1917564 (Refugee)

The Administrative Appeals Tribunal considered the protection visa application of a Venezuelan national. The applicant arrived in Australia in May 2016 and lodged his protection claim on 31 July 2018. The dispute centred on whether the applicant had a well-founded fear of persecution for reasons of his political opinion and membership of a particular social group, specifically returnees to Venezuela.

The Tribunal was required to determine if the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), meaning he was a refugee due to a well-founded fear of persecution. This involved assessing whether the applicant's fear of harm upon return to Venezuela was genuine and if that harm was for reasons of political opinion or membership of a particular social group, and if such harm constituted serious harm. The Tribunal also had to consider whether effective protection measures were available to the applicant in Venezuela and whether he could reasonably modify his behaviour to avoid persecution.

The Tribunal found that the applicant had a well-founded fear of persecution for reasons of his political opinion, stemming from his past involvement with opposition groups like Voluntad Popular and Primero Justicia, and his anti-Maduro stance. Furthermore, the Tribunal accepted that the applicant would face serious harm as a returnee to Venezuela, citing the severe humanitarian emergency, including food and medical shortages, and the government's repressive actions against protestors and returnees. The country information indicated that returnees face detention in overcrowded and unsanitary conditions, lack of basic necessities, and mistreatment by authorities and pro-government colectivos. The Tribunal concluded that the harm feared was systematic and discriminatory, and that the applicant would be unable to modify his behaviour to avoid this harm without violating fundamental aspects of his identity or conscience. Crucially, the Tribunal found that no effective state protection was available to the applicant in Venezuela.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the *Migration Act 1958* (Cth), finding that Australia has protection obligations towards him.