1924221 (Refugee)

1924221 (Refugee) [2023] AATA 477 (13 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1924221
COUNTRY OF REFERENCE:                   Venezuela
MEMBER:Katherine Harvey
DATE:13 January 2023
PLACE OF DECISION:  Adelaide
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 13 January 2023 at 12:11pm

CATCHWORDS
REFUGEE – protection visa – Venezuela – political opinion – opposition to the Government’s education agenda – Tascón list – harassed by the Circulos Bolivarianos and colectivos – Maisanta program – employment opportunities – Carnet de la Patria – ability to subsist – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 5 August 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old woman who claims to be a citizen of the Bolivarian Republic of Venezuela (Venezuela). She visited Australia three times on tourist visas between 2010 and 2013, and last arrived in Australia [in] November 2014 on a student visa.
She applied for the protection visa on 5 February 2019, and she provided a copy of her Venezuelan passport with her application.
On 5 August 2019, a delegate of the Minister refused the applicant’s protection visa application.
The review application
On 30 August 2019, the applicant applied for a review of that decision. The applicant provided a copy of the delegate’s decision with her application for review and an 11-page submission. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 13 October 2022, the Tribunal invited the applicant to a hearing on 14 November 2022 and invited her to provide all documents that she intended to rely upon by 7 November 2022.
The applicant provided a pre-hearing submission with 15 attachments on 5 November 2022.
The applicant appeared before the Tribunal on 14 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted, with the assistance of an interpreter, in the Spanish and English languages. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. Where relevant, the applicant’s evidence to the Tribunal is referred to below in the Tribunal’s analysis.
On 14 December 2022, the applicant provided a post-hearing submission comprising 10 documents including statutory declarations from her brother and sister, her parents’ death certificates, an original and translated copy of a psychologist’s report from June 2014 and a copy of the applicant’s extract from the Tascón list.
The applicant was unrepresented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; there is a real chance they would be persecuted for one or more of those reasons; and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether she is entitled to complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Background
The applicant’s personal details are set out in her application for protection. She is [age] years old, she was born in Distrito Capital, Miranda, Venezuela and she lived in Caracas, Miranda, Venezuela until November 2014. At the time she made her application, she stated that she was divorced. The applicant was granted three student visas and undertook studies in Australia in [subject] and [subject]. She successfully completed her studies in December 2018 and applied for the protection visa on 5 February 2019.
The applicant provided information about her widowed mother, who was temporarily residing in Australia at the time she applied and who has subsequently died, and her brother and sister, who are both Australian citizens living in Australia. She claims that she holds an education degree, specialising in [area], and a Masters in [specialisation] in education. In Venezuela she worked as a [teacher].
Country of reference
The applicant claims that she was born in Distrito Capital, Miranda, Venezuela and is a citizen of Venezuela. She provided a copy of her Venezuelan passport with her application.
The Tribunal is satisfied that the applicant is a citizen of Venezuela and that Venezuela is the receiving country for the purpose of s 36(2)(aa) of the Act.
What are the applicant’s claims?
In her application, the applicant claimed that, despite the economic crisis in Venezuela, she had intended to return after completing her studies but the political problem that started in January (2019) was making her unwell with high levels of fear and anxiety.
She claimed that she would be at a high level of risk if a war started as she anticipated a US and/or Russian invasion and she feared being discriminated against or killed in the war.
The applicant claimed to fear:
·   losing basic human rights
·   not having access to food, medicines, water and energy
·   being physically, psychologically and/or verbally abused when arriving at the airport in Venezuela and possibly arrested or having her passport confiscated because she had returned from Australia, where the government had taken a position against Maduro
·   being discriminated against in job opportunities, and
·   being treated as a traitor.
She claimed that the government knew she did not support it because she signed for the recall of President Hugo Chávez and the list of signatories had been published by Luis Tascón (the Tascón list[1]), and she signed the recall referendum against Maduro in 2016. She claimed to be afraid of being persecuted, of losing her life or freedom.
[1] The Lista Tascón or Tascón list is ‘[a] database of over 3 million people who supported a referendum to revoke the presidential mandate of Hugo Chávez in 2003–2004.’ European Asylum Support Office, Venezuela Country Focus: Country of Origin Information Report, August 2020, 10 (‘EASO’).
She claimed that she needed protection because Venezuela is not a safe place at the moment, and it does not look like the problem will be resolved soon. She claimed to have few possibilities of surviving as Venezuela does not have enough food, water or medicine and the government is cutting power, water and basic services to reduce the will of fighters on the street.
She claimed that she could not move to another country because she does not have another nationality, and she claimed that her remaining relatives are living in Australia.
The applicant provided a number of links to news articles and country information to support her claims, as well as identity documents and information about her employment in Australia.
In her submission responding to the delegate’s findings, the applicant reiterated her claims that she will be pursued because she is an opponent of the government and she provided further information to support her claims, including reports from the United Nations and Human Rights Watch.
Assessment of claims and evidence
The applicant was in Australia at the time of this decision.
The applicant presented in a manner that the Tribunal perceived to be truthful and credible and her information about how she thought she would be treated as someone known to oppose the government was consistent with the country information.
Is the applicant a refugee?
The applicant said that she was a [teacher] in Venezuela with a degree in [education] and a diploma and a Masters in [specialised area] in education. She said that she worked with [children] in [classrooms] in the greater area of Caracas, in an area called [Neighbourhood 1] (which is one of the largest population areas in Latin America of disadvantaged, very poor people) and at [a school] in [Neighbourhood 2].
After the hearing, the applicant provided an original and NAATI-translated[2] work certificate, confirming her employment [from] 1998 to the date of request ([in] 2014) as [profession] in the state of Miranda.
[2] The National Accreditation Authority for Translators and Interpreters.
Political activity in Venezuela
At the hearing, the applicant said that she had never been a member of a political party, but she had taken action as a teacher when she saw President Chávez targeting education. She said that from 2000, she started noticing the changes. It started with changes to the books the children were using at school. The texts were changing so that the children were studying the life of the president and socialist trends in maths. She said that she couldn’t agree as an educator with the government trying to change the children’s way of thinking. These were six- and seven-year-olds who did not have any way to defend themselves. She thought that she had to take a stance.
The government put supervisors in schools who had nothing to do with the academic content and they had the power to remove teachers. They also put in teachers who were members of the PSUV (the United Socialist Party of Venezuela, the ruling party). These changes caused a really bad feeling amongst the staff. As educators, they started to form work groups to try and send suggestions to the government of different options, including to Mayor Jose Vincente Rangel Avalos, who was part of the PSUV and therefore a government representative. These work groups were not an official group, it was simply the educators from [the] Municipality working together. She said that this created hostility from the government and the government sent armed groups to keep them under control, which in turn led to a lot of protests in which she participated, and to her signing the petitions to revoke the government.
She said that, at the start, they were peaceful protests where they would get together with their union and demand that the mayor come and listen to their plight. But it always ended in repression and attempts to disperse the groups by the colectivos[3] and Circulos Bolivarianos (Bolivarian circles). She said that the armed groups have immunity from the government and they are allowed to use any brute force they want against the people protesting.
[3] ‘Colectivos are citizen security groups that evolved from the ‘Bolivarian Circles’, groups formed in the time of Hugo Chavez as grassroots support for defence of the Bolivarian revolution. Since then they have had a complex relationship with the Government and State security forces. While the term colectivo has been used as a catchall to refer to these groups, in practice they operate under parallel command structures. According to an analysis by the investigative organisation InSight Crime, some colectivos have morphed into criminal structures. Information indicates links between the State and these armed groups. President Maduro has mentioned his support to the colectivos on several occasions...’ United Nations Human Rights Council, Detailed findings of the independent international fact-finding mission on the Bolivarian Republic of Venezuela, 15 September 2020 [216]–[217].
She said that she was friends with [Mr A], a prominent member of Voluntad Popular (an opposition party) who was jailed for four months in 2017 on terrorism charges. Voluntad Popular would help them if they needed to organise a march and, because they were involved in politics, they were able to bring the teachers advice. The applicant said that she was friends with [Mr A] simply because they were both educators.
In 2008, they received information that there would be massive retrenchments by the council and their area would be affected. At a protest that year, they went inside the council building and organised the work groups there. When they were working there, someone came and told them that the armed groups had entered the building. It was total chaos. They were carrying machetes and hitting people with them. Her immediate reaction was to try to run, and she was able to get out and to get away to somewhere safe, but she said it was shocking that they were able to enter the municipal building and do that there.
The applicant said that she signed a number of petitions over the years, including the one in 2003, which was put up by the opposition to request the resignation of the president because the Venezuelan constitution allows for someone in an electable position to be removed half-way through their term. She said that she signed again in 2004, which was a petition that simply demanded a straight-forward resignation of the president, which he did not accept.
The Tribunal asked the applicant why she had not provided all of this information in her application, including her friendship with [Mr A]. She said that she honestly did not think at the time that her application would require so many details and so she gave an overview of the situation. When she realised that what she provided would not be enough, then she provided more details.
The Tribunal accepts that the applicant was politically active in Venezuela in opposition to the Government’s education agenda, that she was a signatory of petitions calling for a referendum in opposition to President Hugo Chávez and that this information was included in the Tascón list.
Discrimination in Venezuela
The applicant claimed that the government knew who had signed the petitions via the Tascón list and that they used this information to persecute and harass the signatories, and they knew exactly where they were because the government had their addresses and all their details. She said that there was constant aggression against them and a total denial of their rights. She was frightened even though she was not doing anything wrong, she was simply exercising her right to live in a reasonable country and defend the children’s rights.
The applicant said that she had been encouraged to join the PSUV but always rejected it because ‘that party is not in my philosophy’. She said that armed groups would follow her around and harass her, which was their way to force her to join. She said that, while she did not lose her job, many people did, and when you are part of the opposition there are no options in employment.
She said that she was harassed by the Circulos Bolivarianos and colectivos. She said that lots of colectivos lived in [Neighbourhood 1] and she was a victim several times when they would come into the classroom itself. She said an armed group would come to her class with hoods on and they would point their guns at her and say you have to stop this, referring to the protest movement.
She also said that the colectivos would come and sit next to her on the bus and say we know where you live. She said that they knew where she worked, where she caught public transport and where she stayed. It was very scary. She was constantly afraid because she thought that she was being watched. She said that the colectivos do what they want with impunity. She said that the threats were constant, and they were becoming more frequent until she asked to be moved. She said that she requested a transfer in September 2004, when the school year started. In January 2005, they transferred her to [Neighbourhood 2] but nothing changed.
She said that the Tascón list has not just remained what it was. After complaints from the international scene, Chávez took the list down but the Maisanta database (also known as the Maisanta list and the Maisanta program) is still there and the armed government groups use it. She said that the government is the umbrella but the people who cause the harm are the armed groups that use this database. She said, for example, the municipality where she worked would not take any harassing measures towards her, but they would get the armed groups to do that.
The applicant said that she received threatening phone calls and text messages. They said that they knew who she was, and they wanted her to join and support the government and to just go with it and that she had no choice.
The applicant said that the whole situation caused her to have panic attacks but, when she went to hospital, they would say that this is only for patriots. This was at the council health centre and at the hospital if you went for dental care. She said that this happened at different times but was ‘greatest’ around 2014. She said that she was told to take out private health insurance, but she was an educator so did not have the means to do that. She said that her family in Australia helped her financially and she had a lot of treatments that had to be paid for privately.

In his statutory declaration, her brother said that he sent money monthly to his sister and mother so that they could pay expenses. He said he ‘supported her emotionally and financially for many years until the government squeezed through currency controls and it became harder and harder to send them money. Family remittances through CADIVI,[4] which was the only legal way to obtain foreign currency, were repealed in January 2014 and it was impossible to continue helping her from here in Australia’.
[4] The former Commission for the Administration of Currency Exchange.
After the hearing, the applicant provided an original and NAATI-translated psychological report dated June 2014. The report states that the applicant ‘comes to the consultation for presenting “anxiety and sadness” as well as “difficulty sleeping” after a situation of “harassment and persecution by the government for being an opponent and being active in demonstrations” according to the patient’.
When asked why she had not applied for a protection visa until 2019, the applicant said that she did not come to Australia with the intention of staying. She thought that she would have a rest and calm down and wait for the situation in Venezuela to stabilise. She also said that living in constant fear in Venezuela is normalised. But during the period she was in Australia, from 2014–2019, the situation changed dramatically. She said that she still planned to go back to Venezuela in 2019 and resigned from her [job], but then the whole thing blew up with Maduro and the Presidency, and she realised that it was not a circumstantial thing that would change, and she realised that she had to do something because she would not be able to live in Venezuela.
In 2008, Human Rights Watch detailed how the voter information in the Tascón list was incorporated in the Maisanta program:
During the 2005 congressional elections, pro-Chávez campaigners designed a database known as the ‘Maisanta program’. Unlike the Tascon list, which contained only the names of those who had signed for the recall referendum, the Maisanta program contained detailed information on all registered voters, totalling over 12 million citizens. It informed the user if the voter had signed the recall referendum against Chávez, abstained in earlier elections, participated in the government’s missions, and signed the counter-petition for a recall referendum against opposition legislators.[5]
[5] Human Rights Watch, A Decade under Chávez: Political intolerance and lost opportunities for advancing human rights in Venezuela, September 2008, 20–21, (‘HRW’).
Country information from the European Asylum Support Office supports the applicant’s claims that workers in the education sector who actively opposed the government experienced discrimination:
Workers in the education sector who participated in demonstrations faced threats, sanctions, dismissal, and replacement with non-qualified personnel hired through the Work Program for Youth Plan (Plan Chamba Juvenil[6]). Some scholars had to leave the country for threats against their lives. According to the Democratic Union of the Education Sector (Unidad Democrática del Sector Educativo), a movement of teachers from across the country, over 200 000 teachers have left Venezuela.[7]
[6] ‘The Plan Chamba Juvenil is a work program for people between 15 and 35 years old, who are unemployed university students, youth with no formal education, single mothers or young people head of households. They must have the Carnet de la Patria in order to access the program’, EASO (n 1) 59.
[7] Ibid.
Having accepted that the applicant appears as a signatory on the Tascón list and that the country information details the connection between the information in the Tascón list and the information in the Maisanta program, the Tribunal accepts that the applicant was targeted and harassed in Venezuela because she was known to be in opposition to the government.
Does the applicant have a well-founded fear of persecution?
The applicant is concerned that, if she returns to Venezuela, she will have no access to employment because she is on the Maisanta list, she will have no access to food or healthcare because she doesn’t have a Carnet de la Patria, and she doesn’t have any family support in Venezuela as her parents have died and her siblings both live in Australia.
She said that in Venezuela the whole system is connected: health, protection, security and employment are all globalised under one system and the system uses the Maisanta list.
Employment
The applicant said that she was given a two-year leave of absence from her job when she came to Australia, and she extended her leave of absence for another year when she was finishing her studies. She was then advised that her contract had expired because she was outside Venezuela. She said that she realised that she would not have any employment if she returned to Venezuela and she would not be able to get employment, because all employment was in the hands of the government.
Academics in the United States have published research using the Maisanta program to calculate the price of political opposition[8] and the effects of political bias[9] in Venezuela, which demonstrates the accessibility of the detailed information recorded in the Maisanta program.
[8] Hsieh, Chang-Tai, Edward Miguel, Daniel Ortega and Francisco Rodriguez, The Price of Political Opposition: Evidence from Venezuela’s Maisanta’, American Economic Journal: Applied Economics, Vol 3, No 2, April 2011, 196–214.
[9] Albertus, Michael, The Role of Subnational Politicians in Distributive Politics: Political Bias in Venezuela’s Land Reform Under Chávez, Comparative Political Studies, 23 June 2015, 1–44.
The Tribunal accepts that the applicant may experience discrimination in the future when seeking employment because of her known political opinion.
Carnet de la Patria
The Immigration and Refugee Board of Canada reports that applicants for the Carnet de la Patria are required to answer questions on their existing health conditions and electoral participation. The US Country Reports 2020 indicates that applicants are required to present ‘proof of political affiliation’ and answer questions about their social service benefits.[10]
[10] Immigration and Refugee Board of Canada, Responses to Information Requests: VEN200881.E, 28 January 2022 Responses to Information Requests - Immigration and Refugee Board of Canada (irb-cisr.gc.ca) (IRBC).
The World Food Programme Venezuela Food Security Assessment in 2020 estimated that 32.3 per cent of Venezuelans (9.3 million people) were food insecure and in need of assistance, and that 59 per cent of households had insufficient income to buy food.[11] The Carnet de la Patria is required to access subsidised food and medicine[12], and the UN Human Rights Office ‘continued to receive reports of some persons allegedly being denied food assistance on political grounds, for criticism of the Government’.[13] In discussing access to social programs and benefits, the Immigration and Refugee Board of Canada reports that:
Sources indicate that Venezuelan authorities reportedly exclude Venezuelan citizens opposing the Maduro government from food aid distribution (Researcher 9 Jan. 2020; UN 15 Sept. 2020, para. 145; Freedom House 4 Mar. 2020). The UN Fact-Finding Mission reports that the Venezuelan authorities rely on an identity card, the Homeland Card (Carnet de la Patria), to deliver humanitarian aid to citizens on the basis of "loyalty" to the regime (UN 15 Sept. 2020, para. 145). Similarly, the Netherlands' information report on Venezuela states that "there are reports that citizens who sympathise with the opposition are denied social services" (Netherlands June 2020, 36). In this context, the Homeland Card is regarded "by many" as a means of government control (Netherlands June 2020, 36)., Reuters similarly reports that human rights groups believe that the Maduro government uses the Homeland Card to monitor the populace and "allocate scarce resources to his loyalists" (Reuters 14 Nov. 2018). The same source notes that the database associated with the Homeland Card system includes data on the cardholder's date of birth, family, employment and income, property ownership, medical history, government assistance received, social media presence, political party membership, and electoral participation (Reuters 14 Nov. 2018).[14]
[11] World Food Programme, Venezuela Food Security Assessment, January 2020, main_findings_wfp_food_security_assessment_in_venezuela_january_2020-2.pdf (acaps.org)
[12] IRBC (n 11).
[13] United Nations Human Rights Council, Situation of human rights and technical assistance in the Bolivarian Republic of Venezuela, 21 October 2021, at 11 G2129296.pdf (un.org).
[14] Immigration and Refugee Board of Canada, Responses to Information Requests: VEN200429.FE, 3 February 2021 Responses to Information Requests - Immigration and Refugee Board of Canada (irb-cisr.gc.ca).
In its August 2020 report, the European Asylum Support Office said that, while the Tascón list and the Maisanta program had been favoured during the Chávez era for discrimination and persecution on political grounds, ‘during the Maduro government the monitoring and discrimination tool most used is the Carnet de la Patria (Homeland Card)’. The report said that monitoring of low-profile targets is carried out by armed colectivos and ‘boliches’[15], and that ‘access to government databases by colectivos “takes place sui generis rather than officially”.’[16]
[15] Boliches or Fuerzas Patrióticas de Liberación Nacional (Patriotic Forces of National Liberation), ‘the FPLN is a splinter of the now inactive Bolivarian Liberation Front (FBL, Fuerzas Bolivarianas de Liberación), supports the Venezuelan government, and has reportedly worked alongside local authorities and security forces’, EASO (n 1) 9.
[16] Ibid 34–35.
The United States Department of State reports that the Carnet de la Patria is used to obtain social services and also allows the Maduro government to monitor citizens’ behaviour:
China, through its telecommunications corporation ZTE (Zhongxing Telecommunication Equipment Corporation), provided the Maduro regime with technology to monitor citizens’ social, political, and economic behavior through an identity card called carnet de la patria (homeland card). To force citizens to comply, the regime made it obligatory to present the card to obtain social services, including pensions, medicine, food baskets, subsidized fuel, and in some instances COVID vaccinations. Citizens essentially had no choice but to obtain and use the card despite the known tracking methods.[17]
[17] United States Department of State, Bureau of Democracy, Human Rights and Labor, 2021 Country Reports on Human Rights Practices: Venezuela, Venezuela - United States Department of State.
The Tribunal accepts that the applicant does not have a Carnet de la Patria and it accepts that a Carnet de la Patria is required to access subsidised food and medicine and other benefits in Venezuela. The Tribunal accepts that, if the applicant were to apply for a Carnet de la Patria, she would be required to disclose her political opinion. The Tribunal also accepts that, if the applicant were to obtain a Carnet de la Patria, the Venezuelan government would be able to monitor her behaviour.
Analysis
The Freedom House Freedom in the World 2022: Venezuela report overview states that:
Venezuela’s democratic institutions have deteriorated since 1999, but conditions have grown sharply worse in recent years due to harsher crackdowns on the opposition, and the ruling party relying on widely condemned elections to control all government branches. The authorities have closed off virtually all channels for political dissent, restricting civil liberties and prosecuting perceived opponents without regard for due process. The country’s severe humanitarian crisis has left millions struggling to meet basic needs, and has driven mass emigration.[18]
[18] Freedom House, Freedom in the World 2022: Venezuela, Venezuela: Freedom in the World 2022 Country Report | Freedom House.
The Bertelsmann Stiftung BTI 2022 Country Report – Venezuela reports that Venezuela is:
A petrostate in decay, the country is characterized by the amassing of political and economic power in the hands of an autocratic ruling elite, unfettered corruption, patronage networks, weak institutional arrangements and the brutal repression of dissent.[19]
[19] Bertelsmann Stiftung, BTI 2022 Country Report – Venezuela, Gutersloh: Bertelsmann Stiftung, 2022
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The Tribunal has considered the applicant’s circumstances as a known opponent of the Venezuelan government and a signatory appearing on the Tascón list. The Tribunal has considered that the applicant’s political activities have led to harassment and discrimination in the past and will make it difficult for the applicant to find future employment. The Tribunal has considered that the applicant would be required to disclose her political opinion if she applied for the Carnet de la Patria, and that the Venezuelan government, which is known to repress dissent, is able to monitor citizens’ behaviour through the Carnet de la Patria. The Tribunal has considered that the applicant would find it extremely difficult to subsist in Venezuela without employment or access to subsidised food and medicine through the Carnet de la Patria. Given the applicant’s personal circumstances and the country information referred to above, the Tribunal finds that, if the applicant returns to Venezuela now or in the foreseeable future, there is a real chance that she will suffer serious harm and systematic and discriminatory conduct because of her political opinion.
Conclusion
Having considered the applicant’s claims individually and cumulatively, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reason of her political opinion.
The Tribunal is satisfied that the real chance of persecution relates to all areas of Venezuela, that it would involve serious harm and systematic and discriminatory conduct, and that it is for the essential and significant reason of her political opinion.
The Tribunal is satisfied that the applicant is not able to take reasonable steps to modify her behaviour to avoid a real chance of persecution.
The Tribunal is satisfied that effective protection measures would not be provided to the applicant by the State.
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.
Katherine Harvey
Senior Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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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.
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[2023] AATA 477

13 January 2023

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Immigration

Administrative Law

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Procedural Fairness

Statutory Construction

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