1924658 (Refugee)

1924658 (Refugee) [2023] AATA 3613 (18 July 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:        Ms Elizabeth Fischer, lawyer
CASE NUMBER:  1924658
COUNTRY OF REFERENCE:                   Venezuela
MEMBER:Kate Chapple
DATE:18 July 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 18 July 2023 at 8:56am
CATCHWORDS
REFUGEE – protection visa – Venezuela – political opinion – perceived by authorities to be anti-government due to his work – no effective protection available – risk of significant harm – economic hardship – denial of basic rights – no effective protection or relocation within – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K, 5L, 5LA, 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.
OVERVIEW

The applicant, a [age] Venezuelan man, left Venezuela in 2016 in the midst of escalating political tensions and extreme intolerance and mistreatment by the authorities of individuals seen to be anti-government. As a pilot, the applicant flew [Party leaders to] campaign events, and was otherwise politically engaged, including by attending many anti-government protests and following anti-government advocates and news sites.
The applicant had planned to study in Australia for a year then return to Venezuela when the situation had calmed down. However, he found the situation had worsened and that he could not return, fearing targeting and harm by the Venezuelan authorities for his occupation and activities in Venezuela, and being regarded or perceived as an opposition supporter and therefore anti-government.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application
Protection visa application lodged 27 June 2017 setting out the following claims (spelling and grammatical errors not corrected):
3.1.[reason applicant left Venezuela] Due to the fear of being killed by the dictatorship run by the government.
3.2.[what applicant thinks will happen to him if he returns to Venezuela] My family and I are in danger of being killed by political opinion or demonstration against the government of Nicholas Maduro. They can easily find the corrupt police for which I was kidnapped in any part of the country and have accurate information of people who enter and leave the country or carry out any transaction.
3.3.[harm experienced by applicant in Venezuela] Throughout my career as a pilot because I have worked with different [Party leaders]I have been in situations of psychological torture by the national guard and death threats. When I was kidnapped by the corrupt police I was hit in the head and different parts of my body with weapons and threatened to kill me and my family.
3.4.[reason applicant did not try to move to another part of Venezuela] Because they find you anywhere in the country.
3.5.[harm or mistreatment applicant is likely to experience if he returns to Venezuela] I will not only be mistreated but surely get killed by the dictatorship.
3.6.[reason applicant thinks Venezuelan authorities would not protect him] As I have been marked as a traitor since I worked with [Party leader]and I fled Venezuela after the authorities kidnapped and tortured me.
3.7.[reason applicant would be unable to relocate within Venezuela] Unfortunately the political crisis that Venezuela is experiencing will only get worse and it will not be safe for me and my family to go (relocate) back.
Applicant’s statement accompanying his protection visa application (spelling and grammatical errors not corrected):
The following letter is to manifest the facts that happened to me and my family, for not supporting the current government of Venezuela which is ruled by the dictator Nicolas Maduro.
I make it clear that I am a commercial pilot and that I worked in a company that flew to different [Party leaders]. When the bell began for the election of president after Hugo Chavez died, I was flying to the [Party leaders] and candidate for the [position][Mr A], one day we made a stop as usual in a Venezuelan town in which the leader would be talking with the people about what he would do if he won[a position]. The next day at the time of the inspection of the plane and verify that everything is in order; I get in one of the turbines of the plane blocked by a plastic object which is unusual. The authorities responsible for caring for all Venezuelan airports are the Bolivarian National Guard (GNB), when addressing them and explaining the situation denied having done something I wanted to raise a report due to the seriousness of the incident since it could have caused an air accident, I was told not to insist because I was going to be arrested for fear check the rest of the plane and not mention anything else. Throughout the campaign I was threatened on several occasions and in different airports of the country even more than once after landing, I was held at the airport's command post for no reason at all and with no response whatsoever. This series of events nested to the incident of the section in which I was victim made by the police led me to flee the country making it difficult to live and work with constant death threats towards my person and my family (Wife [child]and Mother). Today my Mother who is in Venezuela receives threats through phone calls where they ask about me and that if I did not find my whereabouts, she would pay the consequences. I also make it clear that my Mother is an opponent is also attacked by Policies and GNB with firearms and tear gas bombs even inside her house. In view of this situation I feel frustrated and afraid not being able to have a normal life in Venezuela since I run the risk of death. Today I ask Australia for protection for me and my Family with the commitment to work as professional and dignified as God commands.
Translated certificate certifying the applicant’s completion of theoretical course and training for a commercial pilot licence on 17 October 2014.
Letter of Employment dated 26 February 2014 from [Company 1]certifying that the applicant had been employed since June 2013.
Photographs of the applicant with [Party leaders]of Venezuela.
Photographs of applicant after being released by authorities [in]April 2016.
Translated police complaint dated [in] October 2016 by the applicant’s [relative 1].
Email submission by the applicant’s representative dated 25 May 2021 (inter alia) as follows:
Please see attached extract from US Department of State Country Information Report on Venezuela and note that this information provides conclusive evidence that the particular social group: ‘returnees to Venezuela’, is highly likely to face persecution for reason of the political opinion of the Venezuelan government and its supporters. There is no reason to believe that this situation will improve in the foreseeable future.
We note that the review applicants arrived in Australia [in]April 2016 and have not returned since that time. The Australian government has since made public statements calling for a return of democracy to Venezuela and supported opposition leader Juan Guaido as interim president. Clearly then, if the delegate’s decision is upheld by the tribunal and the applicants are forced to return, they will be seen as members of the particular social group: ‘returnees to Venezuela’, and subject to serious harm, including threats to his liberty, significant physical harassment and ill-treatment, significant economic hardship, denial of access to basic services and denial of capacity to earn a livelihood of any kind, threatening the family’s capacity to subsist.
COUNTRY INFORMATION UPDATE
United States Department of State 2020 Country Reports on Human Rights Practices, Venezuela D. FREEDOM OF MOVEMENT
Throughout the year high-level regime officials stigmatized returning citizens, blaming them for rising COVID-19 cases and calling them “bioterrorists” and “biological weapons.” On July 15, Maduro called on all citizens to report and apprehend returnees who crossed into the country through unofficial border crossings.
The illegitimate Maduro regime required returnees to spend a mandatory two-week quarantine period at shelters run by the armed forces at the border. Humanitarian organizations and interim government officials reported overcrowding and unsanitary conditions in quarantine shelters that increased the likelihood of COVID-19 transmission. Returnees held in these facilities suffered from insufficient food, water, electricity, and hygiene items, as well as physical insecurity that put vulnerable groups, particularly women and children, at risk of sexual violence and abuse. A COVID-19 diagnostic test was required for release from the quarantine shelters, but in view of the regime’s limited testing capacity, several returnees were held for as long as one month. Media reported returnees were kept from returning to their regions of origin and threatened by armed groups controlling the shelters not to report the poor conditions.
Media reported regime authorities blocked citizens from returning to the country. On June 6, the illegitimate Maduro regime adopted measures to limit the number of citizens returning to the country through the border with Colombia. Migrants were only allowed to return on three specific days a week, and regime authorities set a limit of 1,200-1,300 returnees weekly through Arauca, Cucuta, and Paraguachon. As of September more than 40,000 citizens waited to cross the border into the country through Cucuta, according to the Organization of American States (OAS) commissioner-general for the Venezuela refugee crisis David Smolansky. NGOs reported citizens unable to return to their country faced uncertain legal and financial statuses and were at high risk of victimization for crime, trafficking, and gender-based violence by criminal armed groups
Other departmental records:
11.1.Decision record relating to the delegate’s refusal decision.
11.2.Interview audio file.
11.3.Case file.
11.4.Internal records relating to the applicant.
Application for review
The Tribunal wrote to the applicant inviting him to attend a hearing on 14 July 2023 and to provide pre-hearing submissions.
Prior to the hearing, the applicant provided to the Tribunal confirmation that he intended to participate in the hearing, a request for full interpretation, and the following documentation:
13.1.Applicant’s statutory declaration (with attachments) dated 10 July 2023 declaring as follows (family members’ names removed):
1.          I was born in[State 1], Venezuela on [DOB]. Annexed hereto
and marked LDMG-1 is a true copy of my Passport ID page.
2.          I am a citizen of Venezuela and no other country.
3.          I do not currently have the right to enter and reside in any other country.
4.          I currently have nil assets in Venezuela.
5. I am now separated from my partner with whom I was in a de facto relationship from [in] July 2011 to [in] December 2021, when she returned to Venezuela together with our [child]. She had found it very difficult to live in Australia without any family support for our [child], nor financial support throughout the Covid-19 pandemic. She was so distressed that she was determined to depart urgently, without a Bridging Visa B for return; and ignoring the following DFAT Travel Advice in place at that time: not travel to Venezuela due to the unstable political and economic situation, shortages of food, water, medicine and petrol and high levels of violent crime.
6. As I fear for my life if I return to Venezuela, I could not go with them. They are now living with my former partner’s parents and I send money to them for my [child]’s private school fees and other expenses.
7.          I grew up in [State 1] State with my family:
a) Mother – Venezuelan citizen, currently in Venezuela;
b) Father – Venezuelan citizen, currently in Venezuela;
c) [sibling] – Venezuelan citizen, currently in Venezuela.
8.[State 1]was always in opposition to the government. See for example, annexed hereto and marked LDMG-2 a true photo of the army getting inside the building where I used to live with my Mum, throwing tear gas inside the homes. That has gone on for many years.
9.I attained qualifications as a Private Commercial Pilot from [Academy 1], [State 1]from May 2011 to January 2015. Annexed hereto and marked LDMG-3 is a true copy of the completion letter.
10.[In early]2015 my Commercial Pilot Licence was issued. Prior to that I was a Private pilot/Copilot. These roles were supervised and included checking the planes and helping with luggage until I completed the hours required to upgrade to a commercial licence. Annexed hereto and marked LDMG-4 is a true copy of the commercial pilot licence.
11.I flew [candidates] around the country for their speaking engagements. During the presidential campaign after Hugo Chavez died on 5 March 2013, I was flying the [a party leader] and candidate for the [position],[Mr A]. Annexed hereto and marked LDMG-5 are true photos of me together with [Mr A] and other [party members].
12.Following many years of political upheaval, heavy handed government and generalised crime by 2016 I was thinking: ‘This is a country where you cannot live anymore. I saw some advertisements about studying English in Australia and I thought ‘Maybe I’ll just study abroad and hopefully things will get better.’ I think it was February 2016 when I approached EMSA Agency and started providing documents.
13.I left Venezuela and arrived in Australia [in]July 2016.
14.In May 2017, my mother sent me video recordings of our house being attacked by the army. In the videos you can hear my Mum’s desperate and shocking yell of help and the army throwing tear gas. After my Mum send me the video of the army and the teargas I realised I couldn’t go back and that’s why I decided to lodge the application on 27 June 2017. Refer to LDMG-2 above.
15.I had found out about the protection visa by research on Google. My former partner and I also went to places that have free counselling, like churches. We went once to [organisation deleted] asking for help to fill out forms and to get more information. We got an advice session. It was very short. We also went to a place in the city for more help. We couldn’t get any help because we were international students so then we did it ourselves. Also at the time our English was terrible.
16.I am unable to provide evidence of various aspects of my claims, such as my ‘Opposition’ support when voting elections, attendance at many protests (possibly over 100 from 2011 to 2016) and government surveillance. Some of the evidence that I submitted with respect to my departmental application contained errors such as incorrect dates. As I am unable to provide reliable evidence to verify the truth of those matters, I hereby withdraw any claims that relied upon that evidence.
17.I’ve been in Australia for 7 years. I’m completely disconnected now. I do not keep informed. My Mum asks me for money and I have no idea what the exchange rate is. All I know is Maduro is still the president and they cut off the power and water regularly.
18.If I am forced to return to Venezuela, I fear that I might be subject to serious harm, including
threats to my life and liberty, significant physical harassment, significant physical ill-
treatment, significant economic hardship that threatens my capacity to subsist, denial of
access to basic services that threatens my capacity to subsist, and denial of capacity to
earn a livelihood of any kind, threatening my capacity to subsist, for reason of
a) Political opinion current social media profile (Annexed hereto and marked LDMG-5);
b) The political opinion of Venezuelan Government supporters;
c)   Imputed political opinion as a returnee from Australia after 7 years and resident of Miranda State; and
d) Membership of Particular Social groups: Commercial Pilot in Venezuela’ and ‘Resident of [State 1]’.
19.I began a relationship with my current partner in January 2023. She is a citizen of Venezuela and has already passed the Australian Citizenship Test on 30 June 2023. She is currently separated from her Australia partner and in the process of obtaining a divorce. She and I are due to have a baby in October 2023.
a) Annexed hereto and marked LDMG-6 is medical evidence of pregnancy.
b) Annexed hereto and marked LDMG-7 is a true copy my current partner’s Australian Citizenship appointment letter.
c)   Annexed hereto and marked LDMG-8 is a true copy of current shared tenancy agreement.
13.2.Submission by applicant’s representative dated 11 July 2023, including the following:
We note the following country information applicable at the time of Hearing:
UN High Commissioner for Refugees (UNHCR), Guidance Note on the Outflow of Venezuelans March 2018, available at: [accessed 31 August 2018]
1. Venezuela continues to experience a significant outflow of Venezuelans to neighbouring
countries, other countries in the region, and countries further afield. While individual
circumstances and reasons for these movements vary, international protection considerations have become apparent for a very significant proportion of Venezuelans.1 UNHCR’s concern for Venezuelans outside their country of origin implicates UNHCR’s mandate.
2. Against this background, UNHCR calls on States receiving and/or already hosting Venezuelans to allow them access to their territory. … Such arrangements are guided by the principle that providing international protection is a humanitarian and non-political act.
Access to asylum procedures
4. All decisions on asylum claims need to take into account relevant, reliable and up-to-date country of origin information.
US Department of State Human Rights Report Venezuela 2022, accessed from
11 July 2023
The FFM report stated “real and perceived dissidents and opponents” of the Maduro regime increasingly included individuals and organizations that documented, reported, or attempted to address human rights or social and economic problems in the country. The FFM concluded that it had reasonable grounds to believe Maduro and other high-level members of the regime used security agencies such as the Directorate General of Military Counterintelligence (DGCIM) and Bolivarian National Intelligence Service (SEBIN) to suppress dissent through actions that included extrajudicial killings.
The Public Ministry is responsible for initiating judicial investigations of security force abuses. The Office for Protection of Human Rights in the Public Ministry is responsible for investigating cases involving crimes committed by public officials, particularly security officials. There was, however, no official information available on the number of public officials prosecuted, convicted, or sentenced to prison for involvement in extrajudicial killings, which, in the case of killings committed by police, were often classified as “resistance to authority.”
The regime did not publish data on arbitrary or unlawful killings committed during the year. In August Tarek William Saab, whom the regime styled as attorney general, reported that between 2017 and August, 1,527 security officers were accused of homicide; torture or inhuman, cruel, or degrading treatment; 762 were imprisoned; and 279 were convicted for their crimes, but he made no reference to arbitrary killings
NGOs Venezuelan Education-Action Program on Human Rights (PROVEA) and Fundación Gumilla documented 485 extrajudicial killings in the context of security operations or protests in the first half of the year. State police were involved in the highest number of killings at 25 percent, followed by the National Bolivarian Police (PNB) at 20 percent, and then the National Scientific, Criminal, and Investigative Corps (CICPC) at 19 percent. Most of the victims
(63 percent) were young men between 18 and 30 years old. The NGO Venezuelan Violence Observatory reported 104 deaths involving police or security forces from July to September, with PNB involved in 28 percent of the deaths.
The NGO PROVEA reported that a September 8-11 police operation carried out at Los Valles del Tuy in Miranda State resulted in 23 extrajudicial killings. The operation was led by the National Anti-Extortion and Kidnapping Command, Miranda municipal police, GNB, PNB, and CICPC. Although the regime claimed that all the deceased were linked to criminal gangs and that they died during confrontations, relatives alleged police arbitrarily executed their family members.
The Maduro regime-aligned Office of the Human Rights Ombudsman did not publish statistics regarding allegations of torture by police during the year. Several NGOs detailed cases of widespread torture and “cruel, inhuman, and degrading treatment.”
In September the FFM released a third report focused on crimes against humanity committed through structures and individuals in the regime’s intelligence services, specifically DGCIM and SEBIN, as part of a systematic plan to repress opposition to the regime. The report noted the violent acts were not committed arbitrarily but rather were part of a system orchestrated and executed by the Maduro regime to repress dissidents. The FFM documented that SEBIN played a fundamental role in the detention of opponents, including politicians, human rights defenders, and protesters. Most prisoners were taken to El Helicoide (SEBIN) and Boleita (DGCIM) torture detention facilities, but there were several detention centers around the country.
The report detailed that torture was a systematic procedure in both El Helicoide and Boleita. The FFM documented 122 cases of victims subjected to torture, sexual violence, and other inhuman punishment by DGCIM agents beginning in 2014. At SEBIN, it documented 51 cases of torture or inhuman treatment. The FFM reported DGCIM and SEBIN recruited low-level officers who were young and poor, with low levels of education, and who often had alcohol or drug dependencies. The FFM noted the vulnerable state of these low-level officials made them easier to manipulate through a system of rewards or punishments.
Media and NGOs reported beatings and humiliating treatment of suspects during arrests were common and involved various law enforcement agencies and the military controlled by the Maduro regime. Cases of torture and other cruel, inhuman, or degrading treatment or punishment of prisoners were also reported. Regime-aligned individuals subjected detainees to asphyxiation, electric shock, broken bones, hanging by their limbs, and being
forced to spend hours on their knees. Detainees were also subjected to cold temperatures, sensory deprivation, and sleep deprivation; remained handcuffed for extended periods of time; and received death threats to themselves and their relatives. Detainees reported regime-aligned security forces moved them from detention centers to houses and other clandestine locations where abuse took place.
Cruel treatment frequently involved denying prisoners medical care and holding them for long periods in solitary confinement. The latter practice was most prevalent with political prisoners. NGOs detailed reports from detainees who were victims of sexual and gender-based violence by security units. The OHCHR received complaints of torture or cruel treatment related to 14 detainees from May 2021 to April 2022. The OHCHR stated the lack of investigations into complaints of torture and lack of protection against reprisals discouraged victims to come forward.
The Casla Institute for the Study of Latin America continued to denounce the construction of new places of torture used by the regime in collaboration with Cuban intelligence officers who actively participated in repression and trained the regime in methods of torture while sometimes performing torture themselves. The Casla Institute reported new torture patterns employed by the regime-aligned military, including hitting victims with a metal bar, submerging naked victims in ice-cold wells, inserting objects in the nose and ears, using burn-causing agents, injecting hallucinogens, and putting a gun in the victim’s mouth.
Impunity for security forces was a significant problem. Despite continued reports of police abuse and involvement in crime, particularly in the activities of illegally armed groups, including illegal and arbitrary detentions, extrajudicial killings, kidnappings, and the excessive use of force, the Maduro regime took no effective action to investigate individuals who committed human rights abuses. Corruption, inadequate police training and equipment, and insufficient central government funding, particularly for police forces in states and municipalities governed by opposition officials, reduced the effectiveness of security forces. NGOs noted that many victims did not report violent crimes to police or the regime due to fear of retribution or lack of confidence in police.
D. ARBITRARY ARREST OR DETENTION
The constitution prohibits the arrest or detention of an individual without a judicial order and provides for the accused to remain free while being tried, but judges and prosecutors often disregarded these provisions. NGOs such
as Foro Penal, the Committee for the Families of Victims of February - March 1989, the Institute for Press and Society, Espacio Publico, and PROVEA noted at least 2,000 open cases of arbitrary detentions; however, the Maduro regime rarely granted detainees the right to challenge the lawfulness of their detentions in court, even though the right to do so is stipulated by law. The regime arbitrarily detained individuals, including foreign citizens, for extended periods without criminal charges.
Misuse of International Law Enforcement Tools: There were credible reports the Maduro regime attempted to misuse international law enforcement tools, including Interpol Red Notices, for politically motivated purposes as a reprisal against specific individuals located outside the country. On August 4, regime attorney general Saab purportedly issued an arrest warrant for Miami-based journalist Carla Angola, for statements she made suggesting the United States should coordinate a drone attack against Maduro. Also on August 4, the First Tribunal of First Instance ratified an arrest warrant and extradition notice against exiled opposition leader Julio Borges for an alleged connection to the 2018 alleged drone attack against Maduro.
On September 22, following the transfer of the majority of shares in the ownership of fertilizer company Monomeros from Colombia back to the regime, the regime stated it filed for Interpol red notices against 23 opposition-linked managers who had been at the helm of the company since the interim government took it over in 2019. The regime accused the 23 of corruption and malfeasance.
F. ARBITRARY OR UNLAWFUL INTERFERENCE WITH PRIVACY, FAMILY, HOME, OR CORRESPONDENCE
State surveillance remained rampant, including through the assistance of telecom regulator the National Telecommunications Commission (CONATEL) and state-run telecommunications provider CANTV. Technical attacks against media outlets appeared to be linked to the armed forces.
The People’s Republic of China, through its telecommunications corporation Zhongxing Telecommunication Equipment Corporation, continued to provide 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 other than to obtain and use the card despite the known tracking methods. Chinese companies such as Huawei and the China National Electronics Import-Export Company also supported, financially and technologically, these surveillance methods.
On June 22, Spanish telecommunication company Telefonica revealed the Maduro regime increased requests to listen in on telephone conversations of citizens. According to Telefonica, the regime increased its requests from 234,932 in 2017 to 861,004 in 2021. Telefonica is required by law to comply with requests made by the regime. The Public Ministry, CICPC, and SEBIN are among the institutions able to request a telephone interception.
Freedom of Expression: The law makes conviction of insulting the president punishable by six to 30 months in prison without bail, with lesser penalties for insulting lower-ranking officials. The 2017 Constitutional Law against Hate, for Political Coexistence and Tolerance stipulates prison sentences of up to 20 years for persons convicted of violations. While the stated purpose of the law was to “promote peace and tolerance,” NGOs observed the vaguely written law could be used to silence political parties, activists, and civil society leaders as well as media outlets and journalists. Conviction of exposing another person to public contempt or hatred is punishable by prison sentences of one to three years and fines. In April, the OHCHR documented at least 34 cases of abuse of freedom of expression, including harassment, censorship, and seizure of equipment from media outlets, one radio station closure, the
suspension of three radio programs critical of the regime, and 41 blocks to webpages that included independent media outlets, NGOs, and sites related to internet security, by regime and private internet providers.
On April 18, Olga Mata and Florencio Gil were arrested for “inciting hate” after they published a video on TikTok that criticized high-level regime-aligned individuals such as Diosdado Cabello and called Maduro’s wife, Cilia Flores, a “widow.” Regime attorney general Saab, also mentioned in the TikTok video, announced the arrest, accusing both of “instigating the assassination of public figures.” The pair were released following a public outcry but were required to report to court monthly. Mata was also made to record an apology video.
Since 2017, the so-called law against hate was used to punish “hate crimes,” including messages on social media. The law was often used to arrest political dissidents and continue intimidation limiting their rights even when released by banning international travel and requiring regular court appearances.
According to a study by the NGO Un Mundo sin Mordaza, 93 percent of persons surveyed in the country considered that freedom of expression could not be fully exercised, and 26 percent responded they never believed they were safe when expressing their opinion or disseminating information. In the results of its Self-Censorship Survey in which 700 persons participated, the NGO concluded there was a clear lack of trust in the regime by citizens. In the survey, 565 persons indicated there was no possibility of expressing themselves in peaceful demonstrations due to fear of being attacked, harassed, or even killed by security forces. According to the study, 29 percent considered they exercised some level of self-censorship and 30 percent responded they almost always self-censored on social networks.
Libel/Slander Laws: Libel and slander are criminal offenses, punishable by one to three years’ imprisonment and a significant fine. Regime-aligned individuals engaged in reprisals against media organizations and individuals who publicly expressed criticism of Maduro or regime policy.
National Security: The law allows the government to suspend or revoke licenses when it determines such actions necessary in the interests of public order or security. The Maduro regime exercised control over the press through a public entity, the Strategic Center for Security and Protection of the Homeland, which is similar to the governmental entity Center for National Situational Studies. The two entities have similar mandates and are responsible for “compiling, processing, analyzing, and classifying” both regime-released and other public information with the objective of “protecting the interests and objectives of the state.”
The regime continuously used the law against organized crime and financing of terrorism to implicate and accuse political opponents of committing crimes.
D. FREEDOM OF MOVEMENT AND THE RIGHT TO LEAVE THE COUNTRY
The constitution provides for freedom of internal movement, foreign travel, emigration, and repatriation; however, the Maduro regime did not respect these related rights.
In-country Movement: The Maduro regime restricted the movement of some opposition leaders, at times refusing to allow them to board some domestic flights.
See the Department of State’s annual Trafficking in Persons Report.
Foreign Travel: Obtaining a passport remained difficult during the year. For three weeks in June, the Identification, Migration, and Immigration Administration Service webpage was inoperative. The regime repeatedly seized passports from journalists, members of the opposition, and National Assembly deputies at ports of entry without explanation as they attempted to depart the country. The regime reportedly charged exorbitant extraofficial rates for citizens, in U.S. dollars, to obtain passports or citizen services.
On August 24, the director of NGO Coalición para los Derechos Humanos, Alonso Media Roa, a prominent human rights advocate and defense lawyer for several high-profile military and nonmilitary political prisoners, was turned away at the Maiquetia International Airport in La Guaira and told by authorities he had an exit ban placed on him by the CICPC police division. Media Roa was told he was not allowed to leave the country and was ordered to present
himself at the CICPC regarding an open investigation and was not allowed to leave the country.
Due to continued border closures through much of the year, citizens traveling into and out of the country often had no choice but to use informal border crossings that largely were controlled by illegal armed groups. Activists and NGOs reported that citizens utilizing the crossings faced significant risks, such as gender-based violence and human trafficking, including forced labor, sexual servitude, and the forced recruitment of children into armed conflict at the
hands of criminal groups. Human traffickers used sea routes to transport victims to nearby countries, and migrant smugglers also sent refugees and migrants on dangerous sea journeys.
Individuals were often subjected to debt bondage or forced to pay a tax to illegal armed groups at the informal border crossing, increasing the vulnerability of migrants to labor exploitation, harassment, sexual violence, and human trafficking, including forced labor and sex trafficking. Many were vulnerable to recruitment, sometimes forced, into drug trafficking rings or illegal and other armed groups.
Political Parties and Political Participation: Opposition political parties and PSUV dissidents operated in a restrictive atmosphere characterized by intimidation, the threat of prosecution or administrative sanction on questionable charges, and very limited mainstream media access.
On June 4, regime-linked sympathizers interrupted an event in Zulia where Interim President Juan Guaidó was scheduled to promote the Unitary Platform’s electoral strategy. Regime-linked colectivos harassed those participating in the political activity and generated chaos by throwing chairs. Guaidó was unable to carry out his event as planned.
On June 11, Guaidó was attacked in the rural municipality of San Carlos in opposition-controlled Cojedes State while he engaged in public outreach. According to Guaidó and his team, the aggression was initiated by a group of approximately 60 persons led by PSUV militants and colectivos who pushed, beat, and threatened him. Several members of Guaidó’s team were also assaulted. The interim government’s press team reported the attack was led by the former PSUV gubernatorial candidate for Cojedes, Nosliw Rodríguez, purported 2021 national assembly (I-AN) PSUV deputy Marcos Mendoza, PSUV councilman Orlando Martinez, former assistant to the regime’s ambassador to Honduras Luis Casadiego, and I-AN PSUV deputy John Moreno. PSUV leader Iris Varela was also reportedly present.
On October 3, Guaidó published a video on Twitter showing a car allegedly driven by regime security forces following him and his team. Guaidó claimed he was constantly followed and watched by regime security forces such as FANB.
Retribution against Human Rights Defenders: The OHCHR recorded 154 incidents related to restrictions on civic and democratic space in the country, including 46 criminal cases, 26 reports of threats and harassment, 11 acts of violence, and 71 cases of discrimination of human rights defenders, journalists, and other members of civil society, including five women, on social media or in public broadcasts.
The United Nations or Other International Bodies: The Maduro regime was generally hostile toward international human rights bodies …
A. FREEDOM OF ASSOCIATION AND THE RIGHT TO COLLECTIVE BARGAINING
The code of military justice establishes arrest sentences between six months and one year for verbal abuse against a sentry, a public official, or the armed forces. This type of criminal offense was used against workers unconstitutionally subjected to military jurisdiction.
D. DISCRIMINATION WITH RESPECT TO EMPLOYMENT AND OCCUPATION
NGOs reported that public-sector employees faced discrimination and harassment for their political beliefs or activities. In 2021, the ILO expressed deep concern regarding the large number of reported instances of acts of discrimination at work, harassment, and dismissal of employees on the basis of political opinion, as inconsistent with the country’s obligations under ILO conventions on discrimination. In July, the NGO Fordisi, which worked with teachers’ unions, reported that 2,153 teachers in Carabobo, 700 in Guarico, 141 in Portuguesa, and six in Caracas stopped receiving a salary, a move activists said came in retaliation for speaking out against the regime’s labor practices.
Informal Sector: An estimated 40 percent of the population worked in the informal sector, where labor law and protections generally were not enforced, and labor violations occurred frequently. The regime made little effort to provide social protections to part-time workers or workers in the informal sector.
(emphasis added)
If forced to return to Venezuela, the applicant fears serious harm, including threats to his life and liberty, significant physical harassment, significant physical ill-treatment, significant economic hardship that threatens his capacity to subsist, denial of access to basic services that threatens his
capacity to subsist, and denial of capacity to earn a livelihood of any kind, threatening his capacity to
subsist, for reason of:
a)   Political opinion - current social media profile;
b) The political opinion of Venezuelan Government supporters;
c)   Imputed political opinion as a returnee from Australia after 7 years (see our email dated 25 May 2021) and resident of [State 1]; and
d) Membership of Particular Social Groups: ‘Commercial Pilot in Venezuela’ and ‘Resident of [State 1]’.
Country information clearly indicates that, if the applicant were to be able to resume his profession as a commercial pilot, he will be subject to unreasonable levels of government surveillance, unlawful detention at domestic airports and potentially serious harm in the event that he displays ‘resistance to authority’. Further to our above-mentioned email of 21 April 2016, we note that Venezuelans living abroad at the time when Carnets de la Patria were issued would be unable to demonstrate support for the Venezuelan government upon return, and therefore denied access to basic services.
13.3.Extracts from the applicant’s public Facebook profile.
The Hearing

The applicant appeared before the Tribunal at a hearing conducted in person on 14 July 2023, with the assistance of an interpreter and in the presence of the applicant’s representative.
The applicant gave evidence, summarised by the Tribunal as follows:
15.1.The applicant was born in [year deleted] in [State 1], Venezuela. He lived there with his parents and [sibling] until age 8 or 9 when his parents separated. Thereafter, he lived with his mother and [sibling]; his father moved out of the state and had limited contact with the family. His father was a [occupation 1] employed by [a government department], and his mother was a [occupation 2] who studied to become a [profession]. Both parents are retired.
15.2.The applicant finished high school in [year]. He had always wanted to be a pilot, however his mother didn’t earn enough to fund the training costs. It wasn’t until May 2011 that he was able to start his commercial pilot training, a full-time five day a week program, which he completed in January 2015. While studying, he met a pilot, the owner of a private flying company, who introduced him to the broader community of pilots, and allowed him to volunteer with the company to learn and gain experience.
15.3.During the presidential election campaign following the death of Chavez in 2013, the [Party leaders] flew with the company, including [Mr A] who was narrowly defeated by Chavez’s successor, Maduro. The applicant was among [a few] pilots and [a few] co-pilots in the company who regularly piloted flights to campaign events; he got to know the [Party leaders]and became increasingly politically aware and active. The army often stopped them at the airport for many hours to prevent the [Party leaders] from attending their campaign events. They routinely checked the pilots’ ID documents and flight plans, and fished for personal information about the pilots, however the applicant declined to answer their questions. The pilots were made to feel like they were doing something wrong, which was intended to stress them; you can’t fly a plane if you’re stressed. On other occasions, the applicant and fellow pilots were prevented from leaving their hotels so the [Party leaders] were unable to fly.
15.4.After Maduro came to power, the applicant started attending protests against the government. The protests were a push to remove the president from office, and also about food shortages and the failing economy. The applicant observed and experienced extreme harassment by the army at the many protests he attended.
15.5.Around midday, one day sometime in 2015, the applicant stopped at a[venue]. Uniformed men approached him saying they were the police; they questioned him, took his ID documents and phone, demanded his passcode, forced him into their vehicle, hit and threatened him, and told him it was a kidnapping. They took the applicant to an old, dirty house and put him in a small, dark room. They threatened to kill him, telling him he wouldn’t get out of this and they would keep checking on him. He begged to see his [child] and family. Around 12 hours later, they returned the applicant to the [venue]with his ID documents and phone, having stolen his cash. He doesn’t know what motivated the attack or whether the perpetrators were in fact police, however by seizing his ID documents and phone, they would have known his occupation and personal details. He received a couple of anonymous threatening calls after the attack.
15.6.After the attack, the applicant felt he had become a target; he was very afraid and couldn’t be normal. He continued to attend protests against the government, but didn’t feel safe, and tried to keep a low profile.
15.7.Protests would normally happen in the local community. At 3am one morning, sometime in 2015, street blockades were gathering near the house, which meant that he would be unable to get through later to go to work. He decided to leave for work immediately, and as he was exiting the property, a car arrived and it occupants started shooting at the blockades. He was becoming more terrified about living in Venezuela.
15.8.When the applicant got his commercial pilot licence in early 2015, he started working for a private company, [Company 1]. The political situation had significantly worsened by then, and protests were frequent. Whenever he went to work, he had to hand his phone over to the authorities; they would scroll through his contacts and messages before putting it through the x-ray device.
15.9.The applicant stopped flying later in 2015. Since Maduro came to power, over time, the flying company fell apart, the owner was kidnapped and fled Venezuela, and the other pilots in the company also fled Venezuela. The applicant didn’t work in 2016 before coming to Australia in July. He attended some protests, but realised that his efforts weren’t going to bring the government down or change the political situation.
15.10.The Tribunal referred to the translated police complaint that appeared to be lodged by his [Relative 1] [in]October 2016 in relation to an alleged assault and robbery involving the applicant as victim [in] April 2016. The Tribunal asked the applicant why his father would be lodging a complaint on his behalf months after the alleged incident and after the applicant had left the country. The applicant’s representative submitted that the authenticity of the police complaint document is unreliable and requested that it be withdrawn from the evidence. The applicant declined to make any further comment.
15.11.The applicant saw an advertisement about studying English in Australia. He felt he needed to get out Venezuela as tensions were rising and he was becoming more fearful for his safety. His plan was to study English in Australia, and to return to Venezuela when the situation calmed down. He came to Australia in July 2016, and his then partner and son followed in October. After completing the 12-month English course, the applicant believed the situation in Venezuela had only worsened, his mother having sent him a video of tear gas being sprayed at her house. The applicant’s mother started getting involved in anti-government activities after she retired.
15.12.The applicant decided he could not return, so applied for protection as a family in June 2017. They didn’t have any money to pay for legal advice as he and his former partner had been studying, so they prepared the application themselves.
15.13.After applying for a review of the delegate’s refusal decision, the applicant’s former partner and son withdrew from the application for review. She missed her family, and had become depressed and suicidal since being in Australia. The applicant didn’t feel he could stop her from returning to Venezuela with their [child], but wasn’t prepared to risk it himself. They live with and dependent on her parents, and he sends money to cover his [child]’s school fees. Having previously worked as a [job 1] for the Venezuelan government, his former partner no longer works.
15.14.The applicant doesn’t know much about the Carnet de la Patria or Homeland card. He’s never had a card and wouldn’t want one. He believes that to have a card is to support the government.
15.15.The applicant has disengaged from Venezuela now. As well as attending protests, he was an avid follower of politics and news when he was in Venezuela. He also attended the anti-Maduro demonstration and plebiscite at [Location]a few years ago, but has since not been involved in any such activities.
15.16.The Tribunal referred to the extracts from the applicant’s public Facebook profile dating back to when he was in Venezuela that his representative had provided to the Tribunal, and asked the applicant to explain in more detail. The applicant said he tried to lock his profile to avoid drawing attention to himself, however he couldn’t work out how to do it. He explained that [Mr A]was one of the [Party leaders]he flew around during the presidential campaign and who was defeated by Maduro; he was a supporter and followed him on Facebook. Anonymous V and La Guarimba are both anti-regime news sites. Noticias de Venezuela is more of a mainstream news site.
15.17.The Tribunal questioned the applicant about paragraph 16 of his recent statutory declaration:
I am unable to provide evidence of various aspects of my claims, such as my ‘Opposition’ support when voting elections, attendance at many protests (possibly over 100 from 2011 to 2016) and government surveillance. Some of the evidence that I submitted with respect to my departmental application contained errors such as incorrect dates. As I am unable to provide reliable evidence to verify the truth of those matters, I hereby withdraw any claims that relied upon that evidence.
The applicant said that he had done this on his lawyer’s advice. The Tribunal noted that the applicant had already given oral evidence about these issues, and therefore did not consider that his claims had been withdrawn.
15.18.The applicant has a new partner in Australia and their baby is due in October. She is applying for Australian citizenship. He worked as a [Job 2]until 2022, and since then as a [Job 3]then [Job 4]with[Company 2]. He wants to renew his pilot licence as that is his chosen occupation, however he currently can’t afford the fees.
15.19.The applicant never wants to return to Venezuela. He is too afraid to go back. He was for many years in Venezuela a supporter of the opposition. He fears that if he returns he will be targeted for his pilot work with the [other parties] during the campaign, and investigated about his anti-regime protests, and threatened and harmed as he was previously or killed. There’s nowhere safe he can live in Venezuela to avoid the authorities.
The Tribunal noted the representative’s written submissions. The representative spoke to the meaning of ‘political opinion’ in the relevant law, submitted that the applicant’s story is consistent with the country information, and that the applicant has well-founded fears of persecution in Venezuela based on the objective evidence. The representative also requested that, in the event the applicant does not satisfy the protection requirements, the Tribunal consider a recommendation for ministerial intervention given the applicant’s partner and soon-to-be-born child will be Australian citizens.
Country information
The Australian Government Department of Home Affairs Common Claims for Venezuela dated 5 November 2021 provides (inter alia) that:
17.1.Political opinion
Rival Presidential claimants Nicolás Maduro and Juan Guaidó have been locked in a power struggle since Guaidó proclaimed himself acting president on 23 January 2019 amid fierce protests over economic issues.[1] The United States (US) Department of State refers to Maduro’s administration as ‘the illegitimate Maduro regime’,[2] a description ‘not intended to indicate that the United States considers such entity a government’.[3] The most significant human rights issues in Venezuela are unlawful or arbitrary killings, including extrajudicial killings by security forces including government-sponsored colectivos, torture by security forces, detention and imprisonment of activists with political aims, harsh and life-threatening prison conditions, serious problems with the independence of the judiciary, and unlawful interference with privacy.[4]
[1] ‘Pope fears ‘bloodbath’ in Venezuela’, AFP [Agence France-Presse], 28 January 2019, 20190129090848
[2] 'Country Reports on Human Rights Practices for 2020 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, pp.1-2 Executive Summary, et seq., 20210331125015
[3] ‘2020 Report on International Religious Freedom: Venezuela’, Office of International Religious Freedom, United States Department of State, 12 May 2021, p.1 [Introduction]., 20210513110848
[4] ‘Country Reports on Human Rights Practices for 2020 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.2 Executive Summary, 20210331125015
The UN Human Rights Council, in a 27 September 2019 resolution, established an independent international fact-finding mission on Venezuela ‘to investigate extrajudicial executions, enforced disappearances, arbitrary detentions and torture and other cruel, inhumane or degrading treatment since 2014 with a view to ensuring full accountability for perpetrators and justice for victims’. The mission reported its findings to the Human Rights Council in September 2020 in two reports (summary and detailed).[5] It reported 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’.[6]
[5] ‘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.2 paragraphs 1 & 2, 20201102104217; '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.2 paragraphs 1 & 3, 20200917074633
[6] ‘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 22, 20201102104217; '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.66 paragraph 243, 20200917074633. There are detailed studies of 19 (of the 110 investigated) cases in the full report ‘Details of the security framework and the security institutions are at '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, pp.67- 196 paragraphs 246-997, 20200917074633.
The mission reported:
The Mission has reasonable grounds to believe that most of the violations and crimes documented in this report were committed as part of a widespread and systematic attack directed against a civilian population, with knowledge of the attack, pursuant to or in furtherance of two distinct State policies: Firstly, there was a policy to silence, discourage and quash opposition to the Government of President Maduro, including by targeting individuals who, through various means, demonstrated their disagreement with the Government, or were perceived as being against the Government, as well as their relatives and friends who were targeted for being associated with them. Secondly, there was a policy to combat crime, including by eliminating individuals perceived as “criminals” through extrajudicial execution.
… The Mission has reasonable grounds to believe that both the President and the Ministers of People’s Power for Interior Relations, Justice and Peace and for Defence, ordered or contributed to the commission of the crimes documented in this report, and having the effective ability to do so, failed to take preventive and repressive measures. …[7]
[7] ‘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, pp.18 & 19 paragraphs 160 & 164, 20201102104217. This is expanded upon at '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, pp.398-402 paragraphs 2086-2105, 20200917074633.
17.2.Other political opponents of the government
Widespread politically-motivated detentions occur in Venezuela. The Maduro government’s legitimacy is questioned by broad sectors of society.[8] According to FP, more than 12,800 people were arrested from 2014 (in a January 2019 report) in connection with anti-government protests;[9] and at least 15,045 people were detained for political reasons between January 2014 and May 2019; the majority in the context of demonstrations.[10] FP verified 15,688 arrests for political purposes in 2014-2020, 1745 of them of women.[11] 8900 had been conditionally released as of November 2019, but remained subject to criminal prosecution.[12]
[8] 'Religious Freedom in the World. Report 2021. Venezuela', Aid to the Church in Need (ACN), [20 April 2021,] p.[3], 20210423083901
[9] ‘Report: Military officers, relatives tortured in Venezuela’, Associated Press (AP), Lugo L A, 9 January 2019, 20200204083232. It has been contrastingly stated ‘From 1 January 2014 to 15 July 2020, the NGO Foro Penal registered 3,479 cases of politically motivated detention of which 902 (26 per cent) were selective detentions (with the remainder taking place in the context of protests).’: ‘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, 20201102104217; '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, 20200917074633.
[10] Human rights situation in the Bolivarian Republic of Venezuela. Report of the United Nations High Commissioner for Human Rights on the situation of Human rights in the Bolivarian Republic of Venezuela‘ (A/HRC/41/18), [United Nations High Commissioner for Human Rights,] United Nations Human Rights, Office of the High Commissioner, 5 July 2019, p.8 paragraphs 41, 20190708154125
[11] ‘Women Victims of Political Repression in Venezuela. Year 2020’, Foro Penal, [23 February 2021,] p.4, 20210604094142
[12] 'World Report 2020. Events of 2019', Human Rights Watch (HRW), 14 January 2020, pp.626-627, 20200115082903, which states ‘The Penal Forum counts more than 15,000 people arrested since 2014 in connection with protests, including demonstrators, bystanders, and people taken from their homes without warrants.’
After over a year of stonewalling AN,[13] on 30 March 2017 TSJ annulled AN’s constitutional functions, threatened to abolish parliamentary immunity, and assumed significant control over social, economic, legal, civil, and military policies.
[13] ‘Freedom in the World 2018. Venezuela Profile’, Freedom House, Accessed 2 February 2018, p.[3] & [2], NGED867A64
The TSJ action triggered large-scale street spring and summer protests. Security forces and colectivos used force, at times excessively, against protesters. Credible NGOs reported indiscriminate household raids, arbitrary arrests and use of torture, to deter protest. The government arrested thousands and tried hundreds of civilians in military tribunals.[14] It is estimated that 133 people were killed, 4000 were injured, and more than 5000 were arbitrarily detained during the April-July 2017 protests, IACHR reported in December 2017.[15] FP reported 5462 protest-related cases of arbitrary detention from April to December 2017.[16] Human Rights Watch reported that while no massive demonstrations occurred in 2018, security forces continued to repress spontaneous protests and carried out targeted arbitrary arrests of opponents or perceived opponents.[17] FP reported that 570 people were arbitrarily detained from August 2017 to April 2018 in the District Capital and 20 states.[18] FP reported 498 cases of arbitrary detention in 2018 to 15 November.[19]
[14] ’Country Reports on Human Rights Practices for 2017. Venezuela’, United States Department of State. Bureau of Democracy, Human Rights and Labor, pp.1-2, Executive Summary, 20 April 2018, OGD95BE927489
[15] ‘Democratic Institutions, the Rule of Law and Human Rights in Venezuela. Country Report’, Inter-American Commission On Human Rights, on OAS Organization of American States website, 31 December 2017, p.110 paragraph 193 (detailed at pp.128-141 paragraphs 237-256), CISEDB50AD9024
[16] ‘Country Reports on Human Rights Practices for 2018 - Venezuela’, United States Department of State, Bureau of Democracy, Human Rights, and Labor, 13 March 2019, p.10 Section 1.d, 20190314114120
[17] ‘Human Rights Watch World Report 2019’, Human Rights Watch, 17 January 2019, p.647, 20190118091502.
[18] ‘Human Rights Violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight. Report by the Office of the United Nations High Commissioner for Human Rights’, [United Nations. Office of the United Nations High Commissioner for Human Rights,] June 2018 [document created 21/6/2018], p.23, CIS7B839411554
[19] ‘Country Reports on Human Rights Practices for 2018 - Venezuela’, United States Department of State, Bureau of Democracy, Human Rights, and Labor, 13 March 2019, p.10 Section 1.d, 20190314114120
A UN human rights spokesman said more than 850 people were detained between 21 and 26 January, including 696 on 23 January, including children;[20] Amnesty International said more than 900 people were detained during protests in the five days, 770 of them in a single day.[21] According to FP, 527 people were detained for political motives in 2018 and 2019 from January to May 2019,[22] 2169 people were arbitrarily detained from January to 31 August 2019,[23] and by October 2019 2182 people had been arbitrarily detained.[24] FP reported that 793 people were arbitrarily deprived of their liberty at 31 May 2019,[25] at which date, since January 2014, 1437 people had been released unconditionally, 8598 had been conditionally released and were facing lengthy criminal proceedings, and 793 remained arbitrarily deprived of their liberty.
[20] ’More than 40 dead, 850 detained in Venezuela violence, U.N. says’, Reuters, 29 January 2019, 20190130141714
[21] ‘Human Rights in the Americas. 2019 Annual Report’ (AMR 01/1353/2020), Amnesty International, 2019 [sic for 27 February 2020], p.87, 20200228095304
[22] Human rights situation in the Bolivarian Republic of Venezuela. Report of the United Nations High Commissioner for Human Rights on the situation of Human rights in the Bolivarian Republic of Venezuela‘ (A/HRC/41/18), [United Nations High Commissioner for Human Rights,] United Nations Human Rights, Office of the High Commissioner, 5 July 2019, p.8 paragraphs 41, 20190708154125
[23] ‘Country Reports on Human Rights Practices for 2019 - Venezuela’, United States Department of State Bureau of Democracy, Human Rights and Labor, 11 March 2020, p.9 Section 1.e, 20200312111107
[24] ‘Human Rights in the Americas. 2019 Annual Report’ (AMR 01/1353/2020), Amnesty International, 2019 [sic for 27 February 2020], p.87, 20200228095304
[25] Human rights situation in the Bolivarian Republic of Venezuela. Report of the United Nations High Commissioner for Human Rights on the situation of Human rights in the Bolivarian Republic of Venezuela‘ (A/HRC/41/18), [United Nations High Commissioner for Human Rights,] United Nations Human Rights, Office of the High Commissioner, 5 July 2019, p.8 paragraphs 41, 20190708154125
Others had been released without having been brought before a judge.[26] On 16 and 21 November 2019, national protests organised by opposition members, students and government supporters were met by the deployment of considerable security forces who prevented some protestors from gathering and made more than 20 arrests. A month later at least five of these people (in Lara state) were still detained.[27] The independent international fact-finding mission in September 2020 reported that, in cases it investigated of repression of government opponents, the State’s principal targets commonly included ‘social activists and political leaders at the forefront of protests’.[28] FP reported 413 ‘politically motivated’ arbitrary arrests at October 2020; these increased following the declaration of a state of emergency in response to the COVID-19 pandemic in March 2020.[29] The fact-finding mission in March 2021 reported that, since its September 2020 report, civil society organisations had recorded over 100 cases of detentions in protests.[30]
[26] Human rights situation in the Bolivarian Republic of Venezuela. Report of the United Nations High Commissioner for Human Rights on the situation of Human rights in the Bolivarian Republic of Venezuela‘ (A/HRC/41/18), [United Nations High Commissioner for Human Rights,] United Nations Human Rights, Office of the High Commissioner, 5 July 2019, p.8 paragraphs 41, 20190708154125
[27] ‘Venezuela: High Commissioner Bachelet details plans for new human rights assistance’, Bachelet M, United Nations High Commissioner for Human Rights, 18 December 2019, 20191219135917
[28] Commissioner for Human Rights, 18 December 2019, 20191219135917 77 ‘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 22, 20201102104217; '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.66 paragraph 243, 20200917074633. There are detailed studies of 19 (of the 110 investigated) cases in the full report ‘Details of the security framework and the security institutions are at 'Detailed findings of the independent international fact finding mission on the Bolivarian Republic of Venezuela (A/HRC/45/CRP.11)', [Independent International Fact[28]Finding Mission on the Bolivarian Republic of Venezuela,], United Nations Human Rights Council, 15 September 2020, pp.68- 196 paragraphs 248-997, 20200917074633.
[29] 'Amnesty International Report 2020/21. The State of the World’s Human Rights’, Amnesty International, 6 April 2021, pp.390- 395 ‘Venezuela’ at 390, 20210407093348
[30] ‘Statement by Marta Valiñas, Chairperson of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela, at the 46th session of the Human Rights Council’, Valiñas M, United Nations Human Rights Council, 10 March 2021, 20210519113109
Politically-motivated detentions without a warrant occur in Venezuela. Amnesty International reported in April 2017 that politically-motivated detentions had taken place without a warrant under broad Criminal Code provisions such as “treason against the fatherland,” “terrorism or theft of military effects” and “rebellion”, which entail heavy sentences for which pre-trial detention is common.[31] A commentator claimed in January 2020 that ‘They’re accused of terrorism, financing terrorism and manufacturing explosives’, but ‘are basically behind bars for protesting against Maduro’.[32]
[31] 'Silenced by Force. Politically-Motivated Arbitrary Detentions in Venezuela', Amnesty International, 26 April 2017, p.12, CISEDB50AD8611
[32] 'How The Maduro Regime Uses Political Prisoners', Sarmiento M, Caracas Chronicles, 22 January 2020, 20200219145320
The Venezuelan authorities hold hundreds of political prisoners. Freedom House reported that the number of political prisoners increased from 103 at end 2016 to over 600 in July 2017, and that most of the 600 were released later in the year.[33] FP reported 317 political prisoners held at 19 November 2017 (down from 620 at 31 July 2017).[34] Opposition politicians and human rights NGOs attributed the reduction largely to the significant decrease in large-scale protest following the July 2017 ANC elections.[35]
[33] ‘Freedom in the World 2018. Venezuela Profile’, Freedom House, Accessed 2 February 2018, pp.[8]-[9], NGED867A64
[34] ‘Democratic Institutions, the Rule of Law and Human Rights in Venezuela. Country Report’, Inter-American Commission On Human Rights, on OAS Organization of American States website, 31 December 2017, p.95 paragraph 165, CISEDB50AD9024
[35] ‘Country Reports on Human Rights Practices for 2018 - Venezuela’, United States Department of State, Bureau of Democracy, Human Rights, and Labor, 13 March 2019, p.10 Section 1.d, 20190314114120
Latin American Herald Tribune news website reported in May 2018 338 political prisoners in Venezuela according to FP and the Organization of American States (OAS).[36] After UNHCHR Bachelet demanded the release of political prisoners in July 2019, 300 people were freed to September; as were prisoners accused of aggression, fraud, and homicide.[37] FP reported 388 political prisoners at 30 December 2019,[38] and 351 political prisoners at 30 December 2020[39] and 26 female political prisoners at 31 December 2020, including two military officials; 12 of them were under house arrest and 14 in detention centres, including three military facilities.[40] On 31 August 2020 the government announced the conditional “pardon” of 110 political prisoners, rescindable if they “return[ed] to any act of terrorism, violence, or coup mongering”, as determined by the authorities. According to FP only 50 were in custody; 23 had been released and 37 were AN deputies in exile, in foreign embassy asylum in Caracas, or facing prosecution. Since most were not convicted or even charged, their matters were dismissed rather than pardoned.[41]
[36] ‘After Fraudulent Election, Venezuela President Sworn in Before Illegitimate Constituent Assembly’, Latin American Herald Tribune, 24 May 2018, CXBB8A1DA28011
[37] 'How The Maduro Regime Uses Political Prisoners', Sarmiento M, Caracas Chronicles, 22 January 2020, 20200219145320
[38] 'Venezuelan Photojournalist Released After 16 Months in Military Prison', Cobus P, Voice of America (VOA), 7 January 2020, 20200109081302; 'How The Maduro Regime Uses Political Prisoners', Sarmiento M, Caracas Chronicles, 22 January 2020, 20200219145320. FP ‘considered that 388 people were imprisoned for political reasons, including 18 women and 370 men’ in 2019: ‘Human Rights in the Americas. 2019 Annual Report’ (AMR 01/1353/2020), Amnesty International, 2019 [sic for 27 February 2020], p.87, 20200228095304. FP in November 2019 reported ‘nearly 400’ political prisoners: 'World Report 2020. Events of 2019', Human Rights Watch (HRW), 14 January 2020, p.626, 20200115082903; 'Country Reports on Human Rights Practices for 2020 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.13 Section 1.e, 20210331125015
[39] ‘Freedom in the World 2021 - Venezuela', Freedom House, 3 March 2021, section B1, 20210304160658; 'Country Reports on Human Rights Practices for 2020 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.13 Section 1.e, 20210331125015. Cf. ‘As of September 30, prisons and intelligence headquarters held 348 political prisoners, according to the Penal Forum’: 'World Report 2021. Events of 2020', Human Rights Watch, 13 January 2021, pp.732-742 ‘Venezuela’ at 733, 20210114072851
[40] ‘Women Victims of Political Repression in Venezuela. Year 2020’, Foro Penal, [23 February 2021,] p.3, 20210604094142
[41] 'Country Reports on Human Rights Practices for 2020 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, pp.13-14 Section 1.e, 20210331125015. Cf. 'World Report 2021. Events of 2020', Human Rights Watch, 13 January 2021, pp.732-742 ‘Venezuela’ at 733, 20210114072851
The independent international fact-finding mission in March 2021 reported that since its September 2020 report, according to civil society organisations 70-odd political prisoners had been released from detention with non-custodial measures.[42] A mid-2021 European Union report noted that ‘persecution of political opponents’ continued in 2020, FP reporting a ‘steady’ 350 to 400 political prisoners.[43]
[42] ‘Statement by Marta Valiñas, Chairperson of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela, at the 46th session of the Human Rights Council’, Valiñas M, United Nations Human Rights Council, 10 March 2021, 20210519113109
[43] ‘EU Annual Report On Human Rights And Democracy In The World 2020 Country Updates’, [European Union,] [21 June 2021,] on European External Action Service (EEAS) website, p.304, 20210827094726
Venezuelan authorities arbitrarily detain people for extended periods without criminal charges.[44] The US Department of State reported of the year 2017 and since that authorities arbitrarily detained people, including foreign citizens, for extended periods without criminal charges; and that FP and other local NGOs had noted at least 2000 open cases of arbitrary detention, yet authorities rarely granted detainees formal means to present petitions, and delayed proceedings challenging detentions, stretching trials for years.[45] 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.[46] FP reported 281 cases of arbitrary detention from 1 January to 31 July 2020.[47]
[44] 'Country Reports on Human Rights Practices for 2019 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 11 March 2020, p.8 Section 1.d, 20200312111107; 'Country Reports on Human Rights Practices for 2020 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.9 Section 1.d, 20210331125015
[45] ‘Country Reports on Human Rights Practices for 2018 - Venezuela’, United States Department of State, Bureau of Democracy, Human Rights, and Labor, 13 March 2019, pp.7 & 10 Section 1.d, 20190314114120; 'Country Reports on Human Rights Practices for 2019 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 11 March 2020, p.8 Section 1.d, 20200312111107; 'Country Reports on Human Rights Practices for 2020 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.9 Section 1.d, 20210331125015
[46] ‘Human Rights in the Americas. 2019 Annual Report’ (AMR 01/1353/2020), Amnesty International, 2019 [sic for 27 February 2020], p.87, 20200228095304
[47] ‘Country Reports on Human Rights Practices for 2020 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.10 Section 1.c, 20210331125015
Venezuelan authorities have disregarded judicial release warrants. Amnesty International reported in February 2020 that judicial release warrants were frequently disregarded.[48] In December 2017, 44 people arbitrarily detained for what local NGOs considered to have been political reasons were released with alternative restrictions on their freedom.[49] In January 2020 FP said that not certifying political prisoner lists allows authorities to announce the “release” of people who are no longer detained, inflating reported release sizes.[50] On 6 January 2020 the National Roundtable for Peaceful Dialogue - of the ruling PSUV, a number of minority opposition parties (the others refused to take part), and civil leaders including the Catholic Church - announced the release of 14 jailed opposition figures. The majority had been arrested during the 2014 and 2017 anti-government street protests.[51] However, three were members of the Alirio Cara Cortá criminal gang, imprisoned in June 2019 for extortion and kidnapping, Human rights activist Marino Alvarado said the regime had taken the opportunity to release common criminals with political prisoners.[52]
[48] ‘Human Rights in the Americas. 2019 Annual Report’ (AMR 01/1353/2020), Amnesty International, 2019 [sic for 27 February 2020], p.87, 20200228095304
[49] ‘Amnesty International Report 2017-18’, Amnesty International, 22 February 2018, pp.393-397 ‘Venezuela’ at pp.394-395, NGED867A612
[50] 'How The Maduro Regime Uses Political Prisoners', Sarmiento M, Caracas Chronicles, 22 January 2020, 20200219145320
[51] 'Venezuelan Government and Opposition Fraction Announce Release of 14 ‘Political Prisoners’', Dobson P, Venezuelanalysis.com, 6 January 2020, 20200109101625
[52] 'How The Maduro Regime Uses Political Prisoners', Sarmiento M, Caracas Chronicles, 22 January 2020, 20200219145320
UNHCHR Bachelet stated in September 2019 that the authorities had released 83 people (probably since July), including those whose detention was considered to be arbitrary by the Working Group on Arbitrary Detention, but other people whose cases had been pointed out by her Office were still in detention, and Judge Afiuni and journalist Braulio Jatar had obtained only conditional releases.[53] In the last quarter of 2019, the United Nations Office of the High Commissioner for Human Rights (UN OHCHR) documented, and submitted for consideration to the inter-institutional Coordination Committee, 118 cases of detained people which it requested to be urgently addressed due to health reasons, judicial delays, non-execution of judicial release orders, and/or continued detention despite completion of their sentences.[54] The independent international fact-finding mission in March 2021 reported that criminal proceedings were ongoing in over two-thirds of the 110 cases of arbitrary detention against political and military dissidents that it investigated for its September 2020 report.[55]
[53] 'Oral Update on the Human Rights Situation in the Bolivarian Republic of Venezuela', Bachelet M, UN High Commissioner for Human Rights, United Nations Office of the High Commissioner for Human Rights (OHCHR), 9 September 2019, 20190910132410
[54] ‘Venezuela: High Commissioner Bachelet details plans for new human rights assistance’, Bachelet M, United Nations High Commissioner for Human Rights, 18 December 2019, 20191219135917
[55] ‘Statement by Marta Valiñas, Chairperson of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela, at the 46th session of the Human Rights Council’, Valiñas M, United Nations Human Rights Council, 10 March 2021, 20210519113109
Venezuelan authorities have subjected political detainees and prisoners to mistreatment, going as far as torture. The director of the Fundación para el Debido Proceso (Foundation for Due Process), Jackeline Sandoval de Guevara, stated in January 2020 that, though no prisoners are guaranteed due process, common criminals receive better treatment than political prisoners, who are subjected to ill-treatment including torture, both in common and military prisons.[56]
[56] 'How The Maduro Regime Uses Political Prisoners', Sarmiento M, Caracas Chronicles, 22 January 2020, 20200219145320
The independent international fact-finding mission reported in September 2020 that it had investigated 33 cases in which it found reasonable grounds to believe that SEBIN ‘arbitrarily arrested, detained and/or tortured or ill-treated people for political motives’,[57] and 77 cases in which DGCIM ‘arrested, detained and tortured current and former military officials and civilians associated with them’.[58] Cases it reviewed suggested that DGCIM agents’ levels of violence increased markedly from 2017.[59]
[57] ‘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.6 paragraph 38, 20201102104217; '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.75 paragraph 265, 20200917074633. There are detailed studies of 13 (of the 33 investigated) cases in ‘Details of the security framework and the security institutions are at ‘Report of the independent international fact-finding mission on the Bolivarian Republic of Venezuela. Advance Unedited Version’ (A/HRC/45/33), Independent international fact[57]finding mission on the Bolivarian Republic of Venezuela, [United Nations] Human Rights Council, 15 September 2020, pp.6-7 paragraphs 37-54, 20201102104217; and '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, pp.75-83 paragraphs 265-305, 20200917074633
[58] ‘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.7 paragraph 56, 20201102104217; '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.83 paragraph 306, 20200917074633. There are detailed studies of 8 (of the 77 investigated) cases in ‘Details of the security framework and the security institutions are at ‘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, pp7-8 paragraphs 55-70, 20201102104217; and '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, pp.83-90 paragraphs 306-347, 20200917074633.
[59] ‘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.8 paragraph 64, 20201102104217.
17.3.Economic conditions
Most households in Venezuela are in income poverty, and unable to meet the cost of a basic food basket. Venezuela's 2017 GDP per capita has been variously estimated, including at USD 6850.10,[60] USD 12,400[61] and USD 13,800.[62] While the official national unemployment rate in 2017 was 8.1 per cent,[63] others estimated it to be 26.4 per cent.[64] The July 2020 National Survey on Living Conditions (ENCOVI) reported that 96 per cent of households in Venezuela were in income poverty and 79 per cent in extreme income poverty and unable to purchase the basic food basket.[65]
ENCOVI, a study by three Venezuelan universities, had found that in 2017 poverty affected 87 per cent of the population and extreme poverty 61.2 per cent (extreme poverty had affected 23.6 per cent in 2014).[66] In September 2019 the minimum salary equated to USD 2 per month, in comparison with USD 7 in June, affecting the ability to purchase basic foods, medicine, and other essential goods. A family needed the equivalent of 41 minimum monthly salaries to cover the basic food basket. The de facto dollarisation in various sectors of the economy exacerbated inequalities.[67] The Centre for Documentation and Social Analysis of the Venezuelan Federation of Teachers (CENDAS-FVM) reported in August 2020 that the basic family food basket cost was the equivalent of 184 minimum monthly salaries.[68] By an August 2020 survey of 420 families, a family of five needed the equivalent of 116 minimum monthly salaries to cover the basic food basket, and 73 per cent of the families did not have enough food.[69]
By the 2020-2021 ENCOVI, based on February to April 2021 questionnaires by 17,402 families in 14,000 households in 21 of the 23 states, released on 29 September 2021, 94.5 per cent of Venezuelans live in poverty, a figure unmatched elsewhere in the region, and 76.6 per cent live in extreme poverty, up from 67.7 per cent the previous year. The report attributed the increase both to the COVID-19 pandemic and to chronic fuel shortages, a major obstacle to employment.[70] The 2020-2021 ENCOVI report estimated that GDP contracted 74 per cent from 2014 to 2020.[71]
17.4.Welfare and social services
The government responded to mid-2016 shortages, particularly of food, which led to rioting and looting in a number of cities, by replacing a large part of the retail food distribution network with Local Supply and Production Committees (Comités Locales de Abastecimiento y Producción[72](CLAPs), using both the military and political organisations affiliated to the PSUV. The private sector was legally obliged to sell 50 per cent of its production to the government for distribution through this network. The scheme reduced the number and length of queues, a frequent trigger for riots, and enabled the government to use food as a political weapon, favouring its supporters and the politically docile.[73] The Documentation and Analysis Centre for Workers reported that in December 2017 the basket of consumer goods for a family of five, which is used to define the consumer price index, was 60 times the minimum wage, representing a 2123 per cent increase since November 2016. The government failed to acknowledge the worsening food shortage caused by the economic and social crises. In its Global Report on Food Crises 2017, the UN Food and Agriculture Organization stated that it lacked reliable official data on Venezuela and that the deepening of the critical economic situation could lead to a greater absence of consumer goods such as food and medical supplies.[74] According to Reuters news agency in 2018, life in Venezuela’s poor barrios (neighbourhoods) ‘revolves around the CLAP boxes’, received, according to the government, by six million families: ‘Stamped with the faces of Maduro and Chavez, the CLAP boxes usually contain rice, pasta, grains, cooking oil, powdered milk, canned tuna and other basic goods. Recipients pay 25,000 bolivars per box, or about [US]$0.12 at the black market rate. That is a godsend in a country where the minimum monthly wage is less than $2 at that rate - and would be swallowed up by two boxes of eggs or a small tin of powdered milk.’ Recipients told Reuters the boxes often arrived half-full and only every few months, and even more sporadically outside of the capital Caracas.[75] Amnesty International stated that food distribution systems, such as CLAP’s, in 2020 ‘continued to fail to meet nutritional needs and operated according to politically discriminatory criteria’.[76]
President Maduro introduced the Carnet de la Patria (Homeland Card,[77] or Fatherland Card[78]) on 29 December 2016 as an electronic card which would initially serve to ration and distribute the food sold by the CLAP system and social missions [[79]].[80] There was immediate adverse reaction that the government was preparing to increase social control and retaliation against dissent.[81] Opposition political leaders said the card was a means to collect information to limit political activism.[82] The Carnet de la Patria program became by 2020 the Sistema Patria (Fatherland System,[83] or Homeland System[84]) web platform through which Venezuelans could register personal and family data to receive social benefits.[85] Citizens registered with the platform have received bonus public salaries, extra state benefits and priority COVID-19 vaccinations.[86] Freedom House reported in October 2020 that, in ‘the absence of personal data protection legislation, the destination, storage, and ultimate purpose of the government’s collection of information remains unknown’.[87] Netherlands Ministry of Foreign Affairs cited a February 2020 ‘confidential source’ saying that while they did not know ‘to what extent’ voting behaviour could be assessed by using the Homeland Card, ‘people who have voted for the opposition have been threatened and have experienced difficulties in obtaining social services’.[88]
17.5.State protection
Venezuela is formally a multiparty constitutional republic, but for over a decade political power has been concentrated in a single party with an increasingly authoritarian executive exercising significant control over the legislative, judicial, citizens’, and electoral branches of government.[89]
…No independent government institutions remain to check executive power.[90] The government stripped power from the opposition-led legislature and represses dissent through often-violent crackdowns on street protests, jailing opponents and, in violation of international law, prosecuting more than 840 civilians in military courts.[91] The outgoing PSUV-controlled legislature in late 2015 ‘stacked’ the TSJ with its own appointees, and the ANC subsequently installed over a dozen regime loyalists on the TSJ. High courts generally do not rule against the government.[92] Supreme Court members have publicly rejected the separation of powers principle and have pledged to advance the government’s political agenda, and the Court has consistently upheld abusive practices.[93] In the World Justice Project (WJP) Rule of Law Index 2017–2018, based on surveys of households and experts, Venezuela (in which 1000 respondents were surveyed in 2016) ranked 113th of 113 countries.[94]
[60] ‘The Bolivarian Republic of Venezuela [fact sheet]’, Australian Government Department of Foreign Affairs and Trade (DFAT), [December 2017], [‘updated biannually; June and December’] [document created 14/12/2017], CISEDB50AD8623
[61] '[The World Factbook.] Venezuela', [United States.] Central Intelligence Agency, 'Page last updated on May 08, 2018', at heading ‘Economy:: VENEZUELA’, CIS7B839411036
[62] ‘Freedom in the World 2018. Venezuela Profile’, Freedom House, Accessed 2 February 2018, p.[1], NGED867A64
[63] ‘Unemployment, total (% of total labor force) (modelled ILO estimate)’ n.d., The World Bank, Accessed 29 May 2017, CISEDB50AD4306
[64] '[The World Factbook.] Venezuela', [United States.] Central Intelligence Agency, 'Page last updated on May 08, 2018', at heading ‘Economy:: VENEZUELA’, CIS7B839411036
[65] Amnesty International Report 2020/21. The State of the World’s Human Rights’, Amnesty International, 6 April 2021, pp.390-395 ‘Venezuela’ at 394, 20210407093348; ‘Venezuela: Human rights lose whilst impunity prevails: Amnesty International submission for the UN Universal Periodic Review, 40th session of the UPR working group, January 2022' (AMR 53/4488/2021), Amnesty International, 21 July 2021, p.10 including footnotes 37 & 38, 20210729080757
[66] ‘Human Rights Violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight. Report by the Office of the United Nations High Commissioner for Human Rights', Office of the United Nations High Commissioner for Human Rights (OHCHR), June 2018 [document created 21/6/2018], p.3, CIS7B839411554. Stated as 61 per cent in ‘A Double-Edged Sword. Protection Risks Facing Venezuelan Children During the COVID-19 Pandemic’, World Vision, 2020 [released 28 October 2020], pp.11 & 10, 20201104071650.
[67] ‘Oral Update on the Human Rights Situation in the Bolivarian Republic of Venezuela’, Bachelet M, United Nations High Commissioner for Human Rights, United Nations Human Rights Office of the High Commissioner, 9 September 2019, 20190910132410
[68] 'Amnesty International Report 2020/21. The State of the World’s Human Rights’, Amnesty International, 6 April 2021, pp.390-395 ‘Venezuela’ at 394, 20210407093348; ‘Venezuela: Human rights lose whilst impunity prevails: Amnesty International submission for the UN Universal Periodic Review, 40th session of the UPR working group, January 2022' (AMR 53/4488/2021), Amnesty International, 21 July 2021, p.10 including footnote 35 & p.37 at recommendation 133.223, 20210729080757
[69] ‘A Double-Edged Sword. Protection Risks Facing Venezuelan Children During the COVID-19 Pandemic’, World Vision, 2020 [released 28 October 2020], pp.13 & 10, 20201104071650. Cf. ‘World Vision, a global Christian humanitarian organization, conducted a survey of 420 households in Caracas and the neighboring state of Miranda in August 2020 to determine how the pandemic had affected the risks faced by children. Respondents were those aged 30 and over, of which 71% were women. "The problems that put children at greater risk during the pandemic are associated with food shortages, increased child labor (...) domestic violence and neglect," World Vision said in the study, which was released in November.’: 'Pandemic's hard realities worsen Venezuelan child labor crisis', Ramirez C E & Sequera V, Reuters, Thomson Reuters Foundation, 10 May 2021, 20210519091004
[70] ‘Extreme poverty in Venezuela rises to 76.6% - study’, Reuters, 30 September 2021, 20211027113203; ‘Encovi 2021: Venezuela Is The Poorest Country in Latin America’, Soto N, Caracas Chronicles, 30 September 2021, 20211027115322; ‘Venezuela crisis: Three in four in extreme poverty, study says’, BBC News, 30 September 2021, 20211027124240; ‘AMERICA/VENEZUELA - National survey (ENCOVI): poverty at the highest levels, employment decreases, only 5% of emigrants return’, Agenzia Fides, 1 October 2021, 20211027123245
[71] ‘Venezuela crisis: Three in four in extreme poverty, study says’, BBC News, 30 September 2021, 20211027124240
[72] ‘For poor Venezuelans, a box of food may sway vote for Maduro’, Andreina Aponte & Ana Isabel Martinez, Reuters, 12 March 2018, CXBB8A1DA34199
[73] ‘Watch List 2017‘, International Crisis Group (Brussels: Special Report Nº3, 24 February 2017), p.35, on Refworld website, CISEDB50AD378
[74] ‘Amnesty International Report 2017-18’, Amnesty International, 22 February 2018, pp.393-397 ‘Venezuela’ at p.397, NGED867A612
[75] ‘For poor Venezuelans, a box of food may sway vote for Maduro’, Andreina Aponte & Ana Isabel Martinez, Reuters, 12 March 2018, CXBB8A1DA34199
[76] March 2018, CXBB8A1DA34199 239 'Amnesty International Report 2020/21. The State of the World’s Human Rights’, Amnesty International, 6 April 2021, pp.390-395 ‘Venezuela’ at 394, 20210407093348
[77] ‘More than 16 Million Venezuelans Enrolled in the Carnet de la Patria System’, RNV (Radio Nacional de Venezuela), 2 November 2017, now only accessible on Internet Archive Wayback Machine website, captured 21 February 2018, CXC90406621214; ‘Freedom on the Net 2017 - Venezuela’, Freedom House, 14 November 2017, p.20, NG2A465F5210; ‘Transparency International denounces “Venezuelan apartheid”’, MercoPress, 17 March 2018, CXBB8A1DA26569; ‘Country Reports on Human Rights Practices for 2017 – Venezuela’, United States Department of State. Bureau of Democracy, Human Rights and Labor, 20 April 2018, p.27 Section 3, OGD95BE927489; ‘President Maduro's Likely Re-election in Breadline Venezuela’, Gunson P, International Crisis Group, 17 May 2018, CIS7B839411363.
[78] ‘With low turnout, Venezuela’s election will create what opponents call ‘puppet congress’’, Washington Post, The, 31 July 2017, CXC90406611372; ‘Venezuela's Maduro re-elected amid outcry over vote’, Reuters, 20 May 2018, CXBB8A1DA27642; ‘Poor Venezuelans crowd pro-Maduro stations in hope of vote 'prize'’, Luc Cohen & Francisco Aguilar, Reuters, 21 May 2018, CXBB8A1DA27653; 'Venezuela. Humanitarian crisis. Thematic report - 23 May 2018', ACAPS, 23 May 2018, pp.3 & 8, CIS7B839411184; ‘Maduro's tweeters, activists cash in on Venezuela election win’, Berwick A, Reuters, 26 May 2018, CXBB8A1DA34198.
[79] ‘Carnet de la Patria ha otorgado protección social a más de 250.000 familias venezolanas [Carnet de la Patria has granted social protection to more than 250,000 Venezuelan families]’, AVN [Agencia Venezolana de Noticias], Gobierno del Estado Bolivariano de Yaracuy [Government of the Bolivarian State of Yaracuy], 16 May 2017, CXC90406621223 (Google Translate translation ore%2F14885-Carnet-de-la-Patria-ha-otorgado-proteccin-social-a-ms-de-250000-familias-venezolanas%20)
[80] ‘“Carnet de la patria”: el nuevo racionamiento de comida en Venezuela [“Homeland card”: the new food rationing in Venezuela]’, Avendaño O, Panam Post, 29 December 2016, CIS38A80129134 (Google Translate translation ‘Carnet de la Patria. El apartheid revolucionario’ [Homeland Card. Revolutionary apartheid], Transparencia Venezuela [Transparency Venezuela], undated [2018], [document created 15 March 2018], p.5, CIS7B839419024; ‘Special Report: How ZTE helps Venezuela create China-style social control’, Berwick A, Reuters, 15 November 2018, 20211028102358.
[81] ‘“Carnet de la patria”: el nuevo racionamiento de comida en Venezuela [“Homeland card”: the new food rationing in Venezuela]’, Avendaño O, Panam Post, 29 December 2016, CIS38A80129134 (Google Translate translation ‘Freedom on the Net 2017 - Venezuela’, Freedom House, 14 November 2017, p.20, NG2A465F5210; the reference in footnote ‘147 Yoerli Viloria Diario de Los Andes, “El Carnet de la Patria pone en peligro la privacidad” [The Homeland Card endangers privacy] January 29, 2017, is not accessible
[83] 'Freedom on the Net 2020. Venezuela', Freedom House, [14 October 2020], p.[26] section C5, 20201105094017
[84] '‘Sistema Patria’: a new digital tool for social control in Venezuela', Singer F, El Pais, 24 April 2021, 20210603091407
[85] 'Freedom on the Net 2020. Venezuela', Freedom House, [14 October 2020], p.[27] section C5, 20201105094017
[86] '‘Sistema Patria’: a new digital tool for social control in Venezuela', Singer F, El Pais, 24 April 2021, 20210603091407
[87] 'Freedom on the Net 2020. Venezuela', Freedom House, [14 October 2020], pp.[27] & [26] section C5, 20201105094017
[88] 'General Country of Origin Information Report Venezuela (June 2020)', Netherlands Ministry of Foreign Affairs, 11 June 2020, p.36 including footnote 323, 20200806083533
[89] 'Country Reports on Human Rights Practices for 2019 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 11 March 2020, p.1 Executive Summary, 20200312111107; 'Country Reports on Human Rights Practices for 2020 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.1 Executive Summary, 20210331125015
[90] 'World Report 2020. Events of 2019', Human Rights Watch (HRW), 14 January 2020, pp.625 & 627, 20200115082903. Regarding the judiciary see also ‘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.3 paragraph 17, 20201102104217; '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.39-43 paragraphs 148-165, 20200917074633; and 'World Report 2021. Events of 2020', Human Rights Watch, 13 January 2021, pp.732-742 ‘Venezuela’ at 736, 20210114072851.
[91] 'World Report 2020. Events of 2019', Human Rights Watch (HRW), 14 January 2020, pp.625 & 627, 20200115082903; ‘Human Rights Watch World Report 2019’, Human Rights Watch, 17 January 2019, pp.645 & 649, 20190118091502.
[92] 'Freedom in the World 2019 - Venezuela', Freedom House, 5 February 2019, sections ‘Overview’ & F1, 20190218085724. See also 'Freedom in the World 2020 – Venezuela', Freedom House, 4 March 2020, sections ‘Overview’ (p.[2]) & F1 (p.[17]), 20200305095111
[93] 'World Report 2020. Events of 2019', Human Rights Watch (HRW), 14 January 2020, p.629, 20200115082903; 'World Report 2021. Events of 2020', Human Rights Watch, 13 January 2021, pp.732-742 ‘Venezuela’ at 736, 20210114072851 308 ‘World Justice Project Rule of Law Index 2017-2018’, World Justice Project, 31 January 2018, pp.151, 163, 3, 29 & 31, CIS7B83941372
[94] 'Country Reports on Human Rights Practices for 2019 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 11 March 2020, p.1 Executive Summary, 20200312111107; 'Country Reports on Human Rights Practices for 2020 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.1 Executive Summary, 20210331125015

The Human Rights Watch World Report 2023, Venezuela: Events of 2022, provides (inter alia) that:
18.1.In November 2021, the International Criminal Court (ICC) prosecutor Karim Khan opened an investigation into possible crimes against humanity in Venezuela. In 2020, the United Nations Fact-Finding Mission (FFM) had found sufficient grounds to believe crimes against humanity have been committed as part of a state policy to repress opponents.
The UN Office of the High Commissioner for Human Rights (OHCHR), which has a presence in Venezuela, lost access in 2022 to detention centers where political prisoners are held.
Judicial authorities have participated or been complicit in the abuses, serving as a mechanism of repression.
Venezuela faces a severe humanitarian emergency, with millions unable to access adequate health care and nutrition.
Authorities harass and persecute journalists, human rights defenders, and civil society organizations. Persistent concerns include brutal policing practices, lack of protection for Indigenous people, and poor prison conditions.
An exodus of some 7.1 million Venezuelans represents one of the largest migration crises in the world.
A 2022 report by a European Union electoral observation mission laid out concrete recommendations to pave the way to free and fair elections.
Negotiations, that were stalled since October 2021, resumed in November.
18.2.Persecution of Political Opponents, Arrests, and Torture
The government has jailed political opponents and disqualified them from running for office. As of October, the Penal Forum, a network of pro-bono defense lawyers, reported 245 political prisoners.
At least 114 political prisoners have spent more than three years in pretrial detention, despite time limits included in a recent Criminal Code reform. Approximately 875 of the 15,770 civilians arbitrarily arrested from 2014 through June 2022 have been prosecuted in military courts, the Penal Forum reported.
While some detainees have been released or transferred from Bolivarian National Intelligence Service (SEBIN) facilities to prisons, new critics have been subject to arbitrary detention.
OHCHR continued receiving complaints of torture, ill-treatment, and incommunicado detentions in 2022.
Security forces and colectivos—pro-government armed groups—have repeatedly attacked demonstrations since 2014, including with violent raids, brutal beatings and point-blank range shootings.
According to official sources consulted by OHCHR, the Attorney General’s Office recorded 235 complaints of human rights violations involving deprivation of liberty, from May 2021 through April 2022, including 20 in terrorism-related charges.
OHCHR and the UN Working Group on Arbitrary Detentions, reported persistent challenges to ensuring the rights to liberty and fair trials. There are also delays in implementing judicial release orders.
In September, the UN FFM reported that crimes committed by intelligence services, on orders of high-level authorities, including Nicolás Maduro, were part of a deliberate policy to repress government opponents. The mission again described these as crimes against humanity.
18.3.Alleged Extrajudicial Killings
Agents of the Special Action Forces (FAES) and other police and military units have killed and tortured with impunity in low-income communities, including during security raids called “Operations To Liberate the People.”
Between 2016 and 2019, security forces alleged “resistance to authority” in more than 19,000 killings. Evidence showed many were extrajudicial killings. OHCHR documented continuing patterns of such killings in marginalized neighborhoods but reported a significant reduction in number in 2022.
18.4.Judicial Independence, Impunity for Abuses
The judiciary stopped functioning as an independent branch of government in 2004.
There has been no meaningful justice for crimes committed with knowledge or acquiescence of high-level authorities.
Judicial authorities have been complicit in abuses, the FFM reported in 2021, including by issuing retrospective warrants for illegal arrests, ordering pre-trial detention routinely, upholding detentions based on flimsy evidence, and failing to protect victims of torture.
Venezuela’s National Assembly, controlled by supporters of Nicolás Maduro, revised the Organic Law of the Supreme Court of Justice in January, requiring an entirely new Supreme Court, which plays a critical role in appointing and removing lower court judges, of 20 justices—down from 32. The selection process, was not independent. Although Venezuela’s constitution allows only one 12-year term, justices who had failed to act as a check on executive power were reappointed for longer.
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:
20.1.Migration and Refugee Division Guidelines on the Assessment of Credibility.
20.2.Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
20.3.Relevant country information set out in this decision record.
In particular, the Tribunal notes the following credibility guideline:
[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.
The Tribunal notes the email submission by the representative dated 25 May 2021. The Tribunal considers that the claim, based on cited country information, that high-level regime officials stigmatised returning citizens, blaming them for rising COVID-19 cases and calling them “bioterrorists” and “biological weapons” can no longer be sustained given that the pandemic crisis has now passed and there is no current country information to support the claim.
Subject to the two succeeding paragraphs, the Tribunal considers the applicant’s oral and written evidence credible overall, and accepts his account of his life and work and what happened to him when he was in Venezuela. The Tribunal does not consider the veracity of any of the applicant’s claims is diminished or negated due to the absence of corroborative documentary evidence.
The Tribunal notes the translated police complaint dated [in] October 2016 by the applicant’s [Relative 1]and the representative’s submission that the authenticity of the document is unreliable. The Tribunal notes the contents of the complaint bear some resemblance to the applicant’s account at hearing of being kidnapped from a [Venue]sometime in 2015, however the complaint alleges the incident occurred on 21 April 2016.
Given the representative requested the translated police complaint be withdrawn from evidence and the applicant declined to comment on the document, there is insufficient evidence for the Tribunal to make a finding about the origin of the document, the motivation for its creation, or its authenticity. The Tribunal gives no weight to the document and draws no adverse conclusion from its existence.
The Tribunal notes the country information submitted by the representative is consistent with and adds to the country information set out by the Tribunal in this decision record.
Based on the country information, the Tribunal considers the political situation in Venezuela is such that there is a heightened risk of serious adverse consequences for individuals who participate in anti-government activities or who are perceived by the authorities to be anti-government, regardless of their status or profile. The Tribunal considers that this situation has gained momentum and prominence over the years since the Maduro regime was installed, and further since the applicant left Venezuela.
The Tribunal does not consider that the evidence before the Tribunal and the country information support the representative’s submission that the applicant is a target of persecution for the reason that he was a member of particular social groups, being a commercial pilot in Venezuela and resident of [State 1].
The Tribunal considers that as one of the pilots/co-pilots responsible for flying [Party leaders, including [Mr A], [information deleted]—and subjected to regular phone and ID checks by the Venezuelan authorities, the applicant is likely to be on the government’s records as an individual regarded or perceived to be an opposition supporter and therefore anti-government.
The Tribunal considers that as a result of the regular phone and ID checks, it is likely the applicant is known to the Venezuelan authorities as an individual who participated in anti-government protests.
The Tribunal considers the contents of the applicant’s public Facebook page from his time in Venezuela are such as to infer that the applicant is likely to be an [a supporter of other parties].
The Tribunal considers it is possible the attack on the applicant at [a venue] was a targeted attack motivated by the applicant being regarded or perceived by authorities to be anti-government.
The Tribunal considers it is possible the tear gas attack on the applicant’s mother’s house was a targeted attack motivated by the mother’s participation in anti-government activities the applicant being regarded or perceived by authorities to be anti-government.
The Tribunal considers it is possible the threats and phone calls received by the applicant and his mother and detailed in the applicant’s written evidence were targeted at the applicant and motivated by the applicant being regarded or perceived by authorities to be anti-government.
The Tribunal accepts that the applicant genuinely fears targeting and harm by the authorities if he returns to Venezuela as a result of his occupation, activities and experiences there.
The Tribunal does not consider that the applicant’s ability to leave Venezuela without intervention by the authorities means that he is not a person of adverse interest to the authorities. He left, with his partner and child, on a student visa, with a stated intention to study English in Australia for 12 months. The Tribunal considers it is unlikely the authorities would have regarded or perceived this particular activity by the applicant as a threat to the government; meanwhile, the opportunity remained for the authorities to pursue the applicant on his return to Venezuela.
The Tribunal notes, on the applicant’s evidence, that his pilot colleagues all managed to flee Venezuela, including the owner of the flying company who had previously been kidnapped.
The Tribunal notes the applicant attended an anti-Maduro demonstration[Location], and on its own inquiry, notes the demonstration took place in [early] 2019. The Tribunal further notes the applicant’s evidence that since being in Australia he has otherwise disengaged from Venezuelan issues and politics and kept a low profile. The Tribunal considers that the applicant has not attempted to bolster his claims for protection by actively engaging in anti-Venezuelan government activities in Australia; rather, he has tried to put his past behind him and build a new life here.
The Tribunal notes the applicant’s former partner and [child] returned to Venezuela at some time after the application for review of the delegate’s decision was lodged. The Tribunal notes the applicant’s limited evidence in this regard and draws no inferences or conclusions in relation to the motivations or actions of his former partner and son in the context of the applicant’s case.
The Tribunal considers that it if the applicant returns to Venezuela, there is a real or substantial chance on his arrival or within the reasonably foreseeable future that:
40.1.The applicant would be investigated by the Venezuelan authorities about his occupation and activities in Venezuela and the circumstances of his departure and return based on the applicant being likely to be on the government’s records as an individual regarded or perceived to be an opposition supporter and therefore anti-government.
40.2.The applicant would be arrested and detained for an extended period with or without charge, deprived of his liberty, surveilled, subjected to mistreatment and torture during detention, face criminal proceedings, and denied a fair trial.
40.3.The applicant would be denied the opportunity to reinstate his pilot qualifications and gain employment as a pilot.
The Tribunal considers the possibility that one or more of the previously mentioned attacks and threats on the applicant in Venezuela were motivated by the applicant being regarded or perceived by authorities to be anti-government raises the risk of targeting and harm to the applicant if he returns to Venezuela.
The Tribunal considers that if the applicant returns to Venezuela, there would be no effective protection available to him from the Venezuelan authorities as they would be the perpetrators of the targeting and harm, and it is likely no legal protection or judicial review would be available to the applicant. Further, the Tribunal considers that any family members in Venezuela who sought to protect the applicant from targeting and harm would be at risk themselves of being subjected to mistreatment by the Venezuelan authorities.
Given it is likely the applicant is regarded or perceived to be [asupporter of other parties] and therefore anti-government, the Tribunal considers that the applicant would be exposed to targeting and harm by the Venezuelan authorities regardless of where he lived in Venezuela.
The Tribunal considers that the applicant would be unable to modify his behaviour to avoid being targeted and harmed by the Venezuelan authorities as his vulnerability to targeting and harm relates to his previous occupation and activities in Venezuela. The Tribunal further considers that if the applicant returns to Venezuela, it is likely he would maintain his anti-government stance and act accordingly, including by not complying with the requirement to hold a Carnet de la Patria.
Application of law
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
46.1.The applicant is a citizen of Venezuela and non-citizen in Australia.
46.2.The applicant fears being persecuted in Venezuela for the essential and significant reason of political opinion, being regarded or perceived by Venezuelan authorities to be an opposition supporter and therefore anti-government.
46.3.There is a real chance that, if the applicant returns to Venezuela, he would be persecuted for that reason.
46.4.The persecution would involve serious harm.
46.5.The real chance of persecution relates to all areas of Venezuela.
46.6.There are no effective protection measures available to the applicant in Venezuela.
46.7.The applicant could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Venezuela.
46.8.The applicant has a well-founded fear of persecution as defined in s 5J of the Act.
46.9.The applicant is outside Venezuela, his country of nationality, and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself of the protection of Venezuela.
46.10.The applicant is a refugee as defined by s 5H(1)(a) of the Act.
CONCLUSION
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 Chapple
Member

ATTACHMENT A
Summary of applicable law
The 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 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.

[2023] AATA 3613

18 July 2023

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