1916746 (Refugee)

[2024] AATA 4469

1916746 (Refugee) [2024] AATA 4469 (3 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Emma Mulrooney

CASE NUMBER:  1916746

COUNTRY OF REFERENCE:                   Venezuela

MEMBER:Gabrielle Deal

DATE:3 October 2024

PLACE OF DECISION:  Melbourne

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 03 October 2024 at 3:30pm

CATCHWORDS
REFUGEE – protection visa – Venezuela – political opinion – member, campaign worker and university/youth organiser of opposition party – some association with high-profile members – in party headquarters when it was attacked by governing party supporters – detained and mistreated – vague, inconsistent and unsupported claims and evidence – passport and previous travel – business visa for another country lapsed after applicant left employment, and likely to be cancelled on attempted entry – low-level protest activity in Australia, and appearances in mainstream media – delay in applying for protection reasonable – new claim of membership of particular social group made pre-hearing – homosexual man – progressing acceptance of orientation when application made – increasing activities and profile – detailed, consistent and credible evidence – mental health – supporting statements – country information – recent deterioration in conditions – small but real chance of serious harm – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (3)(c)(iii), 36(2)(a), (3), 65
Migration Regulations 1994 (Cth), Schedule 2

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Venezuela, arrived in Australia [in] December 2016. The applicant applied for the protection visa on 1 December 2017.

3. On 14 June 2019 the delegate refused to grant the protection visa. In her decision the delegate noted several issues with the applicant’s evidence and claims, including his delay in seeking a protection visa, variations, a lack of detail, implausibility, and found, among other things, that the applicant had embellished and fabricated claims. The delegate did not accept the applicant genuinely feared for his safety when he left Venezuela in 2016, did not accept the applicant was politically active at university or that he established a student union or the arm of Acción Democrática (AD), or had recruited university students to the AD. The delegate did not accept the applicant was a member of AD or involved with AD, did not accept the applicant was the “[organisational role]” for Monagas State of AD, did not accept he was a press spokesperson for AD, did not accept he was involved in election campaigns, mobilising voters, or in recruiting members. The delegate did not accept the applicant was in the AD headquarters when it was attacked in 2013, or that he was detained by the National Guard after this attack. The delegate did not accept the applicant relocated to Merida to escape harm following this claimed attack. While the delegate accepted the applicant may have been robbed in 2015 when his phone was stolen, the delegate did not accept this was politically motivated. The delegate accepted that since being in Australia the applicant had attended one protest at [Venue] and posted anti-Venezuelan political material on social media privately, but not publicly. Overall, the delegate found the applicant did not have a profile of interest, did not meet the relevant definition of refugee, did not face a real risk of significant harm, and was not a person in respect of whom Australia had protection obligations.

4. At the primary stage the applicant lodged his application for a protection visa (PVA) including the protection visa application form, in December 2017. The applicant subsequently lodged a statutory declaration with attachments dated in August 2018, post interview submissions and attachments dated in September 2018, statutory declaration dated in September 2018, and additional submissions dated in April 2019.

5. On 29 March 2023 the Tribunal received a request for the applicant’s hearing to be expedited. A one-page letter dated in March 2023 from a Clinical Psychologist at [Psychology provider] was provided in support of this request. As the reasons were not sufficiently compelling to give the applicant’s case a higher priority than the Tribunal’s other protection cases, the Tribunal refused this request on 13 April 2023. 

6. At the primary and review stages the applicant was represented by the same legal centre. In October 2023 a different lawyer at the same legal centre was appointed to act for the applicant.

7. In April 2024 another request for an expedited hearing was received by the Tribunal along with a statutory declaration by the applicant dated in April 2024, letters of support from [Organisation] dated 9 January 2023[1], friends dated in January 2024, from the applicant’s General Practitioner (GP) dated 3 January 2024, and photos and videos regarding the applicant’s claimed involvement with the LBGT community. Also provided were duplicates of some of the material already provided at the primary stage[2]. The Tribunal subsequently advised the applicant’s representative that an earlier hearing date on 29 August 2024 was available. By email dated 19 July 2024 the applicant agreed to this earlier date, and the hearing was re-scheduled accordingly.

   [1] An email dated 19 April 2024 from the applicant’s representative states this letter was “incorrectly” dated as 2023, when it should have been 2024. When this was queried at hearing the applicant and his representative confirmed the letter was correctly dated in 2023 (not 2024) indicating their statement in the email dated 19 April 2024 was made in error.

   [2] While the 19 April 2024 email referred to a Statutory Declaration dated 24 September 2019, it was confirmed at hearing that reference to 2019 was in error and that it was meant to state the year 2018.

8. By email dated 19 July 2024 the applicant’s representative provided the Tribunal with a letter from [Health service] dated 16 July 2024.

9. By email dated 22 August 2024 the applicant’s representative provided the Tribunal relevantly with a lengthy submission including photos of the applicant engaged in claimed political activities, his claimed social media posts, and [a Health service] discharge summary dated 11 July 2024. By email dated 23 August 2024 the applicant’s representative provided a statutory declaration by the applicant of the same date.

10. The applicant appeared before the Tribunal on 29 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s representative. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages. The applicant also had a support person attend the hearing, although she provided no oral evidence at hearing.

11. On 5 and 12 September 2024 the applicant provided the Tribunal with further legal submissions including a hyperlink to a podcast dated in January 2023 that appeared on [News source][3] with an accompanying article, an odd 16 additional letters of support, additional screenshots of social media posts and English translations.

    [3] This podcast was in Spanish, and I was unable to make out what was said, I could make out that the applicant’s name which was mentioned, that it appeared to be about protests in Venezuela, the applicant’s travel to Australia, and his application for a protection visa which was also reflected in a brief English description accompanying the podcast.

    CRITERIA FOR A PROTECTION VISA

12. 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.

13. 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.

14. 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).

15. 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.

16. 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.

17. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

    Mandatory considerations

18. 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

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

20. The applicant has consistently claimed to be a citizen of Venezuela, not to be a citizen of any other country, and to not have a right to reside elsewhere. In the PVA the applicant said that from [September] 2015 until [November 2015] he was in [Country 1] for training and work purposes and able to enter [Country 1] on a [visa] arranged by his then employer, [Employer]. Consistent with this the applicant’s passport shows a [Country 1] [visa] was issued to him in June 2015 and that it is still valid and will expire on [in] June 2025. As noted below the [Country 1] visa was granted with the assistance of the applicant’s former employer, [Employer], for the purposes of his work and training with that company at that time. He ceased working for the company some 8 years ago now. Accordingly, the conditions of the visa’s issuance no longer exist. Moreover, the [visa] only allows an alien having a residence in a foreign country, which he has no intention of abandoning, to temporarily visit [Country 1] for [the purposes of the visa], which would not be the case if the applicant were to travel to [Country 1].[4] Additionally, [Country 1 authority] officers have a broad discretion under the [Legislation] to determine the admissibility of a person seeking to enter at a [Country 1] border[5] and to refuse entry to a person with a visa like the one held by the applicant under the [Legislation], including for misrepresentation of a material fact. The applicant is a Venezuelan citizen who has spent several years in Australia on bridging visas and as noted below there is publicly available information to show he is seeking asylum in Australia. Moreover, the situation in Venezuela is well-publicised and [Country 1] has had a level of involvement in seeking to assist with the crisis.[6] In combination I am satisfied these circumstances would very likely warrant revocation of the applicant’s [Country 1] visa and that it is very likely the visa would be cancelled if he arrived at the [Country 1] border seeking entry. I am satisfied the applicant does not have a right to enter and reside in [Country 1] within the meaning of s 36(3). Accordingly, based on the applicant’s consistent claims and passport I accept he is a citizen of Venezuela with no right to reside elsewhere. I consider Venezuela the receiving country. Based on his passport the applicant is about [Age] years of age.

    [4] [Legislation, section].

    [5] [Country 1 authority webpage].

    [6] [Country 1 agency reference].

21. The applicant has consistently claimed to be from Maturin, Monagas, Venezuela, and his passport confirms he was born Maturin. He has consistently claimed to have parents who are now both in their mid-[age range], and [a brother]. He has consistently claimed his father works in [work sector], and that his parents remain in Maturin. At hearing he elaborated on the type of work his father did but said he was not sure what he was doing now. In his 2018 statutory declaration the applicant said that his brother fled to [Country 2] due to the ongoing turmoil in Venezuela at that time, but that many Venezuelans were facing Xenophobia in countries like [Country 2]. At hearing he said that his brother had since relocated to [City] in [Country 3], that he was unwell, and while the applicant was not in contact with him because of differences of opinion, he sent money home to help his family, including his brother. In response to a specific question in the PVA the applicant nominated Catholicism as his faith. In his 2018 statutory declaration he said his family were not particularly religious, which he confirmed at hearing, stating he believed in God but did not attend church on Sundays. He has made no claims to fear harm on account of faith and nor do I consider any arise on the material. While in response to a specific question in the PVA the applicant nominated “Hispanic” as his ethnicity, at hearing he explained that this was not technically an ethnicity, and that his identity was Latino. He said if people asked, he would say he was a Hispanic Latino. He made no claims to fear harm on account of his ethnicity and nor do I consider any arise on the material. Based on the broadly consistent claims, supporting documents and the applicant’s plausible elaboration at hearing, I accept the applicant’s background claims regarding where he is from, his ethnicity and faith, and in relation to his family, including their work and locations.

22. The applicant claims to be [an occupation], having completed degrees and other training, to have worked in various capacities over the years, and that he is currently undertaking a Masters [degree] in Australia. In his PVA in 2017 he said he completed kindergarten, primary and secondary schooling, and some compulsory pre-military training when younger, an undergraduate degree from 2006 until 2009 in Maturin, another degree between 2009 and 2015 in Maturin, and some shorter training courses in 2013, 2015 and 2016. Student records, while mostly untranslated, appear to show he completed university studies between 2009 and 2013 in Venezuela and graduated with [a] degree, it appears, in about 2015. At the protection visa interview at the primary stage (PV interview) he explained he finished all subjects in 2013, presented a thesis in 2015, and received the diploma in 2015. His PVA states that for 2 months in 2012 he worked [in] a [workplace] in Maturin, did a 3-month internship as [an occupation 1] in 2013, worked for [Employer] (a large [Country 4] [company]) in Maturin as a trainee from 2014 until 2016, and in between all that did short stints as [an occupation 2] in Venezuela in 2010/2011 and 2014. At the PV interview he said he started his role at [Employer] in December 2014, and had worked for the company in various capacities, namely as [roles], and that he finished up with the company in December 2017. He said he was made redundant after the company essentially lost government contracts and that he ceased working for them in December 2016, which is consistent with online reporting.[7] In his 2018 statutory declaration he claimed that while in this role he travelled overseas twice for work, once in December 2014 to [Country 5], and a second time in September 2015 to [Country 1] for 2 months, which is consistent with his travel history in his PVA, at the PV interview and at hearing. While undated and untranslated it is possible to make out in a letter from [Employer] that he worked with them from 2014 until 2016 which does appear on a genuine looking letterhead with contact details and is signed and I am willing to accept it as genuine. This corroborates the applicant’s claimed work at [Employer]. In his PVA the applicant claimed he travelled to Australia in 2016 on a student visa and commenced a Diploma [at] [College] in February 2017. He initially worked as [an occupation 3] between January and February 2017, did casual [work] at a [shop] briefly in 2017, worked making [products] intermittently in March and April 2017, then worked as a supervisor in a [workplace]. At the PV interview he said he worked full time in customer service which appears to have been a reference to his work at [Organisation]. At hearing the applicant confirmed all these details in relation to his education and employment history, elaborating on aspects in relation to some of his more casual roles in Australia. He also elaborated on his studies in Venezuela, saying he originally enrolled in [specialisation 1] but did not like that and so changed to [specialisation 2]. He also said he worked for [Organisation] full time as [an occupation 4] in [a team], assisting [people]. He said he was now undertaking a Masters [degree] at [University], and after the hearing provided a letter from [University] confirming this. A January 2023 letter from the [Organisation] confirms the applicant has worked with them for a number of years. Based on the broadly consistent claims, documentary evidence, and the applicant’s spontaneous oral evidence at hearing I accept the applicant’s background claims regarding his education and work history in Venezuela and Australia.

    [7] [Reference].

1. The applicant claims to suffer from mental health issues. In the April 2024 statutory declaration he said the prolonged delay in processing his appeal had led to severe psychological distress, he experienced symptoms of persistent anxiety, episodes of depression, sleep disturbances, and an overwhelming sense of helplessness, which significantly hampered his daily functioning, including social interactions, employment, and had overall impacted his quality of life. In the submission and statutory declaration provided in August 2024 he added that the delegate’s treatment of him at the primary stage (he has accused her of rolling her eyes among other things at the PV interview), delay, recent deterioration in Venezuela and its impacts on safety, challenges of coming out as a gay man, and ongoing employment dispute, had also impacted his mental health and vulnerability.

2. The applicant has provided a number of documents in support of claims regarding his mental health. The 2023 psychologist’s letter is a brief letter in which a clinical psychologist states they have been seeing the applicant since 4 July 2022 and that the applicant suffers symptoms of anxiety and depression in the moderate to severe range because of visa related difficulties. The 2024 GP letter states the applicant has been a regular patient at that clinic since January 2019, and of that GP since May 2023, that the applicant has a documented history of anxiety and depression and has taken Sertraline (an antidepressant) since 2020. It also states exacerbating factors included significant workplace stress, financial pressures, the political situation in Venezuela jeopardising the safety of his family and friends, and the pressure of university. The [Health service] discharge summary notes are much more detailed and talk about a range of matters. Among these it states the applicant self-referred himself to triage in June 2024 with worsening mental health and thoughts of jumping in front of a train but had no plans to act on this. It also notes the applicant had reported of past abuse by his parents, that his father used to hit him with a baseball bat, and would encourage his brother to hit the applicant, and that the brothers were often compared but that the applicant claimed his brother was not as academically gifted as him. It reports that after these incidents the applicant left home and continued to study at university and moved around a lot staying with friends and extended family. It reports he is allergic to pollen but medicated for this and that he had used Sertraline in the past and was now on Veortioxetine, which was reportedly working. It also reports the applicant engaged well, has normal speech, and that psychomotor activity was normal. In the [Health service] letter dated in 2024 a Consultant Psychiatrist briefly stated that the applicant was a “consumer of this service from 17/6/2024 till 12/07/2024” for “situational crisis”. At hearing when it was noted that in contrast to his address history in his PVA that the [Health service] discharge summary said he left home at [age], the applicant denied this. After returning from a short break after the applicant’s representative asked if we could adjourn while she spoke with the applicant, the applicant said that he misunderstood the question, and that at [age] he left home and lived with various friends and family because of family violence, claiming that his parents were strict, and his father video recorded a fight between him and his brother and was always encouraging his brother to hit him. After the hearing the applicant provided another brief letter from his GP dated in August 2024, in which the GP states that the applicant has been suffering from Major Depression since 24 January 2020 and was proscribed antidepressants and that he requires counselling and support.

3. On the evidence, in particular the documentary evidence, I accept the applicant suffers from some anxiety and depression, takes antidepressants, that he started casually seeing a psychologist in around July 2022, self-referred himself to [Health service] in June 2024 because of worsening mental health and thoughts of jumping in front of a train (but had no plans to act on this) and that this was attributed by the Consultant Psychiatrist at [Health service] at that time to “situational crisis”, and that he has suffered family violence in the past which resulted in him leaving home at one point when [age]. At hearing the applicant confirmed he took antidepressants daily including on the day of the hearing. When asked if he felt well enough to proceed with the hearing, he said that he did. At hearing the applicant appeared to understand questions put to him, and issues raised, his responses addressed these in a meaningful way, and were often verbose, and it appears that his mental health issues did not materially affect his ability to provide oral evidence or meaningfully engage in the hearing and I do not consider that it did.

4. I note that the [Health service] discharge summary refers to various issues the applicant reported facing including financial, work, family, social, and his visa refusal. It notes he had been given 2 warnings at work for work related issues, including sharing a meme with the “F” expletive on “Teams”. It also notes of the breakdown of a friendship with a group over a purported misunderstanding, that he had also ceased involvement with an LGBT [sport] group because of a perception he held that others were gossiping about him, and that he had attended court and was fined for theft of some [item] seemingly resulting from a disagreement. It noted that the applicant was not always able to see his contribution to the problem and tended to blame others and had limited emotional coping. In submissions to the Tribunal the applicant also accused the delegate of, among other things, rolling her eyes and making him uncomfortable at the PV interview. At hearing when this information was noted the applicant disagreed with the assessment by the Consultant Psychiatrist at [Health service] that he was unable to see is contribution to problems, stating, among other things, that he was a very assertive person and stood up for himself whenever he saw what he perceived to be an injustice but that he would acknowledge his contribution. In this regard, the August 2024 submission asserts that the applicant is an advocate for “perceived injustices” despite the personal toll that speaking out may take on him which was largely reiterated in later submissions. At hearing the applicant said that in relation to the theft he was referred to a diversion plan which required payment of a fine (and after the hearing provided submissions and a letter from the Magistrate’s Court confirming 2 counts of theft and that he had successfully completed this diversion plan some time ago now and that this matter was historical with no criminal conviction recorded). His representative submitted that the other party in relation to the theft was an ex-army officer and speculated that that may have been why the matter was escalated, although there is otherwise nothing to indicate this. At hearing the applicant said that in relation to the work dispute they fabricated evidence about his attending counselling, so he challenged this, and this had resulted in an escalation, and that since then there had been many cases of baseless false and misleading conduct by [Organisation] that he had stood up to. While it was suggested in the April 2024 statutory declaration that in relation to the work dispute the applicant had won at the Fair Work Commission, I consider this overstated, as I note that at hearing when asked about this the applicant clarified that the Commission had found [Organisation] had to revoke the warning issued to him and that he had to undertake professional education and training and link with the Chaplaincy for support, and so it appears the Commission mediated the matter between the parties. At hearing the applicant also said that there was evidence the members of the LGBT [sport] group had gossiped about him. I noted at hearing that it did seem he often found himself in difficult situations with others because of what he perceived to be an injustice. Before and after the hearing the applicant provided numerous support letters or character references from friends and colleagues, attesting to his good character, among other things.

5. On the evidence, in particular the documentary evidence, I consider that the applicant may at times be sensitive to perceived injustices which may have led to disagreements with others in the past and may at times result in him overstating matters or misrepresenting events. The applicant provided the Tribunal with the information regarding the theft, friendship breakdowns, and work issues. I do not consider these matters, including the minor and historical theft related matter, relevant in terms of whether or not the applicant satisfies the requirements under s 36(2)(a) or 36(2)(aa).

6. The applicant claims to be gay. At the review stage in the April 2023 statutory declaration the applicant claimed for the first time that he was gay. He claimed that in 2022 in a video call he came out as a gay man to his mother. His mother was supportive but cautious and concerned about how the family would react, particularly as his father and extended family held homophobic views. In his August 2024 submission he added that his mother had not told his father because of these fears. He claims he is physically, emotionally, intellectually, and psychologically attracted to men. He has known this for a long time; however, he essentially suffered internalised homophobia, because of the heteronormative family and society he grew up in and concealed his sexuality when in Venezuela. He only accepted his sexual orientation at about [age] years of age. It was a gradual process, and it was only once he was in Australia, that he felt safe and accepted and able to live authentically as a gay man. Accordingly, about 3 months after arriving in Australia in 2017 he had his first encounter and relationship with a man. In Venezuela he concealed his sexuality and so did not face any direct physical harm, however while working at [Employer] he believed he faced bullying and subtle forms of discrimination from coworkers who he believes presumed his sexual orientation based on his tone of voice, mannerisms, and music preferences, and that this had had a profound impact on him. The [Health service] discharge summary also refers to the applicant as a “same sex attracted male”. It states he has never been in a relationship and suggests this might be due to insecurities around his body shape and being fussy about others.

7. The applicant claims that when he lodged his PVA he did not appreciate the significance of his sexuality on his claims for protection, only realising this in hindsight. He also claims he was afraid and apprehensive at that time about talking about it because he was not fully “out” and believed that his other claims were more critical and immediately relevant to his claims for protection. At hearing the applicant provided a detailed, highly consistent, and credible account of his “coming out” in Australia. For example, he said that as none of his family or friends from Venezuela were in Australia when he arrived in Australia he felt a sense of freedom in relation to his sexuality, and that about 3 months after arriving, he made a conscious decision to start dating men and downloaded a dating “app”. He also explained that the legalisation of gay marriage in Australia made him feel more comfortable about being openly gay and talking about it. In the August 2024 submissions it was also submitted that the applicant had not mentioned this earlier because while LGBT people had experienced discrimination in Venezuela in the past, it had not necessarily risen to the level of serious or significant harm, submitting that these issues had now become more pronounced and referred to a series of articles reporting on a more recent raid on a gay venue by authorities and incidences where members of the LGBT community had been harassed  or harmed, which events activists have reportedly linked to Maduro seeking to  gain support from certain more conservative groups in Venezuela.

8. In support of these claims the applicant has provided numerous letters of support or character references in which the writers often identify the applicant as a gay man, and photos and videos. In one letter dated 10 January 2024, which is signed and detailed, the writer claims to have met the applicant through [a] dating “app” used by the gay community. He explains that they were initially involved in an intimate relationship but that that had evolved into a friendship. At hearing the applicant reiterated these details, stating they started dating but it evolved into a friendship. The applicant has also provided screenshots to show he downloaded various “apps” used by the gay community in 2017 and 2018 and I accept he downloaded these “apps”. In another letter provided by the applicant, dated in January 2024 and with contact details, the writer says they met the applicant in 2018 at a party organised by [Organisation 2] (an LBGTQ+ organisation) and that the he had always known the applicant to be openly gay, that the applicant joined the LGBTQ+ inclusive [sport] club the “[Club name]” in about 2018 or 2019 and that they had attended many well-known gay venues with the applicant in the past, specifically naming these. At hearing the applicant elaborated on this stating that they met at a language exchange at a gay bar in [Suburb] and that it was this friend who introduced him to the LGBT [sport] team, the [Club name]. The applicant has also provided photos of him at LGBT events like [named Festival] in 2024, Mardi Gras 2023, and at events called “[Event]” and “[Event]” in 2017 and 2018, and I accept he attended these. He has also provided photos he dates in 2017 and 2018 of him with the [Club name] [sport] team, in the uniform, in the change rooms, and at fund raising events, and I accept he joined and played with the [Club name] for a period as claimed.

9. The applicant has claimed involvement in [Organisation 3] and [Organisation 2]. He has provided a photo of him displayed at an Exhibition titled “[Exhibition title]”, with accompanying publicity material for the exhibition which details the applicant’s image and first name, why he participated in the exhibition, and explains that the applicant moved to Australia because of the crisis in Venezuela and a sense he was not safe there. A link to a video interview on the publicity material takes the viewer to a publicly available YouTube video dated in January 2024 where, among other things, the applicant introduces himself by his first name and someone from the LGBTQ community and originally from Venezuela, and he largely reiterates what was said in the publicity material noted above. Other videos, also publicly available, clearly show the applicant in about 2021 talking about being a gay asylum seeker and his involvement in the establishment of the [Organisation 3] queer asylum seeker support group up until 2021 (which was when he discontinued his involvement after commencing his studies at [University]). It is apparent from the video that it has been publicly viewed over 800 times. It cannot be discounted that the Venezuelan government may have viewed these publicly available videos.

10. While the applicant only first mentioned his sexuality at the review stage, his reasons for its late mention have been plausible, including that it was not, essentially, a central claim, homosexuality is not illegal in Venezuela, and reports suggesting more recent increased harassment of the community[8]. Moreover, as detailed above, he has provided a large volume of supporting evidence, and on the credible evidence I accept as evident that he is a gay man who has “come out” since being in Australia and has had some involvement in the LGBT community since being in Australia as claimed, and may have felt at times in Venezuela that some people could tell and may have personally felt at times that he was discriminated against because of this.

    [8] Ana Vanessa Herrero, ‘Raid, arrests at Veneuelan gay club provoke fears of new perseuction’, 4 September 2023; 'Country Reports on Human Rights Practices for 2023 - Venezuela', United States Department of State, 22 April 2024, 20240423125243;

11. The applicant claims that in Venezuela he was a high-profile member of AD and the “[organisational role]” and public face of the youth movement within AD up until around 2014.

12. Since the applicant’s 2018 statutory declaration he has consistently claimed that while studying at university he became increasingly politically active, initially in a group he has likened to a student union, but that he later became drawn to AD and what it stood for (particularly as some extended family had had, historically, active high-level involvement with the group, and other family have privately supported them). He claims he befriended an active member of AD at his university and started attending weekly meetings in 2011 where he took education and political history classes. He claims to have joined AD in about 2011. While he earlier claimed he and his friend formed the student arm of AD at university, he later clarified that by this he did not mean he established a formal student arm of AD. Given the applicant’s tendency to overstate matters I am willing to accept that by this the applicant may have meant he established an informal group of students with an interest in joining AD, outside of university, which is consistent with the applicant’s earlier 2018 statutory declaration where he said many students he recruited went on to formally join AD. The applicant claims to have been appointed [organisational role] of the AD for Monagas State in 2012. When asked at hearing when he ceased in this role his response suggested it was not a formal ongoing position within AD, as he said there was no specific date or year that he finished up, because after him there was no one else. At hearing he confirmed he did not have any involvement with the AD after 2014 (essentially, when he started working for [Employer]). He has consistently said that in this role he was responsible for recruiting young people, was the team leader of a group, and responsible for coordinating protests and meetings, and was involved and assisted with political campaigns and elections. Since his 2018 statutory declaration he has claimed that in 2013, in the lead up to the election, he increased his involvement, attended meetings daily, joined a group of recruiters, and claims to have been involved in what sounds like electioneering activities, including promoting the party in certain neighbourhoods, handing out fliers, and talking with people. When pressed for more detail at hearing he said that they would speak to the people by going house to house, ask them what their problems were, where they lived, what their priorities were in terms of whether they needed asphalt, public lighting, how often blackouts occurred in their area, and so forth. They would talk about what their plans were, and explained they were from the young group of the party. He said they started this work a couple of months out from the elections. At the PV interview he said he worked on the campaign every weekend and when he could during the week, around 30 to 40 hours a week.

13. At the primary stage the applicant claimed that in the lead up to the 2013 elections he was the press spokesperson for AD and interviewed by news reporters on numerous occasions, where he declared his allegiance to AD, criticised the government, and that articles about this were published in several different local newspapers which had all been shut down now. In support he has provided a photo of him talking to a small group of people [with] what appears to be 2 cameras to the edge of the image. One image shows this photo was uploaded to his [Social media] profile. At hearing I noted that his claims to be a press spokesperson for AD suggested the media were involved, which suggested some the information would be publicly or widely available, and yet all that was provided in support were some photos. The applicant then appeared to water down or adjust his earlier claims stating that it was not like in Australia, and that in Venezuela, particularly back then, they would just take a photo and the photo he had provided with his arm pointing outwards was taken by a friend, not the media. He said it was taken so that it could be later used in promotional material for AD. He said he was just a juvenile member and contrasted his “press conferences” with those held by more senior members of AD such as for example, Members of Parliament, stating that when they did press conferences it would be a media event, and the media would be there.

1. The applicant claims various photos of him and his team at AD and his statements critical of the government were published, although he has variously claimed not to have these because they were destroyed in the fire on the AD building in 2013, and his phone was stolen while at a bus stop on 28 February 2015 by someone on a motorbike, in what he speculates was a politically motivated robbery. When I asked at hearing how he knew it was politically motivated, given reported widespread generalised violence in Venezuela[9], I found his explanation of “when you know you know”, unpersuasive. While on the evidence including the country information, I am willing to accept he was robbed while at a bus stop, I do not accept this was politically motivated. The applicant has claimed he has been unable to obtain a support letter from AD because they wanted to charge him for this and he did not agree to paying money for the letter, which he considered exploitative. Later he claimed he could not obtain a letter from AD because they had since disbanded. As noted above, I noted at hearing that despite his claimed high-level public involvement with AD, the only supporting documents provided in support of this to date are a limited number of photos. In this regard he has provided photos showing him wearing a DA t-shirt along with other young people also displaying the DA logo and holding flyers. He has provided photos, one of him with a claimed former mayor of Maturin, “A”, who he claims opposed the government and was later imprisoned. Another photo shows him with his arm over the shoulder of a woman, “B”, who he claims was a high-profile AD member. I note that consistent with the applicant’s claims online publications[10] state that A is a mayor who is opposed to the government and has been targeted because of this and that B appears to have had some high-level involvement with AD at some point, worthy of media reporting. The images of A and B in the applicant’s photos bear a striking resemblance to images of these people in the online reporting and I accept the people in the photos with the applicant are the high profile people he claims, and that he has clearly had some level of past involvement with high profile or high level members of AD in some capacity in the past. I also note that in light of these photos, it is difficult to understand how the delegate did not accept the applicant had ever had any level of involvement with AD in the past.

   [9] USDOS 'Country Reports on Human Rights Practices for 2017 – Venezuela', 20 April 2018, OGD95BE927489.

   [10] Ana Perdigon, Former Maturin Mayor Linked to Anti-Government Conspiracy, (19 March 2024)  Orinoco Tribune, < Angela Betancourt, Sandra Alfaro de AD Monagas resalta el compriomiso con la unidad y law ruta electoral, El Nuevo PAIS <

2. The applicant claims that [in] April 2013 following an attack on the AD building in Maturin by members of the Partido Socialista Unido de Venezuela (PSUV), when he and some other AD colleagues were inside, he was arbitrarily detained and mistreated by authorities along with other members because of their involvement with AD. This claim has been broadly consistent. He has claimed the PSUV threw rocks, Molotov cocktails, and other items at the building until it caught fire. They were inside and terrified. Eventually authorities escorted them out of the building and held them at another location, their names were taken, their phones confiscated, and eventually after being held for a number of hours, they were released to their families that same day, who were waiting outside the place they were being held. At hearing the applicant appeared to exaggerate these events when he said, for the first time, that as the leader of this team he stood up and tried to advocate for his group and ask why they were being held as hostages, but he was aggressively grabbed by the scruff of the neck and forced down. In support the applicant has provided a collage of images and other images from the attack on the AD building on that day which online sources report was an attack on the AD building in Maturin by PSUV.[11] The images provided by the applicant are readily available online and there is nothing in the images linking him with the events so I place little weight on these images other than that they confirm the event occurred and in his area. The applicant provided an elaborate description of these events at the PV interview including describing the smell of the burning walls likening it to the smell of burning polystyrene. He stated the attack occurred on voting day and that they were discussing what they had seen that morning at their voting centres when the attack occurred, although, the attack on the building was reportedly the day after voting day.[12] However, I am willing to accept as plausible that while they may have been talking about voting day on the day of the attack, that they had actually voted the day prior, and because of the passing of time (more than 10 years) and the traumatic nature of these events, that it is plausible the applicant may have erroneously recalled it as having all happened on the same day and I draw no adverse inference from this. The applicant has variously claimed a sense of injustice about these events, including claiming they were told to crouch down with their heads lowered, that he did not feel the authorities assisted them during this incident, and that the Ombudsman did not assist or take their complaints about the incident and their treatment. I note the applicant’s tendency to overstate matters, particularly in response to perceived injustices, and while the authorities appear to have acted militaristically during this incident and the applicant may have been roughly treated, the authorities did escort the applicant to safety from a building that was being attacked and burning, and it appears that his details were taken, at least in part, to notify family, who later picked him up from where he was being held and on that same day. There is nothing to suggest he was later detained again in connection with these events despite remaining in Venezuela for a number of years after these events. Based on the applicant’s detailed, broadly consistent evidence, I am willing to accept he was in the AD building on the day of the attack and escorted from it with AD colleagues by authorities and that they may have been roughly treated in this operation, however I do not accept he was targeted or of ongoing interest after his release following this incident as has been claimed.

   [11]  globovision - el secretario general de acción democrática henry ramos allup denuncio que un grupo violento trato de  - Google Search (5 September 2024)

   [12] The Guardian, ‘Nicholas Maduro declared Venezuela election winner by thin margin’, 15 April 2013.

3. The applicant has made the generalised claim that he continued to be involved in AD protests after this and lived in constant fear the authorities would arrest, kidnap, or murder him, because of his activism as they knew his name and where he lived. Although as was noted at hearing in relation to his claimed ongoing involvement with AD there have been variations and a lack of substantiating detail. While he claims to have relocated to Merida for his safety after this, as was noted at hearing, the dates when this occurred have varied considerably. I note that with time his claimed date of relocation to Merida has moved closer and closer to the date of the attack on the AD building, which raises concerns for me about the reliability of this evidence. For example, in his PVA he said he relocated to Merida in August/September 2015, in his 2018 statutory declaration he said it was the year prior, in August 2014, and in the post interview submission and August 2024 submission he said it was in April 2014. The applicant claims that while in Merida he continued his political activism in the area receiving “more of the same treatment” and realised the situation was no better there, so returned to Maturin. He claims he tried to distance himself from AD but due to his popularity members kept involving him and it was very difficult for him to keep a low profile, until around the time he started working with [Employer] in 2014, which was when he ceased involvement.

4. At hearing the applicant said that the way they joined a political party in Venezuela was not the same as in Australia, and that he did not have an identity card that showed he was an official member of AD. He indicated that as a member he was essentially required to show up for meetings, show his support, and wear the AD colour, which was white. At hearing I noted the country information[13] about AD at around his time of claimed high level involvement indicated that to become a member of AD a person had to fill in some official documentation, be approved at higher levels, and that they would be issued with a membership card and have proof of membership. The applicant claimed that that was not the case for juvenile members, apologised for not clarifying this earlier, and said that that process was for official members of the party such as Members of Parliament, councillors, mayors, governors, or the president. However, I am unpersuaded by this brief explanation given the same report also notes that this process applied to members as young as 15 years of age (the applicant was in his 20s at the time) and does not suggest it was reserved for “official members”. I also note the applicant is not claiming to have been a mere member, but rather to have been appointed [organisation role], press spokesperson, and the public face of the youth of AD.

   [13] Immigration and Refugee Board of Canada, ‘Venezuela: The Democratic Action (Acción Democrática) political party, including ideology, objectives, structure, key positions, and leadership; requirements and procedures to become a member; appearance of membership cards; treatment by authorities (2013 – June 2017), VEN105828.E.

5. At hearing I noted country information reporting on the government restricting the travel of people of adverse interest on account of a political profile which the applicant acknowledged. Examples include the arrest of an activist at an airport when attempting to depart Venezuela in 2017, restrictions on travelling internationally, and some being barred from re-entering Venezuela[14]. As I noted at hearing, despite the applicant’s claimed public high profile with AD, a leading opposition political party at the time, the applicant was issued with a passport in [2014], legally travelled to [Country 5] in December 2014, legally travelled to [Country 1] in September 2015 returning to Venezuela some 2 months later in November 2015, and left Venezuela legally at the airport in December 2016, ultimately bound for Australia, all without issue. The applicant briefly indicated that because the travel was organised through his work with [Employer], he did not have any issues, although based on the country information I find it difficult to believe that if the applicant had a political profile of adverse interest with the government at the time that this would have made a difference. I consider his legal travel without issue at those times indicates he did not have a sufficient profile of interest to attract the adverse attention of the government or those working with them at those times. I also note that he ceased active involvement with AD in 2014, commenced working with [Employer] in about December 2014, remained in Venezuela for an odd 2 years after this, leaving for Australia in December 2016, and that there are no particularised claims of him having been detained or targeted by the government or those working with them in that time. I do not accept the applicant was wanted by the government or those working with them when he left Venezuela in 2016 on account of his political profile or otherwise. 

   [14] Human Rights Watch, 'Crackdown on Dissent. Brutality, Torture, and Political Persecution in Venezuela', Human Rights Watch, 29 November 2017, CISEDB50AD7675;USDOS, 'Country Reports on Human Rights Practices for 2017 – Venezuela', 20 April 2018, OGD95BE927489.

6. As noted above I have found aspects of the applicant’s claims concerning his historical involvement with AD at times unsupported, varied, overstated or exaggerated, and at odds with the country information, and I do not accept he had a high profile or was the media spokesperson or public face of the youth movement of AD. On the evidence, particularly the photos which clearly show him in a AD t-shirt with other young people also involved with AD at the time, and images of him with high profile people who opposed the government and were linked with AD, his consistent claims to have become more actively involved in the lead up to the 2013 elections, and his spontaneous oral evidence at hearing that they would go from house to house to talk to people about what issues they were concerned about, such as public lighting and so forth, I accept that as a vocal and politically active university student he became interested and involved to some extent with AD in around 2011, promoted the group among his cohort at university, became more involved in the lead up to the 2013 elections when he and some other university students were escorted from the AD building in 2013 when it was attacked, but was subsequently released to his family that same day and not of ongoing interest on account of his more low level involvement with AD. I am willing to accept that at some point he may have moved around and lived in Maturin, noting he also moved around at [age] years of age following an incident of family violence, although I do not accept he was of interest to the government or authorities on account of his more low level political activities with AD or otherwise, including when he travelled to [Country 5], [Country 1], or when he left Venezuela in 2016, ultimately bound for Australia. While the applicant later claimed he left Venezuela because he specifically feared harm in Venezuela from the govenrnent or those working with them because of his political profile, initially, in his earlier PVA he said he travelled to Australia in 2016 for 2 reasons, namely, to study (he travelled to Australia in 2016 in a student visa), and because of the generally deteriorating conditions. He has since claimed that study was a means of escape. He claims that when he was made redundant by [Employer], he used his redundancy package to fund his travel to Australia in order to escape the conditions in Venezuela explaining at hearing that there was a fear at the time that it would become like Cuba, and he would be unable to leave. As noted above I do not accept he was of interest to the government or those working with them when he left Venezuela in 2016 on account of a political profile including involvement with AD which involvement ceased years before he left in 2014, and I do not accept his later claim in his statutory declaration in 2018 to have fled Venezuela in fear of being personally targeted as a high level member of the AD. I accept his consistent claim to have left Venezuela to study and because of the generally deteriorating conditions in Venezuela as plausible. 

7. While the applicant first arrived in Australia at the end of 2016, he did not apply for a protection visa until the end of 2017. I accept the applicant’s explanations for this delay particularly given the deterioration in the conditions in Venezuela during this period, and also that there may not have been much impetus to apply for another visa given he already had a student visa at the time. I draw no adverse inference from this delay.

8. While the applicant claims he no longer supports AD he claims that since being in Australia he has been involved in some public protests against the Venezuelan government and shared material on social media in support of opposition groups and criticising the Maduro government. While initially seemingly claiming to have attended 2 protests in 2017 at [Venue] against the Venezuelan government, in his post interview submission the applicant clarified that while there were 2 rallies, he had only attended one, the second one, which was on or about [Date] April 2017. He said the protest was organised by “Venezuelans in Melbourne” who were not an outwardly political group. He said that they were specifically asked not to wear political colours or logos at the protest because they were only protesting the humanitarian crisis and that he had never stated he feared harm as a result of attending the protest. He has also provided a video of a small protest at [Venue], showing protestors singing, holding candles, the Venezuelan flag, and some signs. He has provided 3 photos of the protest; one shows the applicant standing alone at [Venue] holding up a sign stating “Venezuela Hang in There! Strength and faith”, another shows him standing in a line with other people holding a sign about the separation of powers, and the third is a wideshot of the protest. After the hearing the applicant provided a podcast and associated article appearing on [News source], which is clearly publicly available, and shows images of him at this protest. The podcast focuses on the process of applying for asylum in Australia and features the applicant, naming him. While the podcast and most of the associated article is in Spanish, with no English translation provided, a portion of the article is in English and reports the applicant travelled from Venezuela to Australia to seek a protection visa because of his political opposition position and about the attack on the AD building in Maturin in 2013. On the evidence, I accept the applicant attended the protest on or about [Date] April 2017 at [Venue], and that information about this and his seeking protection in Australia because of his political opposition to the Venezuelan government is publicly available. The applicant has also provided photos of him [at] a pro-democracy rally at Parliament house [in] August 2024, along with many others as a mere protestor, following Maduro’s claim to victory at 28 July 2024 Venezuelan election, and has provided a copy of a publicly available article in which this image is published.[15] On the evidence I accept he attended this protest and that an image of him at the protest is publicly available.

   [15] Aljazeera, ‘Protestors rally in Venezuela’s capital as post-election crisis persists’, 17 August 2024.

9. In the applicant’s April 2023 statutory declaration, he claimed that since 2019 his political activities had been mostly online and that he shared content on the general situation in Venezuela, the corrupt practices of the government, the Xenophobic treatment of Venezuelans in other countries, and brought attention to the direct circumstances faced by Venezuelans in the country by sharing content on his “[Social media 2]” account. He said he had not sent money to protesters or political movements in Venezuela or elsewhere, and his intention had been to inform and educate a broader audience about the situation in Venezuela. In the August 2024 submissions he said that since the election on 28 July 2024 he had posted material online on social media accounts in his own name, sharing them with friends and followers in Australia and Venezuela, opposing the election results, PSUV, and Maduro government, and supporting the protests in Venezuela and the opposition movement, and had been vocal about his views in Australia. In support of these claims the applicant has provided an odd 15 pages of what appear to be multiple screenshots from social media dated in around August 2024, with all sorts of content. While I was unable to make out what the untranslated posts state it is clear this material include selfies and personal notes about how the applicant was feeling, educative material about Venezuela and the crisis such as the number of children who had dropped out of school, calling Maduro a fraud, and supporting the protests in Venezuela, among other things. At hearing the applicant confirmed that his social media accounts were private stating that they would not be accessible by another person unless he added them as a “friend” or “follower”.

1. I noted at hearing that despite the applicant having been in Australia since 2016, his political activities had been limited and mostly, more recent. The applicant said that he initially detached himself from the situation in Venezuela because he did not want to hear anything, to protect his mental wellbeing. He also said that sometimes because of work he could not attend rallies. He said that more recently however, with the elections, and declining conditions in Venezuela, and on hearing from his parents about the situation, he could not hold back, which explanation, given his struggles with mental health and propensity to speak out about injustices, I am willing to accept as plausible. I also note that in the interim his “speaking out” seems to have also been focused on other areas such as LGBT asylum seekers and work related issues. After the hearing the applicant provided more than 20 pages of additional social media posts, with some translations, seemingly spanning from October 2023 to August 2024, which among other things, relate to Venezuelan asylum seekers, leaders of opposition political parties and protests, and ridicule or criticise Maduro and his government and the election results. I accept the applicant has made these posts on his social media accounts although as was noted at hearing his social media accounts are private and I do not accept these posts are publicly available.

2. While the applicant’s involvement with AD was at the lower level and I do not accept it attracted the adverse attention of the government or those working with them at that time, he was actively involved with AD in the past, the leading political opposition group at that time.[16] While the applicant’s political activities against the Maduro government since being in Australia have been limited and sporadic, and mostly more recent, the evidence indicates more recent publicly available material to show that the applicant is opposed to the Maduro government and it cannot be discounted that this has been accessed by the Maduro government or those working with them. The evidence also indicates the applicant is vocal about matters he is passionate about, including where he perceives an injustice or need, and that he has a propensity to take on more prominent or visible roles, as evidenced by his public and vocal involvement with LGBT asylum seeker groups in Australia, including his involvement in the photographic exhibition, and his interview with [News source] about him having travelled from Venezuela and sought asylum in Australia because of his political views. At hearing the applicant also said that the “Greens” were interested in him, suggesting they had been in talks, and he mentioned the name of a woman he claimed to have spoken with, although there is no evidence of this having progressed any further. The applicant appears to have a strong propensity to speak out against perceived injustices, sometimes to his detriment. On the evidence I am willing to accept that if the applicant were to return to Venezuela, there is a real chance he would be vocal and public about his opposition to the Maduro government, that these views are genuinely held, and that there is publicly available information to show he is opposed to the Maduro government and is seeking asylum in Australia on account of his political profile.

   [16] Immigration and Refugee Board of Canada, ‘Venezuela: The Democratic Action (Acción Democrática) political party, including ideology, objectives, structure, key positions, and leadership; requirements and procedures to become a member; appearance of membership cards; treatment by authorities (2013 – June 2017), VEN105828.E.

3. While I have considered all the submissions and supporting documents provided by the applicant and his representatives to date, including the country information[17], in assessing his claims, I have placed more weight on the more recent publications, including recent articles about the evolving conditions, as well as reports by Amnesty International (AI), Human Rights Watch (HRW), Freedom House (FH), United Nations Human Rights Council (UN), Immigration and Refugee Board of Canada (IRBC) and the United States Department of State (USDOS).[18] While a limited selection of other Tribunal decisions by another Tribunal member were provided in support of the submission that those who have expressed political opinions against Maduro are owed protection by Australia, Tribunal decisions very much turn on the individual facts in each matter, have no precedential value as such, and apart from some very general similarities, these decisions appear to have no relationship to the applicant, and I place limited weight on them.

   [17] While I took what I could glean from material provided in a language other than English where no English translation was provided, I was otherwise unable to make out the contents of the material.

   [18]Aljazeera, ‘Venezuela defence minister pledges ‘absolute loyalty to Maduro’, 6 August 2024; BBC, ‘Venezuelans fear for relatives after mass arrests’, 2 August 2024; Aljazeera, ‘Protestors rally in Venezuela’s capital as post-election crisis persists’, 17 August 2024; Ana Vanessa Herrero, ‘Raid, arrests at Venezuelan gay club provoke fears of new persecution’, 4 September 2023; Aljaeera, ‘Mass arrest at LGBTQ club in Venezuela prompts outcry over discrimination’, 10 August 2023; Freedom House, 'Freedom in the World 2024 - Venezuela', 29 February 2024, 20240301142940; USDOS, Country Reports on Human Rights Practices for 2023 - Venezuela', 22 April 2024, 20240423125243; Amnesty International, 'State of the Worlds Human Rights 2024', 23 April 2024, 20240424131540; Human Rights Watch, 'Human Rights Watch World Report 2024', 11 January 2024, 20240112083455; United Nations Human Rights Council, 'Report of the independent international fact-finding mission on the Bolivarian Republic of Venezuela (Advance unedited version)', 17 September 2024, 20240918111412.

4. USDOS reports that despite constitutional and legal protections in Venezuela for freedom of expression, political discrimination and peaceful assembly, due process, prohibition on torture, and the inviolability of the home and personal privacy, among other things, these are reportedly disregarded and/or not respected by authorities. It notes numerous reports of killings by Maduro agents, including “colectivos” (Maduro aligned armed neighbourhood gangs) in 2023, with most victims comprising young men. USDOS notes NGOs and media reports of Maduro aligned law enforcement and the military regularly beating and humiliating suspects during arrest. The report also indicates that Maduro representatives do not follow due process when detaining individuals, for example, the police often detain individuals and raid homes without a warrant and hold detainees for extended periods without criminal charge. It notes credible reports of Maduro aligned security forces regularly torturing and abusing detainees, with some NGOs claiming this includes sexual and gender-based violence. It reports of impunity for security forces as a significant problem and that victims do not report such crimes due to a fear of retribution. USDOS and AI report conditions in most prisons are harsh and life threatening.

5. USDOS reports that Maduro representatives use various methods to intimidate opponents, particularly opposition political parties, resulting in significant repression to freedom of expression, a climate of fear, and self-censorship. It reports of the use of the judiciary to intimidate and prosecute critics, commonly on charges of conspiracy, terrorism, and treason, so that arrests can be made. USDOS and HRW report that between 2014 and 2023 some 15,80 people had been arrested for political reasons. FH and HRW report there are roughly 270 political prisoners in Venezuela out of a population of some 28 million[19]. As was noted at hearing examples provided by USDOS of the sorts of people arrested include those alleged to have been involved in a coup against Maduro, political leaders, journalists, and organising campaign staff members of opposition groups. Even after release these former political prisoners reportedly continued to be subject to movement restrictions and court appearances. USDOS reports Maduro representatives also have a pattern of banning key opposition figures from participating in the political process and denying them equal access to the mostly government-controlled media. USDOS reports that insulting the president is also a crime punishable with up to 30 months imprisonment and insulting lower ranking officials attracts lower penalties. Other laws are reportedly discriminately used to silence freedom of expression of activists, journalists, and critics of Maduro or his government.

   [19] Venezuelan Population, (August 2024) worldometer, < >

   USDOS reports that state surveillance is rampant. It reports that a 2015 public decree regulates the right to assembly and provides armed forces with the authority to control public order, and that protests and marches require advanced authorisation and are prohibited in certain zones. FH reports that multiple human rights groups have documented the use of torture and forced disappearances to control dissidents and that colectivos routinely commit acts of violence against citizens and carry out government backed voter intimidation efforts, including to prevent and repress protests. FH reports that violent clashes between protestors and security forces are known to occur, and that the authorities’ use of excessive force to break up protests has increased in recent years. FH reports that discontent with the Maduro government is widespread in Venezuela. As was noted at hearing there were thousands of protests in 2023. AI reports that in 2023 there were 6,956 protests, equivalent to 19 per day, with 80 percent demanding economic and social rights. The government is also reported to restrict, disrupt, and censor online activity, so as to control the dissemination of content deemed undesirable. Those sharing so called undesirable information publicly online reportedly face potential reprisals including arrest and criminal sanctions. It is reported that China provides Maduro representatives with the technology to monitor citizens’ social, political, and economic behaviour through the identity homeland card, or carnet de la patria (IHC). The IHC is reportedly required to obtain social services, including pensions, medicines, food baskets, and subsidized fuel. It reports citizens have little choice but to obtain and use an IHC which the applicant has also submitted he is opposed to. Based on the country information noted above, particularly USDOS, I accept that if a person is detained by authorities on account of an adverse political profile that they face a real chance of serious harm.

6. FH reports that regional observers generally considered the 2018 presidential elections to be illegitimate, that Venezuela did not function as a representative democracy, and that corruption was rampant. USDOS and FH report that in exchange for the US easing sanctions, in October 2023 an electoral roadmap designed to ensure key guarantees (such as to allow banned opposition figures to contest the elections and allow independent election observers to monitor the polls) in the lead up to the 2024 presidential elections was signed by the government. However, when the primary election to select a presidential candidate to oppose Maduro in the upcoming election was eventually held, both USDOS and FH indicate opposition primary candidates and their supporters were attacked, harassed, or intimidated, by pro-Maduro groups, some were banned on spurious grounds, and warrants for arrest were issued for some. FH also reports that millions of eligible citizens who left Venezuela due to the economic crisis had not yet been allowed to update their voting locations in the lead up to the 2024 elections. This is consistent with the applicant’s claim at hearing about the administrative roadblocks he experienced with the embassy that meant he was unable to cast his vote in the 2024 Venezuela presidential elections.

7. The UN report and various other publications document more recent developments in Venezuela. [20] They report that following the August 2024 elections, Maduro claimed victory. However opposition party leaders contested this, claiming they had proof Maduro was defeated, posting some of their claimed evidence online, and they called for mass protests. Maduro has responded accusing opposition leaders of staging a coup, arresting some including Maria Oropeza, who the applicant supports, announcing criminal probes against others, and some are in hiding or seeking protection in other countries. The US is reportedly of the view that Maduro’s allegations against the opposition are unsubstantiated and that these arrests are an undemocratic attempt to repress political participation and retain power. There have reportedly also been international calls from the European Union and 22 other countries for more transparency in relation to the election results, and an impartial verification. Columbia, Mexico and Brazil (traditionally allies) have reportedly called for new elections in Venezuela and a detailed vote breakdown. The Carter Center has reportedly asserted that the election did not meet international standards of electoral integrity and cannot be considered democratic. Despite Maduro’s assurances to date it is reported that no results have been published with Maduro blaming technical issues. What has ensued are mass protests in the streets of Venezuela calling for transparency, despite the risks, with ordinary civilians describing the protests as ‘incredible’ and reporting how everyone is communicating via social media to organise protests, even in Petare, a former stronghold for Maduro. The government’s response to this has reportedly been two pronged. Firstly, there has been a series of detentions and arrests of key opposition figures, human rights defenders including lawyers, and activists, some of whom have also had passports revoked or been detained at airports. Friends of one detainee (who was a lecturer) said the detainee had never participated in any political events. Authorities have reportedly been going door to door to detain those with links to the protests or opposition groups in an operation named by Maduro as “operation tun tun” (or operation knock knock).  Secondly there have been massive and indiscriminate arrests of protestors who have taken to the streets. There have reportedly been more than 2,000 arrests, including of children. The government has reportedly said it will build additional high security prisons to house detained protestors and Maduro has reportedly bragged that new prisons will feature re-education and hard labour camps, although this does not appear to have materialised to date. It is also reported that at least 25 people have been killed and 200 injured in post-election protests. There are reports of authorities marking the homes of protestors with a black “X” (with reports indicating many houses in some areas have been marked) and of breaking into protestors’ homes and arresting them, presenting video footage of them at a protest rather than an arrest warrant when arresting them. Maduro is also reported to be encouraging citizens to report those involved in political activities to the government. There are reports of citizens being stopped in the street by security officials to have phones checked for social media posts and messages (and that some are arrested because of what is found on their phones). Reports are that people are deleting their social media histories, removing messaging “apps”, or simply leaving their phones locked away at home to avoid the risk. These operations are reportedly designed to elicit fear and thwart dissent. The reports indicate similar rounds of intense protest and repression in the past in Venezuela, including in 2014, 2017 and 2019 in response to heightened periods of political and economic turmoil.

   [20] BBC, ‘Venezuela security forces swoop on activists as repression worsens’ 9 August 2024; Aljazeera, ‘Venezuela defence minister pledges ‘absolute loyalty to Maduro’, 6 August 2024; BBC, ‘Venezuelans fear for relatives after mass arrests’, 2 August 2024; Aljazeera, ‘Protestors rally in Venezuela’s capital as post-election crisis persists’, 17 August 2024; BBC, ‘Venezuela security forces swopp on activists as repression worsens’, 9 August 2024; CSIS, ‘A question of staying power: is the Maduro Regime’s repression sustainable’, 21 August 2024;

8. The country information above indicates that in the current heightened climate in Venezuela, following the very recent and controversial election, key opposition figures, human rights defenders including lawyers, and activists, are at risk of arrest, detention, and of having their movement restricted, and that if detained in these circumstances they face a real chance of serious harm. It also indicates widespread disapproval and mass protests in Venezuela calling for transparency in relation to the recent elections and that in an effort to thwart this dissent Maduro and his representatives are engaging in the indiscriminate arrest of protestors, that a relatively small number have been detained, injured or killed in the post-election protests to date, that there are reports of protestors being taken from their homes after being videoed attending protests, that authorities are indiscriminately checking people’s phones for offending material and may be arrested if such material is found, and that citizens are being encouraged to report one another to authorities. Given the widespread disapproval of Maduro these heightened conditions may reach a tipping point and improve, although at this juncture the country information suggests an escalation in Maduro’s repressive operations into the near future. The country information indicates that if detained in these circumstances people face a real chance of serious harm.

9. Importantly, since the decision at the primary stage, the conditions in Venezuela have materially deteriorated, and the applicant provided a large volume of supporting information at the review stage. As already noted, on the evidence I accept the applicant has had some historical involvement with AD, including association with more high-profile people or members, that there is publicly available information to show he is opposed to the Maduro government, and seeking asylum in Australia on account of this, and it cannot be discounted that the Maduro government has accessed this publicly available material. I am satisfied that based on the applicant’s cumulative profile he faces a small but real chance of being detained at the airport on return or later in connection with protest activities which as noted above I accept there is a real chance he would engage in on return, and that if detained in these circumstances, he faces a real chance of serious harm, namely significant physical harassment and/or significant physical ill-treatment, particularly given his increased vulnerability as someone who suffers anxiety and depression, and as a gay man, given reports by USDOS, AI, and other publications such as by Aljazeera, of an more recent escalation in the harassment of this cohort, including by authorities. I am satisfied that this would be for an essential and significant reason in s 5J(1)(a), namely his political opinion, and that given his profile, this conduct would be systematic and discriminatory. I am satisfied the applicant has a fear of persecution and that he faces a real chance of harm amounting to persecution within the meaning of s 5J(4). USDOS and FH report of serious harm by security forces, colectivos, and other Maduro aligned actors, and serious problems with the independence of the judiciary. I am satisfied that there are no effective protection measures and that the feared persecution relates to all areas of Venezuela as it is the Maduro government, authorities, and those working with them that the applicant fears. As the harm stems from the applicant’s political beliefs the operation of s 5J(3) is precluded by s 5J(3)(c)(iii). I am satisfied the applicant has a well-founded far of persecution within the meaning of s 5H(1)(a).

1. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   DECISION

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

   Gabrielle Deal
   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.

   …