1919942 (Refugee)

Case [2023] AATA 3539

1919942 (Refugee) [2023] AATA 3539 (3 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)

APPLICANT’S REPRESENTATIVE:        Unrepresented

CASE NUMBER:  1919942

COUNTRY OF REFERENCE:                   Venezuela

MEMBER:Kate Chapple

DATE:3 August 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 03 August 2023 at 12:19pm

CATCHWORDS
REFUGEE – protection visa – Venezuela – political opinion – anti-Venezuelan government political opinions – member of social group – people suffering from illness or disability, including mental illness – young male from low socioeconomic background – victim of identity theft – used for criminal offences – no remaining family in Venezuela – participation in protests in Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
AFA16 v MIBP [2018] FCA 628
Morato v MILGEA (1992) 39 FCR 401
SZTEQ v MIBP (2015) 229 FCR 497
V v MIMA [1999] 92 FCA 355
Zheng v MIMA [2000] FCA 670

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.

EVIDENCE BEFORE THE TRIBUNAL

Protection visa application

  1. Protection visa application lodged 14 March 2019 and accompanying submission by the applicant’s former representative, Ramsden Lawyers, setting out the following claims:

    Political Opinion

    The Applicant opposes the policies and actions of the current Venezuelan government and supports democratic rule. The Applicant’s political opinion is therefore inconsistent with that held by the current government of Venezuela. In V v MIMA [1999] 92 FCA 355, it was held that holding a political opinion that is inconsistent to that held by the government of a person’s home country is sufficient to satisfy the ground that a person holds a certain political opinion.

    Further, in Zheng v MIMA [2000] FCA 670 the Full Federal Court observed that:

    ‘… refusal to participate in a corrupt state system can also be seen as an expression or manifestation of political opinion as the refusal to participate may be imputed by the authorities to be a challenge to the machinery, authority or governance of the state’. 5 As described in more detail below, the current Venezuelan government is corrupt and the rule of law is virtually non-existent. The Applicant does not support that corruption. As the above case reveal it is enough to rely on the ground of ‘political opinion’ where the political platform of a person’s government is corrupt and that person does not support that corruption.

    While the Applicant has never outwardly vocalised his political…

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AGLC
1919942 (Refugee) [2023] AATA 3539
Case
[2023] AATA 3539
Decision Date

CaseChat Overview and Summary

The applicant sought a protection visa, claiming to be a refugee due to a well-founded fear of persecution in Venezuela. The dispute concerned whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), specifically whether they had a well-founded fear of persecution for reasons of political opinion or membership of a particular social group. The decision was made by Kate Chapple, a member of the Migration and Refugee Division of the Administrative Appeals Tribunal.

The Tribunal was required to determine if the applicant held a well-founded fear of persecution for reasons of political opinion or membership of a particular social group, as defined by sections 5J and 5L of the *Migration Act*. This involved assessing the credibility of the applicant's evidence regarding their experiences in Venezuela, including alleged identity theft used for criminal offences, lack of family support, and participation in protests in Australia. The Tribunal also considered the country information provided by the Department of Foreign Affairs and Trade regarding the volatile political situation and prevalent crime in Venezuela.

The Tribunal applied the principles outlined in the *Migration Act* and relevant guidelines, including those concerning vulnerable persons and the assessment of credibility. It considered the applicant's oral and written evidence to be truthful and credible overall, accepting their account of their life in Venezuela and Australia. The Tribunal noted that a delay in applying for protection should not be the sole reason for doubting an applicant's claims, and that the significance of any delay depends on the specific circumstances and reasons provided. In this instance, the Tribunal was satisfied that the applicant met the definition of a refugee.

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

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Australian Government Department of Foreign Affairs and Trade “do not travel” travel advice overview for Venezuela updated to 6 June 2023 provides (inter alia) that:Common violent crime includes murder, armed robbery, drive-by shootings, sexual assault and carjackings. Criminals are often armed. Avoid walking in isolated areas, especially at night. Terrorist groups and criminal gangs are active along Venezuela's borders with Colombia, Brazil and Guyana.Kidnapping is a serious threat. The risk is higher along airport routes and in border regions. Only use official taxis organised through your hotel. Avoid kidnapping hotspots.Venezuela's political situation is volatile. Demonstrations and protests are common and can turn violent. If you're in an affected area, leave if it's safe to do so.Shortages of basic goods can result in long line-ups at stores. This can lead to fighting, looting and theft. Be ready to change travel plans. Keep extra supplies of food, water, medicines and other necessities.CONSIDERATION OF CLAIMS AND EVIDENCE In considering the applicant’s claims and evidence, the Tribunal has taken account of the:23.1.Migration and Refugee Division Guidelines on Vulnerable Persons.23.2.Migration and Refugee Division Guidelines on the Assessment of Credibility.23.3.Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.23.4.Relevant country information set out in this decision record. In particular, the Tribunal notes the following credibility guidelines:24.1.[8] The process of determining whether an applicant meets a visa criterion, including whether an applicant is a person who meets the definition of a refugee, often requires the tribunal to decide whether it accepts certain evidence and how much weight to give to that evidence. This process may involve assessing the credibility of an applicant or other persons and documentary evidence.24.2.[36] The period of time that has elapsed between an applicant’s arrival in Australia and the time when he or she claims protection may be considered when assessing the genuineness or extent of an applicant’s subjective fear[125] of persecution or significant harm.24.3.[37] A delay in applying for protection should not be the sole reason for doubting an applicant’s claims. There should be other reasons to support a finding that an applicant’s claims are not credible.[126] The significance of delay will depend upon the particular circumstances surrounding the delay and the reasons given for the delay.[125] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346 per Heerey J at 349.[126] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346; Anandaraj Subramanian v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, Carr J, 10 March 1998; Makouei v MIMA, unreported, Federal Court of Australia, Wilcox J, 6 February 1998, at 6. The Tribunal considers the applicant’s oral and written evidence truthful and credible overall, and accepts his account of his life in Venezuela and Australia.

Decision

Reasons for decision

The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.Kate ChappleMemberATTACHMENT ASummary of applicable lawThe criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.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).Relevant extracts from Migration Act 19585 (1) Interpretationcruel 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 familyFor 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 familyFor 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.

Ratio Decidendi

Legal Principle Established

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