unemployed and lived on her savings. From August 2011 until her departure for Australia in October 2016, she and her husband ran a [shop] in Caracas.
h.[The first applicant] has undertaken trips abroad including for work to [Country 2] (2007), [Country 3] (2010), [Country 4] (2015) and [Country 5] (2016) and holidays to [Country 2] (2012, 2013, 2015), [Country 6] (2012), [Country 7] (2014, twice; 2016), [Country 4] (2015), and [Country 8] (2015).
i.She and her family arrived in Australia [in] October 2016, apart from her son [the third applicant] who had arrived [in] September 2016.
j.Since arriving in Australia, she has done a range of work, including in [work sectors], and assisting her husband in his business. She has also been studying English and has obtained a Diploma of [Subject 3].
[The second applicant] is a [Age]-year-old man from [City 2] , Venezeula. He identifies as being of Latino ethnicity and a Christian. Based on documentary, oral and written evidence, the Tribunal accepts the following matters to be true:
a.His mother is retired and lives in [Location]. His father has passed away.
b.He has one sister who is [an occupation 2]. She lives in [Country 5] with her husband. He has two brothers, [Mr C], who is a lawyer and another who is [an occupation 3]. Both live in [Location].
c.He started a Bachelor degree in [Subject 4] at [University 2] in [City 3] in [Year] from which he withdrew in [Year].
d.He worked as [an occupation 4] at [a workplace 1] November 2009-August 2011, as the manager in a [workplace 2] 2006-2009 and as a [workplace 3] manager 2000-2006.
e.He managed the [shop] with his wife from August 2011 until his departure for Australia in October 2016.
f.Since arriving in Australia in December 2016, he has worked as [occupations] and started his own business part time. He then resigned from his other job and has worked in his business full time since 2021.
[The third applicant] is a [Age]-year-old man from Caracas, Venezuela. He identifies as being of Latino ethnicity and a Christian. Based on documentary, oral and written evidence, and that of [Ms D], the Tribunal accepts the following matters to be true:
a.His mother and father separated when he was about one year old. They later divorced. He last had contact with his biological father in 2018 via social media. His father was in Caracas at the time.
b.He attended three years of primary school in [City 1] then moved to Caracas when he was about [Age] years old. He completed high school in Caracas.
c.He worked in customer service in the [shop] run by his parents from 2012 until 2015.
d.He started a Bachelor of [Subject 5] degree at [University 3] in February 2014, from which he withdrew in August 2016.
e.He arrived in Sydney on a student visa [in] September 2016. He studied general English at a private college.
f.In Australia he worked as [occupations]. In 2019 he got his certificate to work as [an occupation 5] but, due to covid-19 lockdowns, he did not find work in the industry until 2021. He also helped [the second applicant] with his [business] during lockdown in 2020-21.
g.He and [Ms D], an Australian citizen, met in August 2022. They have been in a committed relationship since December 2022 and started living together in April 2023. They share finances, visit each other’s families, go on holidays together and provide emotional support to each other.
[The fourth applicant] is aged [Age] and [the fifth applicant] is aged [Age]. They rely on the claims of their mother.
Member of the same family unit
[The fourth and fifth applicants] are members of the same family unit as their mother within the definition of s5(1) of the Act as they are dependent children.[1]
[1] Migration Regulations 1994, Reg. 1.12, s4(b); Reg.1.05, s(2).
The Tribunal invited submissions on whether [the third applicant] was a member of the same family unit as his mother. In April 2019 the delegate assessed him as being dependent on her because at that time, he was [Age] years old, had only worked in the family business in Venezuela and was not always paid, and had undertaken some casual work in Australia but was not financially independent of his parents. However, he is now [Age] years old, works as [an occupation 5], is financially independent of his parents and lives with his de facto partner in her house.
The applicants’ representative provided submissions on his own claims independent of those of his mother. As a result of my findings on those claims, the issue of same family unit is no longer relevant to him.
Claims
When they applied for protection in September 2017, [the first applicant] presented as the main applicant with the other applicants adopting her claims. However, due to the finding that [the third applicant] is not a member of the same family unit as his mother, his claims are considered separately. In addition, at hearing [the second applicant] made claims in his own right. [The fourth and fifth applicants] continue to rely on their mother’s claims for protection.
In summary, [the first applicant] claims that she cannot return to Venezuela due to her anti-government political opinion expressed in social media and participating in person in protests in Venezuela and Australia. In Venezuela, she claims that she and her family were targeted by Colectivos, pro-government forces that have been described as being paramilitaries and parapolice, and that she fears being jailed, tortured and killed. Government authorities, such as those at the airport and the police, are corrupt and will not protect them. She and her family cannot be safe anywhere in Venezuela. Since arriving in Australia, she and her family have continued to express their anti-government opinion through social media postings and participating in protests in Melbourne. Following the July 2024 election, the situation in Venezuela has deteriorated markedly for opponents of President Maduro. If returned to Venezuela now, the applicants would be at greater risk than when they left the country.
[The first applicant] set out her claims in her protection visa application and a statutory declaration dated 20 September 2017 provided to the Department. In her statement she declares that she was forced to resign in 2011 from her job as [higher job position] at [Employer 3], the government owned [corporation], due to her anti-government and anti-corruption stance. She claims that the [shop] she ran with her husband was broken into by Colectivos in November 2015. The perpetrators stole a computer and her son’s mobile phone and threatened to kill him. The police did not attend and [the second applicant] later paid a bribe to the perpetrators. Nevertheless, two days after the bribe was paid, her son was the target of an attempted kidnapping. She also claims to have received threats on [Social media 1] following anti-government postings online 2014 – 2016 and to have been targeted on three occasions by Colectivos on motorbikes while driving her car in late 2015.
At the review stage, the applicants’ representative provided a detailed submission dated 24 June 2024. In addition to legal argument supported by references to country information, copies of [the first applicant]’s posts to [Social media 1] accompanied by a certified translation into English; photos of the applicants protesting against the Venezuelan government in Australia; media reports on Venezuelan politics; reports from a psychologist, a mental health nurse at [Hospital] and her pastoral counsellor on [the first applicant’s] mental health; and three letters of support, two from friends in Australia dated June 2024 and one from a former colleague in [Country 2] dated April 2019.
At the first hearing, [the first applicant] expanded upon her claims, summarised where relevant as follows. If returned to Venezuela, she and her family were at risk because of her political views. They would likely be detained at the airport because they had been abroad for over seven years, which would trigger further investigation. The authorities would check her social media accounts and could take retaliatory measures against her or her family. When the Tribunal suggested that some of her social media posts were a long time ago, she responded that the government could call her a traitor to the country and make an example of her to terrorise the population. She was not a high-profile person like a politician and was just an ordinary person but this meant that she could be kidnapped using arrest as a cover, as had occurred to a Spanish citizen recently. They could also kidnap or kill her husband and sons, put them in jail and make them disappear.
Further, [the first applicant] felt a responsibility to express her political opinion on social media to protest against a regime that had destroyed her country. She posted on [Social media 1], and had used [Social media 2 and 3] in the past. A few years ago, she decided to distance herself from politics to protect her mental health and had stopped posting, but in the leadup to and following the 2024 elections, she became active again. The Tribunal noted that some of the posts could be construed as critical of the government, whereas a political aspect was less evident in others relating to traffic jams or queues in supermarkets. She responded that the government was responsible for traffic jams by setting up checkpoints for trucks that had no purpose apart from showing the population how powerful they were and to stress drivers. The postings about supermarket queues aimed to highlight the lack of food and how the regime was destroying the country.
At the first hearing, [the first applicant] gave evidence about the three occasions when she was approached by motorcyclists who attempted to intimidate her when she was driving. She stated that she recognised them as Colectivos based on the clothes they were wearing and the symbols they wore. The first time they approached her, they were wearing khaki. They were wearing a militia uniform provided by the regime when they perform public acts. She referred to the eyes of Chavez and a red star like in the Cuban flag by which the Colectivos are recognisable by Venezuelans. She said that Colectivos were also recognisable by the slang they used, although as they were riding motorbikes and she was driving, she did not hear them speak.
[The first applicant] gave evidence that she and her family had also participated in protests against the government of Venezuela since arriving in Australia. One of the protests was to thank Australia for being on the right side by opposing the Venezuelan government. At another protest at [Venue] in 2017 or 2018, someone had called her a ‘fascist’. The government might be monitoring demonstrations in Melbourne, for example, by sending people from the Venezuelan Embassy in Canberra. The photos she provided had been on the [News source 1] website and might have been elsewhere online. She had posted one on social media of her family at a protest with [the fourth applicant] holding a placard. They had also participated in the plebiscite against Maduro in 2017, which had been organised by the Opposition as the Constitution provided for the right to remove the President if sufficient votes were obtained. The plebiscite was an opportunity to express their wish for the government to leave power and not retain control of the national assembly.

At the first hearing, [the second applicant] provided context for the claims made by his wife and articulated his own claims for the first time. He stated that the level of risk to the family had increased since 2016 when they left, not just because of what his wife had posted in 2016, but due to what she was posting in 2024. In addition, the severity of harm had increased. He showed the Tribunal a recent video of a protest in Caracas where the police force was standing facing the protestors, 20-30 in a line with more at the back. The Colectivos started shooting at the demonstrators. The police left the scene so the protestors ran away. He claimed that this indicated that the police were abdicating control to the Colectivos and that people were more afraid of the Colectivos than they were of the police.
[The second applicant] gave evidence on how he recognised the perpetrators in the [shop] robbery and the attempted kidnapping as Colectivos. Following the [shop], he paid a bribe to a 22 year old man to keep his family safe. The man was wearing a red shirt but he did not remember whether it had a flag or a red star. The man said ‘calladito es mas bonito,’ a phrase which means, ‘keep your mouth shut’. Another phrase the Colectivos use is ‘Traidor a la patria, vende patria, meaning ‘traitor to the country, sells out the country’.
After the attempted kidnapping of [the third applicant] in the mall, [the second applicant] received a call from his mobile phone number, although he was with him at the time, so he realised something was wrong. He approached the National Guard, who had machine guns, for help. He observed six Colectivos, five men and one woman. Some of them were wearing red and some were on motorbikes. The National Guard recognised them as Colectivos as the National Guard and the Colectivos worked together. By paying the National Guard on this occasion, he was able to use them to provide security for the family on this occasion, while realising this was not a permanent solution.
[The second applicant] claimed to be at risk not just as his wife’s husband but as an opponent of the government who would not stop protesting against it. Even though he did not use social media, all his family and friends were opponents of the government. His brother [Mr C] was a lawyer who represented ordinary people who were political prisoners due to their opposition to the government. Both his brothers tried to keep a low profile and reduce their risk by painting the walls of their house red and keeping a photo of former President Hugo Chavez at home. Currently every lawyer and their family members in Venezuela were at risk but [Mr C] had not experienced any problems with the government so far. He had tried to reduce the risk to [Mr C] in the lead up to and following the 2024 elections by not contacting him. When asked why he had not mentioned his brother’s role in representing government opponents before, he responded that he had not been aware of it.
At the second hearing, [the first applicant] gave evidence that the timing of the incidents made her think that the people behind the [shop] robbery and the intimidation by motorcyclists while she was driving were Colectivos. These incidents occurred immediately after she received the threats via social media warning her to keep quiet about her political opinion. After the July 2024 election in Venezuela, her fears for herself and her family had heightened. Colectivos were in the streets checking people’s phones to monitor their social media postings. If they found any anti-government posts, they would take them to jail immediately. There were about 200 people in jail for opposing the government. Unfortunately, the Colectivos had more authority than the official authorities.
[The first applicant] identified arriving at the airport in Venezuela as the time when she and her family would be at highest risk. The day before the second hearing, the Opposition Presidential candidate, Edmundo González Urratia, had been granted asylum in Spain, but he was protected to some extent by his high political profile. Lower profile people were at the mercy of the dictatorship. She did not trust anyone in the Venezuelan government. For example, she and her husband had not renewed [the fifth applicant]’s passport when it expired, even though it is his only form of identification and the photo is of him as a baby, because the people in the Venezuelan Embassy in Canberra could be spies and could not be trusted.
At the second hearing, [the second applicant] compared how people recognise tradespeople in Melbourne through their hi-vis clothes with how people recognise Colectivos in Venezuela through their clothing. This had been the case for 25 years. Government supporters were rewarded when they pointed out government opponents. The Colectivos worked together with the police. Police drove their cars over the heads of protestors for having participated in demonstrations against the government and 20 or 30 police officers were shown grabbing, kicking and punishing a woman just because she was protesting. He and his family were at imminent risk because their views differed from those of the regime, including the national guard, the police and the Colectivos.
[The first and second applicants] gave evidence about what life would be like for their sons, [the fourth and fifth applicants], if they had to return to Venezuela now. [The first applicant] claimed that her sons’ lives were in Australia. [The fifth applicant] had arrived in Australia at the age of [Age] so he didn’t remember anything about Venezuela, English was his first language and his friends, school and church were in Australia. Their sons would love to see their grandmother in Venezuela but their life was in Australia. She could not imagine the impact of returning on them. [The second applicant] claimed that their sons would be at imminent risk if returned to Venezuela. As they spoke English, they could be identified as imperialist. The government was targeting people who came from the US or any country that was against it. People who supported the government felt that they had a responsibility to let the government know who opposed them.
[The third applicant] was included as a dependent in his mother’s protection visa application. However, the Tribunal notes that two of her key claims related to [the third applicant]. They are: first, the [shop] robbery where the Colectivos threatened to kill him, and second, the incident in the mall a few days later when a child attempted to lure him away to facilitate his kidnapping by Colectivos.
Before the first hearing, the applicants’ representative provided a submission to the Tribunal, including a statutory declaration by [the third applicant] dated 19 June 2024. In it, he reiterated the claims made by his mother in her application and elaborated on his own claims. In describing the robbery of the [shop] in 2015, he stated that he knew that the men who held him at gunpoint were Colectivos
because they wore distinct red t-shirts and hats with the Venezuelan flag. They also called me names like “maldito escuálido” (which means “scrawny” but here it’s used as an insult for opposition members of the government) and “maldito apátrida.” (damned stateless person). …
He stated that the man who held him at gunpoint said
“hasta la Victoria siempre” (a famous revolutionary slogan meaning “until victory, always) when leaving, which was terrifying as it reinforced their determination to intimidate us into no longer speaking out against the government.
He described his political activities as having attended protests multiple times in Venezuela and signing against Maduro in the 2017 plebiscite while in Australia. He claimed that he would not be able to hide his contempt and disgust with the government if forced to return. Having lived in Australia, his family would be prime targets for extortion by Colectivos. His younger brothers especially would be targets for kidnapping as he had been targeted. Further, the Venezuelan government restricted access to essential services for political dissidents. Community informants and surveillance were used to identify and monitor government opponents. He referred to the impact on the mental health of everyone in the family, particularly his mother’s; his concerns about the safety and wellbeing of family members if they were forced to return to Venezuela, in which he outlined his concerns particularly for his younger brothers; and his relationship with his partner [Ms D].
At hearing, [the third applicant] gave evidence that he worried that, if he had to return to Venezuela, the government or Colectivos would find out his family was not affiliated with the government. The family could face jail, torture, or death as a result. He would be at risk for the following reasons:
·As someone returning from abroad, he would be assumed to be wealthy. Returning by plane, he would be forced to pass through government controls at the airport and government officials would see that he had been living in Australia. This would prompt them to inquire about his political views. Not being affiliated with the government was already a problem. If he were interviewed by officials at the airport, he would not hide his views. Arriving at the airport would also facilitate the government arresting and detaining him if they wanted to.
·He shared a family name with his mother so it would not be hard for government officials or Colectivos to ‘connect the dots’ to mother’s anti-government social media posts. Often they adopted a strategy of harming family members in order to silence a critic.
·The government might find out about his political activism in Venezuela. He had protested at every single opportunity when he was at university in Venezuela. When asked whether he would protest if he had to return to Venezuela, even though he had not been to many protests in Australia, he claimed that he would. In Venezuela, it was more immediately relevant and it was about physically voicing his opinion against the government.
·The government might find out about his political activism in Australia. He had participated in the plebiscite in 2017 to sign against the government which had been organised by the leader of the opposition at the time. A photo of him signing the plebiscite was provided. The plebiscite aimed to draw international attention to what was happening in Venezuela. He was 21 at the time and did not know much about politics in Venezuela or understand the plebiscite. He sometimes tried to stay up to date with politics in Venezuela but sometimes found it too depressing so he would dip in and out.
·He had reduced his social media postings revealing his political opinion while in Australia. He had stopped posting his political views on [Social media 2 and 3] media in Australia since covid. When asked whether he would post on social media if he had to return to Venezuela, he replied that it was necessary to voice his opinion.
·The stress of his past experiences, combined with the uncertainty and worry about the future, had negatively affected his mental health. The incident where Colectivos had robbed the [shop] when he was alone there made him paranoid long afterwards. He was always checking to make sure he had locked the door, looking over his shoulder and trying not to make a mistake that would lead to his family being harmed.
·As the oldest son, he tried to keep his emotions under control but he was concerned for other family members too. He worried about his mother and tried to seem like he was OK even though he was terrified. He also worried about his two younger brothers and would hate for them to have to go through the sort of things he went through when he was younger in Venezuela. At the same time he thought it was good to belong to a family who stood up for their beliefs.
[The third applicant]’s partner, [Ms D], gave evidence at the first hearing confirming her statutory declaration dated 19 June 2024 provided to the Tribunal before the first hearing. Based on her oral and written evidence, the Tribunal accepts the following matters to be true:
·[Ms D] met [the third applicant] in August 2022. They have been in a committed relationship since December 2022.
·In April 2023 [the third applicant] moved into her house and in January 2024 he terminated the lease on his own apartment.
·They spend as much time as possible together. In November 2023 they got a dog together as a symbol of their commitment to building a life together.
·The uncertainty over her partner’s visa status has exacerbated her pre-existing anxiety, depression and sleep issues. She also worries about his family, including his little brothers. The hearing has escalated her stress levels and she and her partner have put a plan to study on hold in order to prepare for the review.
·If her partner is forced to return to Venezuela, [Ms D] does not want to be separated from him. However, she fears for her safety in Venezuela, given the Australian government’s ‘do not travel’ advice to Australian citizens and the fact that she does not speak Spanish.
The Tribunal found [Ms D] to be a credible witness, whose oral evidence was consistent with her written statement. She provided a frank and spontaneous account from her perspective that corroborated [the third applicant]’s evidence.
On 4 September 2024, the Tribunal received a submission from the applicants’ representative (the second submission). The submission stated that [the third applicant]’s evidence at hearing that he had stopped posting on social media was ‘not quite right’ and provided examples of several of [the third applicant]’s posts on social media. They included several posts mocking the Venezuelan government in 2020- 2021; reference to his participation in the 2017 plebiscite against Maduro, a photo of which is still posted to his [Social media 2] page; and his participation on 17 August 2024 in demonstrations in Melbourne against the government. She also provided details of the political protests in which he participated in Venezuela in 2014.
FINDINGS AND REASONS
Findings on [the first applicant’s] past experiences
The Tribunal accepts [the first applicant]’s claims that she expressed her anti-government opinion on social media in Venezuela. I accept that in November 2015 she was targeted in three incidents by Colectivos driving motorbikes in an attempt to intimidate and silence her. I accept that the [shop] owned by her and [the second applicant] was robbed by Colectivos who threatened to kill [the third applicant], the only person present, and stole his laptop and mobile phone. I accept that [the first applicant’s] political opinion may have been one of the reasons she was forced to resign from her job as [higher job position] at [the state-owned company]. I accept that she has participated in protests against the government of Venezuela since arriving in Australia, including the Opposition-organised plebiscite on 16 July 2017 and numerous other protests, including in the leadup to, and following the contested outcome of, the July 2024 presidential election.
[The first applicant]’s claims have been consistent across her protection visa application, her interview with the Minister’s delegate, and her written and oral evidence before the Tribunal. Her oral evidence was detailed and spontaneous. Her evidence on identifying the Colectivos was not always coherent as her distress on speaking about these issues sometimes hampered communication. However, the evidence provided by other family members and the country information supported her claim that she and her family were targeted as a result of her political opinion rather than being the victims of random criminal attacks.
Assessment of [the first applicant’s] Refugee Claims:
Sur place claims
Section 5J(6) of the Act provides that in determining whether the applicants have a well founded fear of persecution, any conduct they engaged in in Australia is to be disregarded unless they engaged in the conduct otherwise than for the purpose of strengthening their claim to be a refugee.
Since arriving in Australia, [the first applicant] has attended demonstrations against the Venezuelan government; participated in the 2017 plebiscite organised by the Opposition; and have made social media posting demonstrating anti-government political opinion. The Tribunal received a letter dated 2 August 2024 from [the first applicant] addressed to her representative expressing her disappointment at the contested election result and her determination to continue to keep posting against the Maduro regime, along with an article from Al Jazeera analysing the election result dated 1 August 2024. Most recently, the applicants participated in the 17 August 2024 demonstration protesting against the government’s crackdown against demonstrators in Venezuela following the contested election result. The timing of this activism might raise a question about whether it was undertaken to strengthen their claims to be refugees.
Having carefully considered the evidence taken as a whole and in context, the Tribunal finds that [the first applicant's] activism was undertaken as a manifestation of her anti-government political opinion, evidenced before she arrived in Australia. Her continued political activism has been in response to events in Venezuela. Her participation in the 17 August 2024 demonstration in Melbourne is a response to the Venezuelan presidential elections held on 28 July 2024, the announcement that Maduro had won the election, and the ensuing demonstrations and crackdowns by the government. Hence the Tribunal is satisfied that this conduct was not undertaken to strengthen her refugee claims and should be taken into account.
Real chance of serious harm
[The first and second applicants] have articulated a fear of arrest, detention, and death for themselves and for their children. This clearly amounts to serious harm within s5J(5) of the Act, which provides ‘a threat to the person’s life or liberty’ or ‘significant physical ill-treatment of the person’ as indicative examples.[2] The serious harm identified would meet the requirement of s5J(4)(b) of the Act.
[2] Section 5J(5)(a) and (c) respectively.
Under s5J(1)(b) the applicants have a well founded fear of persecution if there is a real chance that, if they returned to Venezuela, they would be persecuted for a refugee reason.
The country information on Venezuela strongly supports the applicants’ claims that they face a real chance of serious harm if returned to Venezuela. Since Nicolás Maduro took over as President from Hugo Chávez in 2013, the plummeting price of oil has meant that the party’s populist policies have been unable to be funded.[3] The result has been a deepening social, economic and humanitarian crisis. According to UNHCR, 7.7 million Venezuelans had left their country as at the end of 2023.[4] Maduro’s reign has become increasingly authoritarian, demonising his political opponents and reducing the space for civil society and political debate.[5] The Tribunal also refers to the country information contained in AAT decision 1919942, much of which remains current.[6]
[3] Diana Roy and Amelia Cheatham, Venezuela: The Rise and Fall of a Petrostate | Council on Foreign Relations (cfr.org), 31 July 2024.
[4] Venezuela situation | Global Focus (unhcr.org)
[5] John Polga-Hecimovich and Raúl Sánchez Urribarrí, ‘Political survival and. . . authoritarian consolidation? The Maduro Government and Venezuela’s Political Crisis’ (2024) 58 Pensamiento Propio 17–49.
[6] AAT Case no 1919942, 3 August 2023, Member Kate Chapple, [14]-[21].
At the same time, his government has fostered the growth of non-state actors to extend the reach of the state. An example of these are the Colectivos, which received training, funding and arms from the state beginning in the 2000s.[7] Chávez and then Maduro used them to impose social and political control on communities and to repress the political opposition.[8] Variously described as para-police or para-military forces, they have evolved over time from community collectives with their roots in 1960s guerrilla movements, through less autonomous groups supporting Chávez in 2007-12, to a ‘“repressive” police initiative’ since 2014, ‘dressing as civilians and riding in motorcycle groups.’[9]
[7] El-ascenso-del-Estado-criminal-hibrido-en-Venezuela-InSight-Crime-1.pdf (insightcrime.org), 16-17.
[8] Ibid.
[9] Alejandro Velasco, From ‘Grupos de Trabajo’ to ‘Colectivos’: The Evolution of Armed Pro-Government Groups in the Chávez Era’ (2022) 31(2) Espacio Abierto, cited in ‘Venezuela: Pro-government groups (also known as colectivos)’, VEN200954, Responses to Information Requests - Immigration and Refugee Board of Canada (irb-cisr.gc.ca), 7 February 2023.

Following the presidential election on 28 July 2024, the risk of harm to opposition supporters has increased. The government claimed victory at midnight on 28 July but without providing evidence in the form of tally sheets from each voting station. Based on reports from its observers who took photos of tally sheets at 90% of voting stations, the Opposition won the election.[10] On 29 July, spontaneous demonstrations against the government broke out which the security forces and Colectivos used force to restrain.[11] The government claimed that it had arrested over 2400 protestors.[12] A UN Human Rights Council-mandated inquiry found that 25 people had died and hundreds were detained or injured in the brutal repression of protests, describing it as ‘one of the most acute human rights crises in the country’s recent history.’[13]
[10] Regina Garcia Cano, ‘Human Rights Group implicates Venezuelan security forces in killings during post-election protests’ Washington Post, 4 September 2024.
[11] Phil Gunson, ‘Venezuela: What Next after its Election Uproar?’ Crisis Group, 2 August 2024.
[12] Venezuela: Brutal Crackdown on Protesters, Voters | Human Rights Watch (hrw.org).
[13] Report of the Independent International Fact-finding mission of the Bolivarian Republic of Venezuela, UN Doc A/HRC/57/57, 17 September 2024, [28].
The country information suggests that the Supreme Court and the National Electoral Commission lack independence and rarely find against the executive branch of government.[14] Government control also extends to media outlets, so social media provides a rare opportunity for Venezuelans to express their opinions.[15] In this context, social media activism is more significant than it might be elsewhere where there are greater opportunities for political activism. As a result, the government monitors social media and uses digital means to control citizens.[16] Following the recent election, the National Police Force initiated a campaign known as Operation Tun Tun, or ‘Operation Knock Knock’, encouraging Venezuelans to report on fellow citizens who challenge the government’s claim to victory, including in their social media profiles. Some of them received a knock at the door from police, who arrested and detailed them.[17] This campaign extends the government’s reach by enlisting private citizens who support the government.
[14] ‘Venezuela’s Supreme Court, a tribunal that dispenses justice tailored to Nicolás Maduro’s needs | International | EL PAÍS English (elpais.com), 23 August 2024,
[15] John Otis, In Venezuela, restrictions and self-censorship limit coverage of opposition ahead of election - Committee to Protect Journalists (cpj.org) 18 July 2024.
[16] Ángela Alarcón, ‘Venezuela’s many means of surveillance and control’ - Access Now, 29 August 2024; Memes, Threats, and Snitching Apps: Maduro’s Weaponized Social Media | Caracas Chronicles, 5 August 2024.
[17] Venezuela security forces swoop on activists as repression worsens (bbc.com), 9 August 2024.
In relation to future risk, the Tribunal has considered [the first applicant's] evidence that her mother, who is managing the [shop] in Caracas, had not been contacted by Colectivos when they last spoke. It might be thought that this indicates that the chance of serious harm to the applicants if they returned to Venezuela would be less than a real chance. However, a single elderly woman running a [shop] is less likely to be seen as a threat to the government than a family including three adults, at least two of whom have social media profiles that mark them as government opponents and who have previously been targeted for intimidation. Their profile would also be higher after returning from an English-speaking country after 7 years away with children who speak English. After carefully considering this evidence, in the context of the evidence taken as a whole and in light of the country information, the Tribunal considers that the fact that [the first applicant’s] mother has not been contacted by government supporters to date does not reduce the risk of harm to the applicants below the threshold of a real chance.
The Tribunal accepts that there is a real chance that, if [the first applicant] returned to Venezuela, she would be persecuted for a refugee reason now or in the foreseeable future.
Reason for the feared harm
If a person fears persecution for one or more of the reasons mentioned in s5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason for the persecution: s5J(4)(a).
The delegate accepted that the [shop] robbery occurred and that [the first applicant] had been targeted by motorcyclists on three occasions while driving. However, she did not accept that these incidents were related to the applicants’ political opinion; instead, she attributed them to crime. The Tribunal focussed much of its questioning on ascertaining the identity and motives of the perpetrators in these incidents. Each of the applicants independently provided detailed and specific evidence on the dress, speech and behaviour of the perpetrators and the context of the incidents. Their evidence was consistent with each other’s evidence and correlates with the country information on Colectivos. The Tribunal accepts that the harm feared by the applicants is for the reason of their political opinion which is against the Maduro government.
Further, the country information indicates that opponents of the Maduro government are systematically targeted for that reason. In addition to their targeting by Colectivos, before the Department, the applicants referred to how the Carnet de la Patria (homeland card) could be used to identify and discriminate against them. Obtaining a card is dependent on providing personal information, including past voting practices, which the Maduro government then uses to target its opponents. While the card is not mandatory, Venezuelan citizens have been denied medical treatment, access to pensions and food rations for not having one.[18] The country information suggests that private businesses are also required to request a carnet de la patria, so that even buying milk is difficult without the card. The data harvested in this way is used systematically to discriminate against opponents of the government.[19] The Tribunal accepts that this conduct is systematic and discriminatory.
[18] Angus Berwick, ‘How ZTE helps Venezuela create China-style social control’ A new Venezuelan ID, created with China's ZTE, tracks citizen behavior (reuters.com) 14 November 2018.
[19] Ibid.
For these reasons, I am satisfied that the harm feared is for a refugee reason, ie political opinion, consistent with s5J(1)(a) of the Act. Further, I am satisfied that political opinion is the essential and significant reason for the persecution consistent with s5J(4)(b).
Real chance in all areas of Venezuela s5J(1)(c)
In assessing whether [the first applicant’s] real chance of being persecuted extends to all areas of Venezuela, the Tribunal has considered evidence that Caracas is the safest place in Venezuela due to the higher population density. She claimed that government authorities and non-state actors such as the Colectivos exert firmer control in areas outside the capital where opposition to the government is more obvious. Nevertheless, as noted in Tribunal’s findings on the applicants’ past experiences, they have experienced harm, including robbery, threats to life, attempted kidnapping, and potentially life-threatening encounters with motorcyclists in Caracas. Current media reporting on the situation in Venezuela discussed above, as well as the sources referred to in submissions from the applicants’ representative and the video shown by [the second applicant] during the hearing, demonstrate that Caracas is far from safe for government opponents.
The Tribunal accepts that a real chance of harm exists wherever [the first applicant] lives in Venezuela.
Effective State Protection s5J(2)
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if the State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, is willing and able to offer such protection.
The threat to the applicants emanates from the state and its organs. These include government agents, such as the police and national guard, and non-state actors, such as the pro-government Colectivos. As discussed above, the country information indicates that government opponents are systematically targeted. Further, there is no party or organisation controlling the State or part of its territory to provide protection as an alternative to the State.
The Tribunal finds that effective protection is not available to [the first applicant] in Venezuela.
Behaviour modification
Under s5J(3) of the Act, a person does not have a well-founded fear of persecution if she could take reasonable steps to modify her behaviour so as to avoid a real chance of persecution. This is subject to exceptions including a modification that would alter his or her political beliefs or conceal his or her true political beliefs: s5J(3)(c)(iii).
The Tribunal accepts that, even if [the first applicant] could modify her behaviour to reduce her chance of persecution, she is not required to do so in relation to her political beliefs.
Conclusion on [the first applicant’s] refugee claims
For these reasons, the Tribunal accepts that [the first applicant] meets the criteria for a protection visa because she is a refugee.
Findings on [the second applicant]’s past experiences
[The second applicant]’s evidence was detailed, spontaneous and consistent with the accounts of other family members and the country information. I accept his evidence that the robbery of the [shop] and the attempted kidnapping of [the third applicant] were carried out by Colectivos. I accept that he paid bribes to a Colectivo member and to members of the National Guard to keep his family safe. I accept that, although he does not use social media himself, he is associated with his family members who do and that the Venezuelan authorities target family members as part of a strategy to silence their critics.
In relation to his claim made at hearing that his brother [Mr C] is a lawyer who represents people opposed to the government, I have considered whether I should draw an adverse inference to the credibility of this claim as it was not before the primary decision-maker. However, I accept [the second applicant]'s explanation for not doing so, namely, that he was not aware of it, as reasonable in a context where he limits his contact with [Mr C] to reduce the risk of harm to him.
Assessment of [the second applicant]’s Refugee Claims:
Sur place claims
Section 5J(6) of the Act provides that in determining whether the applicants have a well founded fear of persecution, any conduct they engaged in in Australia is to be disregarded unless they engaged in the conduct otherwise than for the purpose of strengthening their claim to be a refugee.
Since arriving in Australia, [the second applicant] has attended demonstrations against the Venezuelan government; participated in the 2017 plebiscite organised by the Opposition; and made social media postings demonstrating anti-government political opinion. The applicants’ representative photos and evidence that a photo of a protest on 17 August 2024 in Melbourne showing [the second applicant] has been syndicated to media organisations around the world, including [News source 2] in [Countries]. The timing of this activism might raise a question about whether it was undertaken to strengthen their claims to be refugees.
Having carefully considered the evidence taken as a whole and in context, the Tribunal finds that [the second applicant]’s activism was undertaken in response to events in Venezuela. His participation in the [August] 2024 demonstration in Melbourne is a response to the Venezuelan presidential elections held on 28 July 2024, the announcement that Maduro had won the election, and the ensuing demonstrations and crackdowns by the government. Hence the Tribunal is satisfied that this conduct was not undertaken to strengthen his refugee claims and should be taken into account.
Real chance of serious harm
[The second applicant] has articulated a fear of arrest, detention, and death for himself and his family. This clearly amounts to serious harm within s5J(5) of the Act, which provides ‘a threat to the person’s life or liberty’ or ‘significant physical ill-treatment of the person’ as indicative examples.[20] The serious harm identified would meet the requirement of s5J(4)(b) of the Act.
[20] Section 5J(5)(a) and (c) respectively.
Under s5J(1)(b) the applicants have a well founded fear of persecution if there is a real chance that, if they returned to Venezuela, they would be persecuted for a refugee reason.
The country information on Venezuela discussed above at [50]-[53] strongly supports [the second applicant]’s claims that he faces a real chance of serious harm if returned to Venezuela. This risk arises from his participation in anti-government activity in Australia manifesting actual political opinion as well as from his wife’s current and former social media postings, from which anti-government political opinion may be imputed; his interactions with Colectivos and National Guard to negotiate protection for his family; and his profile as a Venezuelan assumed to be wealthy and therefore at risk of extortion after living in an English-speaking country for around 8 years, which would trigger further inquiries upon arrival at the airport in Venezuela.
As noted in relation to the findings on [the second applicant]’s past experiences, the Tribunal has declined to draw an adverse inference about his claim that he may be at risk of harm due to his brother [Mr C]’s work as a lawyer in representing government opponents. However, given that [Mr C] has not experienced threats or harm from authorities or non-state actors in Venezuela, the chance of harm to [the second applicant] as a result of his brother’s activities is not more than remote.
The Tribunal accepts that there is a real chance that, if [the second applicant] returned to Venezuela, he would be persecuted for a refugee reason now or in the foreseeable future.
Reason for the feared harm
If a person fears persecution for one or more of the reasons mentioned in s5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason for the persecution: s5J(4)(a).
The delegate accepted that the [shop] robbery occurred and that [the first applicant] had been targeted by motorcyclists on three occasions while driving. However, she did not accept that these incidents were related to the applicants’ political opinion; instead, she attributed them to crime. The Tribunal focussed much of its questioning on ascertaining the identity and motives of the perpetrators in these incidents. Each of the applicants independently provided detailed and specific evidence on the dress, speech and behaviour of the perpetrators and the context of the incidents. Their evidence was consistent with each other’s evidence and correlates with the country information on Colectivos.[21] The Tribunal accepts that the harm feared by the applicants is for the reason of their political opinion which is against the Maduro government.
[21]
Further, the country information indicates that opponents of the Maduro government are systematically targeted for that reason as discussed above at [‎58. The Tribunal accepts that this conduct is systematic and discriminatory.
For these reasons, I am satisfied that the harm feared is for a refugee reason, ie political opinion, consistent with s5J(1)(a) of the Act. Further, I am satisfied that political opinion is the essential and significant reason for the persecution consistent with s5J(4)(b).
Real chance in all areas of Venezuela s5J(1)(c)
In assessing whether the applicants’ real chance of being persecuted extends to all areas of Venezuela, the Tribunal has considered [the first applicant’s] evidence that Caracas is the safest place in Venezuela due to the higher population density. She claimed that government authorities and non-state actors such as the Colectivos exert firmer control in areas outside the capital where opposition to the government is more obvious. Nevertheless, as noted above in the findings, the applicants experienced harm, including robbery, threats to life, attempted kidnapping, and potentially life-threatening encounters with motorcyclists in Caracas. Current media reporting on the situation in Venezuela discussed above, as well as the sources referred to in submissions from the applicants’ representative and the video shown by [the second applicant] during the hearing, demonstrate that Caracas is far from safe for government opponents.
The Tribunal accepts that a real chance of harm exists wherever [the second applicant] lives in Venezuela.
Effective State Protection s5J(2)
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if the State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, is willing and able to offer such protection.
The threat to the applicants emanates from the state and its organs. These include government agents, such as the police and national guard, and non-state actors, such as the pro-government Colectivos. As discussed above, the country information indicates that government opponents are systematically targeted. Further, there is no party or organisation controlling the State or part of its territory to provide protection as an alternative to the State.
The Tribunal finds that effective protection is not available to [the second applicant] in Venezuela.
Behaviour modification
Under s5J(3) of the Act, a person does not have a well-founded fear of persecution if he could take reasonable steps to modify his behaviour so as to avoid a real chance of persecution. This is subject to exceptions including a modification that would alter his political beliefs or conceal his true political beliefs: s5J(3)(c)(iii).
The Tribunal is satisfied that, even if [the second applicant] could modify his behaviour to reduce his chance of persecution, he is not required to do so in relation to his political beliefs.
Findings on [the third applicant]’s past experiences
The Tribunal accepts [the third applicant]’s claims that he has expressed anti-government opinions online and in person in Venezuela and in Australia. I accept that he attended protests against the government when he was a university student in Caracas. I accept that the [shop] owned by his mother and step-father was robbed by Colectivos who threatened to kill him and stole his laptop and mobile phone. I accept that an unsuccessful attempt was made to kidnap him a few days later in a mall opposite the bookstore. I accept that these incidents were not random criminal attacks but were carried out by non-state actors supportive of the government in an attempt to silence his mother and stop her expressing anti-government opinions on social media.
I accept that, since arriving in Australia, [the third applicant] has participated in several protests against the government of Venezuela including the Opposition-organised plebiscite on 16 July 2017. I accept that, since arriving in Australia, he has also made social media postings mocking the Venezuelan government. His answers to the Tribunal’s questions at the first hearing regarding the 2017 plebiscite suggest that he does not have a detailed knowledge of Venezuelan politics. However, his oral evidence on these matters was spontaneous and consistent with his written claims to the Department and the Tribunal.
Assessment of [the third applicant]’s Refugee Claims
Sur place claims

Section 5J(6) of the Act provides that in determining whether the applicants have a well founded fear of persecution, any conduct they engaged in in Australia is to be disregarded unless they engaged in the conduct otherwise than for the purpose of strengthening their claim to be a refugee.
Since arriving in Australia, [the third applicant] has attended demonstrations against the Venezuelan government; participated in the 2017 plebiscite organised by the Opposition; and made social media postings demonstrating anti-government political opinion. For example, during the covid-19 lockdowns in Melbourne in 2020-2021, he posted clips of a comedian satirising the Venezuelan government, as he saw parallels between the authoritarian approach of the Venezuelan government and the Victoria government’s management of the pandemic. The timing of this activism might raise a question about whether it was undertaken to strengthen their claims to be refugees.
Having carefully considered the evidence taken as a whole and in context, the Tribunal finds that [the third applicant]’s activism was undertaken in response to events in Venezuela. In addition, some of his social media postings during Melbourne’s covid-19 lockdowns were motivated by parallels he drew between the Victorian government and the Venezuelan government. Hence the Tribunal is satisfied that this conduct was not undertaken to strengthen his refugee claims and should be taken into account.
Real chance of serious harm
[The third applicant] fears arrest, detention, and death for himself and for his family. This clearly amounts to serious harm within s5J(5) of the Act, which provides ‘a threat to the person’s life or liberty’ or ‘significant physical ill-treatment of the person’ as indicative examples.[22] The serious harm identified would meet the requirement of s5J(4)(b) of the Act.
[22] Section 5J(5)(a) and (c) respectively.
Under s5J(1)(b) [the third applicant] has a well-founded fear of persecution if there is a real chance that, if he returned to Venezuela, he would be persecuted for a refugee reason.
Given his limited participation in anti-government street protests in Venezuela, I do not accept that [the third applicant] would protest in person if returned to Venezuela. However, I accept that if he were to return to Venezuela now or in the foreseeable future, his arrival at the airport after 8 years abroad would trigger inquiries by airport authorities. I accept that his having returned from Australia would raise expectations that he was wealthy, making him a target for extortion attempts from government agents and non-state actors. Based on his past experiences of harm in Venezuela; his association with his mother and her online anti-government social media activism; and his own anti-government postings online since arriving in Australia, I accept that he would be imputed to hold an anti-government political opinion. I accept that he would continue to engage in limited anti-government activism on social media. The country information discussed above at [50] – [53] supports his claim that he would face a real chance of serious harm, from state actors, such as border authorities at the airport and the police, and non-state actors, such as Colectivos.
For these reasons, the Tribunal finds that [the third applicant] would face a real chance of serious harm if returned to Venezuela.
Reason for the feared harm
If a person fears persecution for one or more of the reasons mentioned in s5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason for the persecution: s5J(4)(a).
The country information referenced above at [56]-[58] supports [the third applicant]’s claim that opponents of the Maduro government are targeted for this reason. The Tribunal considers that the harm feared by [the third applicant] is for the reason of his political opinion which is against the Maduro government.

100. The delegate accepted that the [shop] robbery occurred. However, she did not accept that it related to the applicants’ political opinion; instead, she attributed it to random crime. She accepted that an attempt was made to kidnap [the third applicant] at the mall, which she attributed to an opportunistic criminal act. As discussed above at [64], the applicants’ evidence was consistent with each other’s evidence and correlates with the country information on Colectivos.[23] The Tribunal accepts that the harm feared by the applicants is for the reason of their political opinion which is against the Maduro government.
[23]
101. Further, the country information indicates that opponents of the Maduro government are systematically targeted for that reason as discussed above at [‎58. The Tribunal accepts that this conduct is systematic and discriminatory.
102. For these reasons, I am satisfied that the harm feared is for a refugee reason, ie political opinion, consistent with s5J(1)(a) of the Act. Further, I am satisfied that political opinion is the essential and significant reason for the persecution consistent with s5J(4)(b).
Real chance in all areas of Venezuela s5J(1)(c)
103. The analysis above at [60] applies equally to [the third applicant]. The Tribunal accepts that a real chance of harm exists wherever he lives in Venezuela.
Effective State Protection s5J(2)
104. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if the State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, is willing and able to offer such protection.
105. The threat to the applicants emanates from the state and its organs. These include government agents, such as the police and national guard, and non-state actors, such as the pro-government Colectivos. As discussed above, the country information indicates that government opponents are systematically targeted. Further, there is no party or organisation controlling the State or part of its territory to provide protection as an alternative to the State.
106. The Tribunal finds that effective protection is not available to [the third applicant] in Venezuela.
Behaviour modification
107. Under s5J(3) of the Act, a person does not have a well-founded fear of persecution if he could take reasonable steps to modify his behaviour so as to avoid a real chance of persecution. This is subject to exceptions including a modification that would alter his political beliefs or conceal his true political beliefs: s5J(3)(c)(iii).
108. The Tribunal is satisfied that, even if [the third applicant] could modify his behaviour to reduce his chance of persecution, he is not required to do so in relation to his political beliefs.
Conclusion on [the third applicant]’s refugee claims
109. For these reasons, the Tribunal accepts that [the third applicant] faces a well-founded fear of persecution on return to Venezuela for reasons of his imputed (anti-government) political opinion and that he is a refugee.
Third country protection s36(3)
110. Given these findings, the Tribunal has gone on to consider if the applicants have a right to enter and reside in the US and are therefore not owed protection under s36(3) of the Act. This section provides that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia.
111. When they arrived in Australia, the applicants all held [visas] for [Country 9], allowing them to enter temporarily for business and tourism purposes. [The] visa holders are not allowed to study, work or permanently reside in [Country 9]. Since then, their passports and the visas have expired. I accept that the applicants do not have a right to enter or reside in [Country 9].
112. Based on this evidence, the applicants do not have a right to enter and reside in a country other than Venezuela. I accept that s36(3) of the Act does not apply to the applicants.
CONCLUSIONS
113. For the reasons given above the Tribunal is satisfied that [the first named applicant], [the second named applicant] and [the third named applicant] are persons in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a)
114. The Tribunal is satisfied that [the first applicant] and [the second applicant]’s sons [the fourth and fifth applicants] are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that they will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
115. The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first, second and third named applicants satisfy s 36(2)(a) of the Migration Act; and
(ii) that the fourth and fifth named applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Gabrielle Simm
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4446

11 October 2024

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