1919848 (Refugee)

1919848 (Refugee) [2021] AATA 5137 (1 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1919848
COUNTRY OF REFERENCE:                   Venezuela
MEMBER:Nicole Burns
DATE:1 December 2021
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 01 December 2021 at 5:06pm

CATCHWORDS
REFUGEE – protection visa – Venezuela – political opinion – membership and activity in local government administration and opposition political parties – threats and attack by government supporters – mental health – colleagues and family members jailed or left country – detailed, consistent and plausible evidence – country information – economic and political conditions, and status of returnees during COVID-19 pandemic – real chance of persecution in all areas of country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Venezuela, applied for the visa on 16 August 2017. The delegate refused to grant the visa on the basis that they were not satisfied the applicant had a well-founded fear of persecution or faced a real risk of significant harm in Venezuela under s 36(2)(a) and s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal via video link on 9 November 2021, where she gave evidence and presented arguments about the issues in her case. She was assisted in giving evidence by an interpreter in the Spanish and English languages.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
The issues in this case are whether Australia has protection obligations with respect to the applicant. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision (Attachment B).
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 (Attachment B).
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background and nationality
The applicant is a [age]-year-old woman from [City 1], Venezuela who came to Australia to study [in] December 2015. Her father remains in Venezuela whilst her mother and [sisters] currently reside in [Country 1].
The applicant provided to the Department copies of her Venezuelan passport and claims to be a national of Venezuela. On this basis, and given the delegate had no concerns about the applicant’s claimed identity or nationality, the Tribunal accepts the applicant is a national of Venezuela and has assessed her protection claims accordingly.
Claims and evidence
In summary, the applicant claims to fear persecution at the hands of the Maduro government on return to Venezuela due to her work for [a] town council (which is considered anti-government) and support for opposition political parties in the lead up to and following the October 2012 elections.
Initially the applicant set out her claims in her protection visa application. She stated that in March 2012: she joined the mayor’s office of [the] municipality; she became involved in pro-democracy activities; and was appointed as the representative of two opposition political parties, [Party 1] and [Party 2]. As a result, she received threatening phone calls and text messages. Additionally, she was attacked by pro-Chavez colectivos during a gathering [in] October 2012. The applicant also states that in October 2012 she was the victim of identity theft: she received an email from CADIVI (Venezuela’s foreign exchange administration board) that she was being investigated for ‘capital flight’. She tried to rectify the situation but the officer at CADIVI did not help, because she was an opposition supporter.
The applicant provided several letters of support to the Department from representatives of the [council] and other opposition groups in Venezuela (among others), listed as an attachment to this decision (Attachment A).
The delegate found fault with several of these letters and rejected many of them. Further, she found aspects of the applicant’s oral evidence unconvincing. The delegate accepted the applicant worked at the [municipality] from [March] 2012 to [December] 2013 (based on the employment certificate provided) but nothing more, and did not accept she received threats due to her support for opposition parties, nor that she was attacked at the [October] 2012 gathering. The delegate therefore found the applicant did not face a real chance of persecution from the government based on her anti-government political opinion on return to Venezuela (or a real risk of significant harm) and refused to grant the applicant a protection visa.
On review, the applicant provided a statutory declaration to the Tribunal dated 4 November 2021, in which she expands upon her background and protection claims, addresses some of the delegate’s concerns, and provides an update about her situation (and that of her family members who have left Venezuela).
The representative provided a comprehensive written submission to the Tribunal in which he sets out the applicant’s relevant background, claims and country information.
At the Tribunal hearing the applicant described her background, reasons for leaving Venezuela in 2015 and fears upon returning there now, summarised as follows. She said she was born and grew up in [City 1]. Her parents separated when she was young and she was brought up by her mother, who was a [Occupation 1]. She has [sisters]. The applicant completed a bachelor’s degree at university in around 2009/2010. Then she worked in sales, and for [a] company.
The applicant started work with the [council] – one of [number] municipalities in [City 1] - starting initially as a casual in December 2011, helping with [activities]. This turned into a full-time position as a [Occupation 2] for the council’s [specified division] from around March 2012. Her boss was [Ms A], one of the councillors (and president of her division). [Mr B] was the mayor at the time.
The applicant said her role with the council was largely an administrative one: managing the budget, coordinating logistics, coordinating transport, helping organise meetings and events, and assisting [Ms A] as required (for example). After around four or so months in that role, and in the lead up to the October 2012 elections, the applicant was given more and more responsibilities, including managing a team of around 15 staff, some of whom were paid, others as volunteers.
The applicant said she also supported opposition parties in the lead up to the elections, such as helping organise events, door knocking and disseminating information. She did this along with her day-to-day administrative work at the council. She explained that around 90 per cent of people who work for the councils have some involvement with political parties. Of the [councils] in [City 1], [some] (including [Municipality 1], where she worked) were considered anti-government, whilst [others] were considered pro-Chavez (who was president at the time). She was happy to support the opposition parties – who came together as a coalition of sorts so as not to split the vote and to pool resources – as she was against socialism (the type Chavez promoted), brought up believing people should work hard and keep what they have been able to acquire.
Additionally, the applicant told the Tribunal that her mother had been involved with [Party 2] when the applicant was young and she often took her to meetings and/or events. Therefore when she got the position at the council it was easy for her to support the opposition parties. The main parties she supported were [Party 1] ([Ms A] was a key member), and [Party 2] because of her past association with it and because most of the [councillors] were [Party 2] members and/or supporters.
The applicant explained that [Party 2] is one of the oldest political parties in her country and it has had a lot of involvement with social and religious activities (as well as political ones) over the years. In contrast, [Party 1] is newer, with leaders who are relatively young with ‘fresh ideologies’.
The applicant said after the October 2012 elections – which Chavez won – several opposition parties alleged voter fraud and called for a recount of the votes. She helped agitate for the recount, including by organising public meetings in different areas across [City 1]. In one such meeting held [in] October 2012 in [Suburb 1] – a pro-Chavez suburb – the applicant helped organise logistics, water, t-shirts and opposition party speakers. The meeting began around 11am and at around 2pm, when the applicant was at the back of the stage, several Chavez supporters (known as colectivos) arrived on motorbikes, started to yell out ‘stuff’, and tried to break up the crowd. She then heard gunshots – someone firing bullets into the air – and people started to run, as did the applicant. However the colectivos grabbed her by the hair, dragged her to the ground and started kicking her. When someone pushed them off her she managed to escape, following others who ran into a nearby school. There the school principal and teachers administered first aid to her and others who were injured. The applicant waited for a couple of hours before returning home. She was bruised and scratched in many parts of her body, and in a lot of pain. She spent a few days in hospital and a month and a half off work, on medical leave. The hospital issued her ‘disability certificates’ which her mother sent to her in Australia around the time she applied for protection (as submitted to the Department) reflecting her medical leave from work. The applicant clarified this is what she meant in her visa application; that is, she was absent from work for a month and a half, not that she spent a month and a half in hospital.
The applicant said her mental health deteriorated after this incident: she had difficulty sleeping, had nightmares when she did, found it hard to concentrate at work and started having panic attacks. She was upset not only by the attack itself but knowing the men who attacked her would get away with it because they were with the government and no one would do anything; if she went to the police she would be put in jail. She saw a psychologist and spoke to a priest a few times in Venezuela to help process what had happened.
The applicant said because of her mental health issues she started working from home more and shifted from full time contract work to casual work with the council from December 2013. This is reflected in her employment certificate, which indicates that she worked until December 2013. However, she remained working on a casual basis with the council thereafter, largely from home until shortly before she came to Australia in late 2015, with the exception of a three-month break in [Country 2] sometime in 2014.
The applicant told the Tribunal in the few months prior to the October 2012 elections when she became more active in support of several opposition parties she started receiving threatening phone calls, text messages, and notes delivered to her mother’s apartment, including one attached to a plastic bag containing faeces. The callers told her to stop what she was doing or else; once they indicated they knew where her younger sister attended school. Scared, she spoke to [Ms A] about the threats, who advised her to organise a driver to take her sisters to and from school, which she did. The threats continued after the election but not as frequently. They stopped after she changed her mobile phone number, sometime in 2013 or 2014.
The applicant said she was also the victim of identity theft in Venezuela and unable to rectify the situation due to, she believes, her support for opposition political parties. That is when she decided to take a short break and visit [Country 3] in 2013 and exchange some bolivars for US dollars – a process that requires government permission in Venezuela through the relevant office, then called CADIVI. She discovered she was blocked in the system due to allegations of illegal money exchange practices (which she denies). An email had been sent to her in late 2012 from CADIVI advising of such, but because it went to an email address she had not used for years, she did not see it and was not aware of the issue until 2013. When she visited CADIVI and showed her ID card and passport, the official indicated that her name and ID number matched that of the person who had sent money abroad (to [Country 4]), but the photograph was different. She was advised to obtain a declaration from the police that her ID was stolen and provide her fingerprints to show she is who she claims to be, and then return to the CADIVI office. However, when she did return a few months later with the relevant proof, the officer laughed and told her that is the price for being a traitor.
The applicant explained these kinds of things happen often in Venezuela: the government does not directly stop people from leaving (like they do in Cuba for example), in order to keep the façade that they are a democracy internationally, yet find other ways to make life difficult for people like the applicant, such as blocking their ability to obtain foreign currency and/or significantly delaying issuing them a passport. The applicant said when she obtained a new passport in 2015 she had to pay money to a middleman (who knew someone in the relevant office) because she was unable to do so through the online system.
The applicant said when she first came to Australia she was planning to study, then return to Venezuela. However, when she found out that [Mr B], who was the mayor of [the] council when she worked there (and a known opposition supporter), had been issued a capture order by the Venezuelan authorities (and one of the founders of [Party 1], [Mr C], had been imprisoned for political reasons), she decided it was too risky to return and applied for protection. The applicant noted that most of the people who she worked with at the council have left the country and one man is presently in jail in Venezuela. She said [Mr B] managed to flee to [Country 5].
If she has to return to her country the applicant said she is fearful the government may put her in jail because of her past connections and support for the opposition, and also because her ideology is different to theirs, and remains so. She would be politically active on return in some way, as she would not be able to do nothing knowing there is something very wrong with the current Venezuelan government.
For around a year after arriving in Australia the applicant said she kept in touch with some of her contacts in Venezuela and posted about political developments and issues on social media. Nowadays that has dropped off, although she keeps in touch with [Ms A], who, after working for [an organisation], has returned to [the] municipality. She had planned to ask [Ms A] to be a witness at the hearing, however her husband died a week ago and the applicant considered it would be too much of an imposition. The applicant said [Ms A] helped her obtain several letters of support she provided to the Department.
The applicant said she is fearful the government knows she (and others) signed a petition which was to be tabled to the UN (among others) calling for a recount of the votes in the October 2012 election. She described the six month or so period after the election as ‘very messy’, as they pushed for a recount. During that time, Chavez fired a lot of people who had held official positions working for companies mainly controlled by the government. Many were supposed to be government aligned, but behind the scenes supported the opposition. Many people also had their farms and/or houses expropriated by the government. This is why she is sure the government had access to a database of people supporting the recount.
Additionally, the applicant believes her risk profile would be increased as someone returning from spending several years in Australia, which is considered a capitalist country, and against the Venezuelan government’s beliefs. In addition, Australia does not recognise the current Maduro government.

The applicant also gave an update about her immediate family members’ situation since she left Venezuela. She said sometime in 2017 one of her sisters – then aged around [age] – was attacked by men near her mother’s apartment in [City 1], beaten and had her mobile phone stolen. Whilst officially the incident was considered a robbery, the applicant said one of her sister’s attackers was known in the neighbourhood as someone involved with the government colectivos. Her mother became frightened, and made plans for the applicant’s sisters to leave the country. That year they moved to [Country 1] with their stepfather, who is [a Country 1 national], where they are presently. The applicant’s mother’s plan to join them was delayed because her sister’s husband was killed in a violent attack (unrelated to the applicant and/or politics) and her mother stayed with her for some time to offer emotional support. Then COVID-19 struck and her mother was unable to leave Venezuela due to a shortage of flights. Desperate to join her younger daughters, particularly as the applicant’s youngest sister had started having serious behavioural problems in [Country 1], the applicant’s mother crossed the border to [Country 4] in 2020 where she stayed for a few months before flying to [Country 1]and reuniting with her daughters.
In her statutory declaration and oral evidence to the Tribunal, the applicant said another reason she thinks she was targeted by the government and/or their supporters in the past in Venezuela is because she and her family had lived in a less wealthy area of [City 1] before moving to [Municipality 1], one of the best suburbs in [City 1]. She states that people from [Municipality 1] are considered anti-government by government supporters even if they are not politically active.
Findings about the applicant’s past experiences and profile in Venezuela
The Tribunal accepts the applicant’s claims about her family composition, background, studies and work experience in Venezuela. It accepts she is from [City 1], where she completed high school and university studies. It accepts she worked in sales and for [a] company immediately after university. The Tribunal also accepts she then worked for [Town 1] municipality: on a casual basis from late 2011 until around March 2012; on a full-time permanent basis (as a [Occupation 2] in [a specified] division) from March 2012 to December 2013; and on a causal basis (in the same role) from December 2013 to the end of 2015 (apart from a three-month holiday in [Country 2]). Her oral evidence on these matters was detailed, spontaneous and consistent with her written claims to the Department and Tribunal. She was able to describe the structure and functions of the council, her role and the broader political environment in which she was working at the time. Evidence has been provided confirming her work with the council including an employment certificate (for the period she was full time on contract) and a letter from her then supervisor and councilwoman, [Ms A]. At hearing she explained how she obtained the various letters and documents provided, most of which she did from Australia in preparation for applying for protection either through her own connections and/or with [Ms A]’s help. This is why the dates or several of the letters reflect that period (around mid-2016), not necessarily when the events they describe took place (several years before).
The Tribunal also accepts the applicant’s claims to have supported several opposition parties around this time, in the lead up to the October 2012 elections, working closely with [Ms A], who was also a [Party 1] board member. The applicant’s activities were varied, including disseminating information among the public to try and counter disinformation generated by the Chavez government at the time. She managed a small team of volunteers and paid workers to help carry out the activities. The Tribunal accepts the applicant received threatening phone calls, text messages and notes as a result, presumably from Chavez supporters, in an attempt to intimidate her to stop her support for the opposition. It accepts these threats continued to some extent after the election – noting the applicant then changed her focus to push for a recount of the votes – and stopped after she changed her phone number in either 2013 or 2014. Country information confirms that there was political violence leading up to the October 2012 elections.[1] In 2011, the International Crisis Group reported that colectivos combining political and criminal activities, including armed actions against opposition targets, operated unchallenged and with broad impunity.[2]
[1] Merco Press, ‘Political Violence in Venezuela escalates as Election Day, October 7, gets closer’, 13 September 2012.
[2] International Crisis Group, Report No 38, ‘Violence and Politics in Venezuela’, 17 August 2011.
Additionally the Tribunal accepts the applicant (and others) was attacked by colectivos, during a post-election meeting in [Suburb 1], a pro-Chavez suburb in [City 1], [in] October 2012. As part of her evidence, she provided a statement from [Ms D], who the applicant explained was the [Occupation 3] at the school where she and others ran to and took shelter on that day (and who gave them first aid). That is why [Ms D] was able to remember the applicant, as indicated in her letter written several years after the incident (when the applicant contacted her from Australia).
The delegate found it unlikely the applicant worked for so many opposition parties as claimed, and found that if she received genuine threats, she would have stopped work at the municipality. The applicant explained to the Tribunal that she worked for several opposition parties in the lead up to the election because they had pooled their resources and had combined many events in order to reach more voters. The applicant explained that whilst she helped support many opposition parties at the time, she primarily supported [Party 2] and [Party 1], given most of the councillors supported [Party 2] and [Ms A]’s close links to [Party 1]. This makes sense and, in the Tribunal’s view, is entirely plausible. Country information confirms that many opposition parties ran as part of a coalition – Coalition Mesa de la Unidad Democrática (Democratic Unity Roundtable (MUD)) – including [Party 1] and [Party 2], at the October 2012 elections[3].
[3] European Parliament, Directorate-General for External Policies, Policy Department, ‘Presidential elections in Venezuela: Towards 20 years of Bolivarian Revolution?’, DG EXPO/B/PolDep/Note/2012_320, 26 October 2012, europa.eu.
With respect to why she continued to work at the council (and support opposition parties) after receiving threats, the applicant explained that she was scared by the threats, and asked [Ms A]’s advice, who indicated that unfortunately such tactics by Chavez supporters were not uncommon and suggested some ways to mitigate risks (for example, hiring a driver for her sisters to go to school). Despite the threats the applicant decided to continue her work, hopeful they would be able to defeat Chavez in the election, although it did not come to pass. The Tribunal notes part of the government strategy at the time was to intimidate and weaken opposition supporters. It accepts she was affected and worried by the threats, but chose to continue given her commitment to the opposition parties (and to the work of the council) and that she did change her work patterns shortly after being attacked by colectivos [in] October 2012, by primarily working from home. Taking into account these considerations, the Tribunal does not consider the fact the applicant continued to work at the council (and support the opposition) undermines her claims to have been threatened.
The delegate expressed concerns with several of the letters of support the applicant had provided to the Department, including because some were not dated when the events they recorded allegedly happened. As noted earlier, the applicant explained the dates reflect when the letters/documents were written after she contacted the authors of the letters – many whom she had maintained contact with – in around 2016, not at the time of the events they describe. This makes sense to the Tribunal and adds to their veracity. In her oral evidence the applicant was able to clearly explain who the authors of the letters were, how she knew them and when and how she obtained the letters. For example, she came to know the priests and the archbishop either through her family (noting she was a practising Catholic) and/or through her work at the [Town 1] municipality in the past, as political activities often took place alongside social and community ones, as is common in Venezuela. She explained that in Venezuela, the church (largely) supported the opposition after witnessing human rights abuses by the Chavez government against protesters.
The delegate questioned the veracity of some of the other letters the applicant provided because they read as if the applicant was still an active member (of [Party 2] for example[4]) since 2012 even though she had been in Australia since May 2015. At hearing the applicant said she thinks this is the way the letter was written, with no end date. The Tribunal considers this a plausible explanation. It also could be attributable to translation issues. This does not cause the Tribunal any significant concerns, particularly given it found her oral evidence about her support for opposition groups (and reasons for doing so) considered and credible.
[4] In the letter from [Mr D].
In relation to the letter from [Ms F], [Party 2], dated 15 June 2017, the delegate noted the signature appears to have been written over another signature. At hearing the applicant explained that the author’s pen had run out, and she needed two different pens to complete the signature. Given the Tribunal found the applicant a credible witness it accepts her explanation for why the signature appears as such on that letter.
The Tribunal also accepts the applicant was blocked by the Venezuelan government’s foreign exchange authority, CADIVI, in late 2012, based on allegations that she had illegally exported currency in what appears to be a case of identity theft. It accepts she only found out about this issue in 2013 when she tried to exchange some currency (prior to an overseas trip) despite being sent an email earlier, which she did not read because it was sent to an inactive email account. This explains why there was a delay between being advised of the issue and the action she took to try and rectify the situation, including obtaining police reports, her fingerprints, and corresponding interactions with CADIVI. The Tribunal finds this explanation plausible, particularly given her claims relating to CADIVI are not directly core to her protection claims, and fabricating such matters would not, in the Tribunal’s view, add significantly to her case.
Further, the Tribunal accepts that despite undertaking the necessary steps to rectify the situation with CADIVI, the officer she dealt with refused to do anything. This may have been because of her links to the opposition and/or work with the [Town 1] municipality as claimed, or due to incompetence/indifference.
The Tribunal also accepts the applicant’s evidence that her [sisters] moved to [Country 1] in 2017 and her mother joined them in 2020. It accepts one of her sisters was attacked and robbed in 2017 in [City 1], which was the catalyst for her mother to organise for them to leave Venezuela. It accepts her sister’s assailant was a known colectivo, however, the motivation for the attack remains unclear and it may have been simply to obtain money. On the limited information before it, the Tribunal does not accept the applicant’s sister was targeted because of the applicant. It accepts she has subsequently moved to [Country 2] along with her sister, joined by their mother last year.
Are the applicant’s fears of persecution well founded?
Given these findings about the applicant’s past experiences and profile in Venezuela, the Tribunal has gone on to consider if her fears of persecution on return to her country are well founded.
It is submitted that the applicant is owed protection in Australia based on her actual anti-government political opinion, as a person who worked for a known anti-government municipality/town council and as an organiser for the opposition. She supported the MUD coalition, including [Party 1] and [Party 2]. As a consequence, she was threatened by supporters of Hugo Chavez and the United Socialist Party of Venezuela (PSUV) in the lead up to and following the October 2012 elections. It is also submitted that she fears persecution on return to Venezuela as a member of a particular social group of failed asylum seekers, with the representative referring to country information indicating that many returnees during COVID-19 have been considered ‘bioterrorists’, detained and experienced ill treatment and poor conditions.
At hearing the representative submitted – as noted in his written submission to the Tribunal – that the situation for opposition supporters has worsened since the applicant left Venezuela, with the situation deteriorating significantly, politically and economically, over the years. He stated that there have been various incidences involving the weakening of democratic institutions and an increased risk for opposition/anti-government supporters such as the applicant. Further, the government’s discriminatory response to returnees during COVID-19 is a concern, with the increasing use of national ID cards to manage food rations and medical treatment giving rise to significant concerns about the use of a card with a QR code to monitor people’s voting choices.
The representative stated that the applicant’s experiences with CADIVI are a clear example of the way government agencies in Venezuela can manipulate the allocation of critical resources, including foreign exchange. In such a context, including the humanitarian disaster in Venezuela, those who have access to US currency can live differently to those who can only access Bolivars. In the applicant’s case, her inability to access US dollars (even if she has the money), could lead to serious harm due to an inability to buy essential goods, he submitted.
For the reasons that follow, the Tribunal finds the applicant faces a well-founded fear of persecution on return to Venezuela from the government and/or its supporters for reasons of her (actual and/or imputed) anti-government political opinion based on her past work for the [municipality] and support for various opposition political parties (including [Party 1] and [Party 2]) and likely future political activity.
The Tribunal has accepted the applicant was threatened in the past due to her support for opposition parties and work with the [council] in 2012. According to her oral evidence to the Tribunal, this last occurred sometime in 2013 or 2014. It also accepts she was attacked by colectivos during a post-election public meeting in the [City 1] suburb of [Suburb 1] [in] October 2012. It accepts she did not report the matter to the police, confident they would do nothing – or worse, have her arrested – given the attackers were linked to the government. She did not indicate any follow up threats or harm related to this incident, although the incident did affect her mental health and her sense of security (resulting in her working from home), which the Tribunal accepts.
Although not politically active in Australia, the Tribunal accepts the applicant did keep in touch with some of her contacts in Venezuela and was active on social media for around a year after she arrived before such activities dropped off. This is not surprising given the distance and establishing her life here. The Tribunal accepts she comes from a socially conscious family and given her political activities in the past and extant sense of frustration at the current government, considers she would likely be politically active on return, in some way, if not for the fear of persecution in doing so.
Taking into account these findings and considerations, the Tribunal has had regard to independent country information about the treatment of those who are perceived to hold anti-government political opinions, including risks of participating in anti-government protests in Venezuela, to determine if the applicant faces a well-founded fear of persecution on the basis of her actual or imputed anti-government political opinion on return to Venezuela in the reasonably foreseeable future. It has also had regard to recent political developments and the broader political, security and humanitarian environment in Venezuela, where relevant, as follows.
Reports indicate that Nicolas Maduro, the successor to former President Hugo Chavez (who died in 2013 and reportedly left behind a disorganised economy, high inflation and general poverty experienced by 60% of Venezuelans as of his death[5]), was re-elected as president in 2018 in an election not considered free and fair.[6] Juan Guaido proclaimed himself acting president on 23 January 2019 amid protests over economic issues[7]. During early 2019, a reported 40 people were killed and 850 detained in anti-Maduro protests.[8] Protest activity occurred in Venezuela during 2020, with a wave of protestors calling for improved access to essentials, although reportedly not calling for a change in government, and the involvement of riot police and colectivos used to crack down on protests.[9]
[5] Euronews, ‘Venezuela after Chavez, 8 March 2013 at
[6] Human Rights Watch, ‘World Report 2019, Venezuela: Events of 2018’, at
[7] AFP, ‘Pope fears ‘bloodbath’ in Venezuela, 28 January 2019.
[8] Global News, ‘Over 40 Venezuelans killed, 850 detained in recent anti-Maduro protests: UN’ 29 January 2019 at
[9] The Guardian, Venezuela shortages prompt wave of protests across country’, 30 September 2020 at
Country information from a variety of sources indicates that the Venezuelan government responded with violence to protests which took place across the country several times earlier, in 2017. According to research undertaken by Human Rights Watch (HRW) and the Penal Forum, the government’s response to the 2017 demonstrations involved widespread violence and brutality against anti-government protesters and detainees, and the scope and severity of the ‘repression’ reached ‘levels unseen’ in Venezuela in recent history.[10] Their report stated that in 2017 the government and pro-government groups (such as colectivos) attacked protesters ‘using extreme and at times lethal force, causing dozens of deaths and hundreds of injuries’.[11] Additionally, there were reports of detainees being subject to severe beatings and torture by security forces and armed pro-government groups, and they were not isolated cases[12].
[10] Human Rights Watch and Foro Penal, Crackdown on Dissent: Brutality, Torture, and Political Persecution in Venezuela, November 2017, Ibid.
[12] Ibid.
The Inter-American Commission on Human Rights (IACHR) in December 2017 reported a pattern of ‘very serious violations of the human rights of persons who demonstrate or publicly espouse positions at variance with those of the Executive’, backed by actions of other (judicial and legislative) branches of government. IACHR detailed such acts against dissidents in authority including deputies, mayors and councillors, as well as opposition party leaders[13].
[13] Inter-American Commission on Human Rights, ‘Democratic Institutions, the Rule of Law and Human Rights in Venezuela, Country Report’, on OAS Organisation of American States website, 31 December 2017, p.95.

A July 2019 report by the United Nations High Commissioner for Human Rights on the situation regarding human rights in Venezuela, noted the accelerated erosion of the rule of law and dismantlement of democratic institutions through government-controlled institutions enforcing certain laws and policies over the past decade in Venezuela. These measures are aimed at ‘neutralizing, repressing and criminalising political opponents and people critical of the Government’. The report noted the trend has accelerated since 2016, after the opposition won the majority of National Assembly seats, resulting in increased repression, targeting the political opposition, and steadily reducing the already limited democratic space.[14]
[14] United Nations High Commissioner for Human Rights, Office of the High Commissioner, Report of the UN High Commissioner for Human Rights on the situation of Human Rights in the Bolivarian Republic of Venezuela’, (A/HRC/41/18), 5 July 2019, p.6 [footnotes omitted].
In its most recent country report on the human rights situation in Venezuela, the United States Department of State identifies the most significant human rights issues as being unlawful or arbitrary killings, including extrajudicial killings by security forces, detention and imprisonment of activists with political aims, harsh and life-threatening prison conditions, serious problems with interference of the judiciary and unlawful interference with privacy.[15]
[15] Bureau of Democracy, Human Rights and Labor, United States Department of State, ‘Country Reports on Human Rights Practices for 2020 – Venezuela’, 30 March 2021, p.2, Executive Summary.
In September 2020, an independent international fact-finding mission on Venezuela, established through a September 2019 UN Human Rights Council resolution, found that in 110 cases it investigated of state repression of government opponents, the principal targets were often ‘social activists and political leaders at the forefront of protests, opposition politicians and military dissidents accused of rebellion, plotting coups or other conspiracies’.[16]
[16] Independent international fact-finding mission on the Bolivarian Republic of Venezuela [United Nations] Human Rights Council, ‘Report of the independent international fact-finding mission on the Bolivarian Republic of Venezuela’ (A/HRC/45/33), 15 September 2020, p.2, paragraphs 1 & 2.
The Maduro government has been responsible for extrajudicial executions, forced disappearances, the jailing of opponents, torturing of detainees and a crackdown on protestors. Human Rights Watch reports that persistent concerns include brutal policing practices, poor prison conditions, impunity for human rights violations, lack of judicial independence, and harassment of human rights defenders and independent media.[17]
[17] Human Rights Watch, ‘World Report 2021, Venezuela: Events of 2020’, >
In a February 2021 report, the International Crisis Group (ICG) states that over five million people have fled Venezuela in recent years, the majority to escape economic collapse and humanitarian crisis, but among them are numerous political activists fleeing repression by President Maduro’s chavista government. They state:
The government has, since 2013, egregiously mismanaged the economy and, after mass protests in 2016 and 2017, increasingly denied its opponents power and political space. While the government lacks the formal legal power to banish its political opponents from the country, it has been able to achieve close to the same effect by threatening them with jail time, banning them from public office and otherwise persecuting them. This wave of repression has grown particularly intense since early 2019, when then-National Assembly chair Juan Guaidó asserted his parallel claim to the presidency.
…
Maduro’s government has made concerted efforts to weaken and break up the political opposition. After Maduro assumed the presidency in 2013, and especially following mass protests in 2016 and 2017, the government regularly resorted to imprisonment and intimidation to silence opponents. Many fled abroad, forced out by threats of detention or the urge to speak freely without fear of punishment. This has physically split the opposition, compelling its members to operate across multiple borders, primarily in Colombia, Spain and the United States.[18]
[18] International Crisis Group, ‘The Exile Effect: Venezuela’s Overseas Opposition and Social Media’, Report No 86, 24 February 2021.
There are reports of widespread politically motivated detentions in Venezuela. According to Foro Penal in a January 2019 report, more than 12,800 were arrested from 2014 in connection with anti-government protests, and at least 15,045 people were detained for political reasons between January 2014 and May 2019, the majority in the context of demonstrations.[19] The authorities hold hundreds of political prisoners, and although numbers have reduced since mid-2017, opposition politicians and human rights NGOS attributed this largely to a significant decrease in large scale protest following the July 2017 ANC elections.[20] Amnesty International reported in February 2020 that there were frequent reports of enforced disappearances in which authorities confirmed that people had been detained, but families and lawyers were unable to discover their fate or whereabouts.[21]
[19]‘Report: Military officers, relatives tortured in Venezuela’, Associated Press (AP), Lugo L A, 9 January 2019; ‘Report of the independent international fact-finding mission on the Bolivarian Republic of Venezuela. Advance Unedited Version’ (A/HRC/45/33), Independent international fact-finding mission on the Bolivarian Republic of Venezuela, [United Nations] Human Rights Council, 15 September 2020, p.4 paragraph 25; 'Detailed findings of the independent international fact finding mission on the Bolivarian Republic of Venezuela (A/HRC/45/CRP.11)', [Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela], United Nations Human Rights Council, 15 September 2020, p.67 paragraph 246, 202.
[20] United States Department of State, Bureau of Democracy, Human Rights and Labor, ‘Country Reports on Human Rights Practices for 2018 – Venezuela’, 13 March 2019, p 10.
[21] Amnesty International, ‘Human Rights in the Americas, 2019 Annual Report (AMR 01/1353/2020), 27 February 2020, p. 87.
As of 2021, Venezuela is facing a severe humanitarian emergency, with millions unable to access basic healthcare, adequate nutrition or safe water in homes.[22] The COVID-19 pandemic has added to the humanitarian crisis facing Venezuela with a collapse of the health care system and an inability to treat the number of patients presenting to hospital.[23] According to Human Rights Watch the government has used the COVID-19 state of emergency to repress dissent, arbitrarily detain and prosecute political opponents, including legislators, journalists, healthcare workers critical of the government’s handling of the pandemic and lawyers providing support to demonstrators.[24]
[22] Human Rights Watch, ‘World Report 2021, Venezuela: Events of 2020’,
[23] The Lancet, ‘Venezuela is collapsing without COVID-19 vaccines’, 15 May 2021 at
[24] Human Rights Watch, World Report 2021, Events of 2020 at >
Furthermore, returnees to Venezuela have been repeatedly stigmatised by the government, being accused of bringing COVID-19 to Venezuela.[25] The Maduro government has accused returning Venezuelans of being ‘bioterrorists’ and as of June 2020, announced that only 400 Venezuelans could return per day, with those caught crossing at informal points being sentenced to up to 10 years in prison.[26] Returnees are required to stay in overcrowded and unsanitary quarantine centres, with little access to food, water or medical care. Those who protest the conditions are threatened with arrest. Due to testing delays, many people have been quarantined for weeks longer than the recommended 14 days. Returnees have described the centres as severely overcrowded, with many people sharing a single room, unsanitary, lacking water and electricity to run water pumps, and lacking basic supplies needed for hygiene such as soap, in addition to serious difficulties obtaining medical care and food.[27] Returnees are subject to abuse upon arrival back in Venezuela. Authorities and pro-government armed colectivos have threatened, verbally harassed and mistreated returnees.[28]
[25] Human Rights Watch, ‘Venezuela: Abusive treatment for returnees’, 13 October 2020 at Organisation of American States, ‘Situation of Venezuelans who have returned and are trying to return to their country in the context of Covid-19’, September 2020 at Human Rights Watch, ‘Venezuela: Abusive treatment for returnees’, 13 October 2020 at
[28] Human Rights Watch, World Report 2021, Events of 2020 at
Having regard to such country information about the concerted efforts by the Maduro government to weaken and break up Venezuela’s opposition, and the use of violence and the threat of violence to crackdown on protesters, opposition supporters and/or those who criticise them, the Tribunal is satisfied the applicant faces more than a remote chance of serious harm on return to [City 1] on political opinion grounds at the hands of the government and/or government supporters. The Tribunal accepts she was threatened and harmed in the past due to her support for the opposition and work for the council. Further, it accepts the applicant would become politically active on return to [City 1] in some way. This is evident from her past involvement working for the [municipality] and intensive support provided to several opposition political parties in 2012, including agitating for a recount of the votes post-election, and ongoing interest in perceived injustices in Venezuela evident at hearing, and her political beliefs. The ongoing risks to opposition supporters and protestors from the Maduro government include violence and detention by government forces and colectivos.
The Tribunal finds that the harm feared by the applicant is from government authorities and paramilitary forces – colectivos - operating on behalf of the current government, that it amounts to serious harm as described in s 5J(5). Further it is satisfied that the essential and significant reason for the harm feared is the applicant’s antigovernment political opinion, and that the harm is systematic and discriminatory.
Given the perpetrator of the feared harm is the current government, which exists nationally, and the persistent concerns raised (and evidence in country information) about the lack of judicial independence within the system, the Tribunal finds that there is no effective state protection available to the applicant from the harm feared. For these reasons the Tribunal is also satisfied that the real chance of persecution relates to all areas of Venezuela as required by s 5J(1)(c) of the Act.
The Tribunal notes that s 5J(3) states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or conceal an innate or immutable characteristic. In this case, the Tribunal is satisfied that the modification would require the applicant to ‘alter his or her political beliefs or conceal his or her true political beliefs’ and therefore s 5J(3) does not apply.
For these reasons, the Tribunal finds the applicant faces a well-founded fear of persecution on return to Venezuela for reasons of her (anti-government) political opinion at the hands of the government.
For the reasons given above, the Tribunal is satisfied that the applicant has a well-founded fear of persecution in accordance with s 5J of the Act. In accordance with s 5H(1)(a) of the Act, the Tribunal is satisfied that the applicant is outside the country of her nationality and, owing to a well-founded fear of persecution, is unwilling to avail herself of the protection of that country. There is no information before the Tribunal to indicate that any of the exclusions set out in s 5H (2) apply to the applicant. The Tribunal finds, therefore, that for the purposes of s 36(2)(a) of the Act, the applicant is a refugee.
Given these findings it is unnecessary to consider the other grounds advanced or that arise on the material before it. Nonetheless the Tribunal notes and accepts the country information (including that provided by the representative) detailing mistreatment of returnees during the dire humanitarian situation unfolding in Venezuela, compounded by the global pandemic, may add to the applicant’s risk profile on return.
CONCLUSION
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
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Nicole Burns
Member

ATTACHMENT A – documents provided to the Department
·     Letter, [Mr G], Organisation Secretary, [Party 1], 11 March 2008[29], confirming the applicant as an active member
[29] At hearing the applicant said the year was meant to be 2018.
·     Presidential Election 2012 Credential, dated [October] 2012
·     Disability certificates dated 9 November 2012 and 20 November 2012 (about the applicant being unfit for work for certain periods)
·     Notice from CADIVI, dated [January] 2013, advising that the applicant was suspended from using the Registration of Users of the Foreign Exchange Administration system
·     Fingerprint form, issued by the Ministry of Popular Power for the Interior and Justice, dated [November] 2013
·      Police report dated [November] 2013 regarding identity theft
·      Letter from the applicant to CADIVI, dated [November] 2013
·     Employment certificate, [Town 1 Council] dated [June] 2016 confirming that the applicant worked from [March] 2012 to [December] 2012 and from [January] 2013 to [December] 2013 as a [Occupation 2]
·     Statement from [Ms D], [Occupation 3], dated 10 May 2016 who confirms that the applicant was injured [in] October 2012 at a rally, when attacked by colectivos
·     Statement from members of board of [an] apartment building, dated 15 August 2016, who state that the applicant was subject to threats, persecution and abuse by government supporters
·     Statement from [Ms A], President [Organisation 1] and Board member of [Party 1], dated 15 August 2012
·     Statement from [Mr D], Secretary General, [Party 2], dated 15 February 2017
·     Statement from [Organisation 2], dated 5 May 2017
·     Letter from [Mr H], [Organisation 3], dated 22 May 2017
·     Letter from [Mr I], [Organisation 4], dated 9 June 2017
·     Letter from [Ms F], [Party 2], dated 15 June 2017
·     Letter from [Mr J], General Secretary for [State] of [Party 2], dated 16 June 2017
·     Letter from [Mr K], [Job title], dated 27 June 2017
ATTACHMENT B - 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.
…

[2021] AATA 5137

1 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction