1925235 (Refugee)

1925235 (Refugee) [2023] AATA 4125 (11 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANTS’ REPRESENTATIVE:        Unrepresented
CASE NUMBER:  1925235
COUNTRY OF REFERENCE:                   Venezuela
MEMBER:Kate Chapple
DATE:11 August 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the primary applicant satisfies s 36(2)(a) of the Act and the secondary applicant satisfies s 36(2)(b) of the Act

Statement made on 11 August 2023 at 8:10am
CATCHWORDS
REFUGEE – protection visa – Venezuela – political opinion – opposition to the government – anti-government protests – work for a security agency – repeated interrogations – fear of arbitrary detention and ill-treatment – fear of killing – passport renewals refused – bank accounts frozen – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, 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 dependants.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application

Protection visa application lodged 12 June 2018.
The primary applicant’s claims set out in his written submission accompanying the protection visa application:
1.    I started to work in [Agency 1] in February 2011 during a time of national protests led by university students against the government, at that moment I was a college student in [University 1], and I was recruited by a friend ([Friend A]) (Today protected by United States Government whit the condition of Political asylum). I was interviewed together whit two additional aspirants in November or December 2010 by the [Position 1] “[Leader A]” (arrested [in] 2018 on [Charge 1] among other charges and currently awaiting [trial]) and the reason why the [Position 1] made the interview was in his own words was because he was looking for two things in us, firstly the best and more qualified students and secondly patriots and Chavist people. I don’t know what was happen with the other [applicants], but I was called to additional interviews with Human Resources and in February 2011 I started to work in the administrative area of [Section 1].
2.    During the years 2011 and 2015 the office for which I worked had several superiors, however my presence in the central offices of [Agency 1] or [Office 1] (Administrative Office in [Town 1], Caracas) were rarely required so all my work always It was made from my house in order to maintain an appearance that had nothing to do with the government, however in order to justify my income I was asked to get a job related to finance in order to eventually get into the finance area of the [Agency 1], for that reason in July 2011 I started working in the professional services firm "[Firm 1]" National representation of the transnational [Firm 2] based in [Town 2], Caracas.
3.    By the end of 2015 my superior was again replaced by [Position 2] [Leader B], from the beginning our relationship was not the best, because to that date my disapproval of the policies of the current president Nicolas Maduro was evident and the [Position 2] was apparently aware of My displeasure towards public policies, for that reason began to harass me by requiring my presence constantly in the offices of [Agency 1] and moving my job from [Office 1] to [Agency 1] headquarters in [Town 3], my disapproval with the treatment I was receiving was evident what led me to request my vacation to get away from the institution and start planning my departure from the country because I felt that the attitude of the [Position 2] towards me was hostile and with bad intentions, my vacation was denied and I was forced to stay on guard for future department activities, so secretly got out of Venezuela without my wife to [Country 1], with the intention of staying in [Country 1] for 4 months and then travel to [Country 2] to meet my wife who would travel from Caracas to [Country 2], however I was kept in [Country 1] and returned to Venezuela the next day, so the possibility of escape was momentarily frustrated.
4.    At the end of 2016 we learned that we could attend Australia as students, so we are interested in the idea of studying in Australia, in this way leaving Venezuela and later deciding our future in some other place so we started the process to request a student visa, for that date the attacks of the [Position 2] [Leader B] intensified, in one of the opportunities that made me attend [Agency 1] I could understand that it had been arranged to some officials to persecute me, since in the [Agency 1] parking lot I could observe a [vehicle 1] with a crash on the right side of the front bumper, vehicle that I had frequently seen both in my residence in Caracas and near my residence [Town 4] and in places I used to frequent, ([a church] and [another location] in the [Town 2], Central Office of [Firm 2] Venezuela) at that moment I began to notice the presence of I frequently saw [distinctive Vehicle 2s], widely used by [Agency 1] in Caracas, so I understood that I was being investigated for some reason, so hurry up the plans to leave the country.
5.    To leave the country air tickets were purchased from [Agency 2] through its headquarters in Colombia, with [a named airline], thus was avoided alert the Venezuelan authorities unnecessarily attending a travel agency and running the risk of being detected by officials for the time watching me were further my work in the company [Firm 1] until March 3, which could disguise my closure, in such company as holidays this information was intentionally notified the [Position 2] [Leader B] at one of the interrogations during the month of March 2017 as to the date already had a student visa for Australia and my leaving the country was imminent, however my plans were complicated when they requested my presence again in the offices of [Agency 1] a week before my departure the country with the excuse that my resignation had been approved by then attended last time the tower during the week [specified in] March 2017 to finalize my resignation, during that interview I was asked to attend again later of this week or beginning of next week, however my airfare was available to leave Venezuela on [a day in March] 2017 so delayed the final service to [Agency 1] because he was afraid of being arrested at the time it arrived, for that reason I postponed the meeting with the excuse that I was out of Caracas and that I would return next week.
6.    Once at the airport and before leaving Venezuela, my personal information was updated by the Customs staff of the Republic, this was a mandatory action for people of national interest such as public officials, politicians, among others, the national customs system raises an alert when one of these people is leaving the country with the objective that the customs officer update their information, in most cases the customs officer thinks that it is simply an automatic and random requirement of the system, however in my case I obeyed that I was a public official and my data had to be updated, but having no alert I could leave the country without problems, however my superiors learned of the flight from the country, and during the week of my departure the [Position 2] [Leader B] informed me through a [messaging service] that they had already learned that I had left the country.
7.    Currently my [siblings] are out of Venezuela like me, one of them is in [Country 1] under protection and the other is in the same country as a tourist, both are afraid of returning to Venezuela because of what happened to me, however, my two parents are currently in Venezuela. For me it was impossible to try to stop the problem because once it was decided that it was an enemy of the state it could not go to any organization since in Venezuela the government controls not only the security forces, but also the public institutions, so I did not have a body to go to, so I was not safe anywhere in Venezuela since the government has ample control over the whole country, through its security forces and vigilante groups, now the danger to my life continues and to return to the country I fear for my physical integrity and that of my wife.
8.    Based on the above, we have a Well-Founded Fear of Persecution for Political Opinion, and Serious Harm if we return to Venezuela.
Extract from the Venezuelan Exodus – The Need for International Protection and the Region’s Response – Human Rights Watch
Venezuelans are fleeing their country for multiple reasons. Severe shortage of medicine, medical supplies, and food make it extremely difficult for many families to have access to the most basic health care and to feed their children. A ruthless government crackdown has led to thousands of arbitrary arrests, hundreds of prosecutions of civilians by military courts, and torture and other abuses against detainees, Arbitrary arrests and abuses by security forces, including by intelligence services, continue. Extremely high rates of violent crime and hyperinflation are also key factors in many people’s decision to leave the country.
The political, economic, human rights, and humanitarian crisis in Venezuela creates a mix of factors that cause Venezuelans to leave the country and makes them unable or unwilling to return. Some of these factors alone may qualify a person for refugee status, while some others the cumulative impact of various factors could give rise to a valid claim for refugee status.
Under the terms of the 1951 Refugee Convention, refugee status is contingent on a well- founded fear of persecution based on racial, religious, political or certain other grounds. In Latin America, however, non-binding regional norms as well as the domestic laws of some states, embrace a broader eligibility for asylum. In particular, 15 regional states have incorporated the 1984 Cartagena Declaration, which provides guidance to Latin American states in developing their refugee protection framework, into domestic laws. In addition to their obligations under the Refugee Convention, governments also cannot forcibly return people to their country of origin if they meet the Declaration’s criteria for refugee status.
Of particular relevance to the situation in Venezuela, the Cartagena Declaration includes as refugees people fleeing “massive violation of human rights or other circumstances which have seriously disturbed public order”. The United Nations High Commissioner for Refugees (UNHCR), when interpreting the meaning of the clause “other circumstances which have seriously perturbed public order” noted that this phrase “is the least frequently applied by national adjudication bodies when determining refugees claims under the Cartagena refugee definition”. States need to carefully consider, in some cases without much in the way of domestic precedent to draw on, the extent to which their laws give rise to valid claims of protection by Venezuelans who have fled the country for humanitarian reasons rooted in the ongoing crisis. In a preliminary ruling, a Brazilian Supreme Court Judge recently ruled that incorporating the expanded definition of the Cartagena Declaration into domestic law generates a “duty of humanitarian protection” with regard to Venezuelans seeking refuge in Brazil.
For its part the UNHCR has argued that “the broad circumstances leading to the outflow of Venezuelans nationals fall within the spirit of the Cartagena Declaration”. In addition, UNHCR has stated that while not all Venezuelans left for refugee-related reasons, “it is becoming increasingly clear that a significant number [of Venezuelans] are indeed in need of international protection” and are now unable or unwilling to return.
UNHCR has maintained that applying an analogous clause included in the OAU Refugee Convention in Africa, a “lack of food, medical services and supplies” should be taken as “factual indicator” of the existence of “events seriously disturbing public order”.
In an August 2018 preliminary ruling, a Brazilian Supreme Court Judge ruled that Brazil ha bound itself to respect the Cartagena Declaration’s expanded refugee definition by incorporating it into domestic law, which now recognizes as refugees “those who are forced to leave due to grave and generalized human rights violations”. The ruling, which explicitly discussed Venezuelans seeking protection in Brazil, concluded that “the expansion of the concept of refugee generates, for the State, a duty of humanitarian protection”. (Brazilian Supreme Court, Ruling Originated in Roraima 3.121 (Tutela Provisoria na Acao Civel Originaria 3.121 Roraima), August 6, 2018.
Attachments:
1.Extract from the Migration and Refugee Law – Principles and Practice in Australia – John Vrachnas, Kim Boyd, Mirko Bagaric, Penny Dimopoulos – 2^nd Edition – Cambridge University Press:
Chapter 14 Convention grounds;
Chapter 15 Persecution; and
Chapter 16 Well-founded fear of prosecution;
2.[Source deleted]; and
3.[Source deleted.]
Translated letter and SMS messages relating to the primary applicant’s employment with [Agency 1].
Tabulated details of applicants’ travel over the period 2008 to 2017.
Other departmental records:
5.1.Decision record relating to the delegate’s refusal decision.
5.2.Interview audio file.
5.3.Case file.
5.4.Internal records relating to the applicants.
Application for review
Application for review lodged with the Tribunal on 9 September 2019.
Statement by the primary applicant addressing various aspects of the delegate’s refusal decision and attaching social media posts, emailed to the Tribunal on 10 November 2021.
The Tribunal wrote to the applicant’s representative inviting the applicant to attend a hearing on 8 August 2023 and to provide pre-hearing submissions.
Prior to the hearing, the primary applicant provided to the Tribunal:
9.1.Confirmation that the applicants intended to participate in the hearing with the assistance of an interpreter.
9.2.Statutory declaration by the primary applicant dated 17 July 2023 as follows (attachments referenced):
1.    I started to work in [Agency 1] in February 2011 during a time of national protests led by university students against the government, at that moment I was a college student in [University 1], and I was recruited by a friend ([Friend A]) (Today protected by United Sates government with the condition of political asylum). I was interviewed together with two additional aspirants in November or December 2010 by the [Position 1] [Leader A] (Arrested [in] 2018 on [Charge 1] among other charges and he was in prison and being tortured until January 2023 when he was released as part of an international agreement to clean up the image of the Venezuelan regime before the United States of America). And the reason why the [Position 1] made the interview was in his own words because he was looking for two things in us. Firstly, the best and most coalify students and secondly patriots and Chavist people. I don't know what happened with the other [applicants], but I was called to additional interviews with Human Resources and in February 2011 I started to work in the administrative area of [Section 1].
2.    During the years 2011 and 2015 the office for which I worked it had several supervisors, however my presence in the central office of [Agency 1] or [Office 1] (Administrative Office in [Town 1], Caracas) were rarely required, so all my work was always made from my house in order to maintain an appearance that I have nothing to do with the government. However, to justify my income I was asked to get another job related to finance in order to eventually get into the finance area of [Agency 1], for that reason in July 2011 I started working in the professional services firm “[Firm 1]” national representation of the transnational [Firm 2] based in [Town 2], Caracas.
3.    By the end of 2015 my supervisor was replaced by [Position 2] [Leader B]. From the beginning our relationship was not the best due I'm graduated from [an] opposition university, and I participated in opposition protests. And from his point of view my profile was part of the opposition to the goverment so he started to go against me, without any evidence. For this reason, he began to require my presence frequently in the office of [Agency 1] and moved my job from [Office 1] to [Agency 1] HQ in [Town 3], with the objective to control and watch me.
The situation I was living It made me start feeling scared and unsafe, he was with really bad intentions to me so I requested my holidays to get away from the institution and start planning my departure from the country but my holidays were denied, and I was forced to stay on guards for future department activities. So, secretly I went out of Venezuela without my wife to [Country 1], with the intention of staying there for 4 months and then travel to [Country 2] to meet my wife, who would travel from Caracas to [Country 2]. However, I was kept in [a city in Country 1], and then they sent me back to Venezuela the next day, so, the possibility of scape was momentarily frustrated.
4.    At the end of 2016 we learned that we could travel to Australia as students, so we were interested in the idea of studying in Australia, in this way leaving Venezuela and later deciding our future in some other place. So, we started the process to request a student visa. For that date the attacks of the [Position 2] [Leader B] intensified, in one of the opportunities that he made me attend the [Agency 1] HQ, and I could understand that it had been arrange to some officials to follow and persecute me; that since day in the [Agency 1] HQ parking lot I could observe a [vehicle 1] with a crash on the ride side of the front bumper, and I started to seen frequently in my residence in Caracas and my residence in [Town 4], and in the places that I used to frequent, ([a] Church in Caracas, in [another location] in [Town 2], Central Office of [Firm 2] Venezuela). Also, I noticed the presence of [distinctive Vehicle 2s] widely used by [Agency 1] in Venezuela, so I understood that I was being investigated for not reason, so I hurried up the plan to leave the country in order to protect mine and my wife life.
5.    In March 2017 with my resignation already accepted by [Agency 1], the [Position 2] [Leader B] continued requesting my presence at least two times per week in the [Agency 1] HQ to be interrogated by him or other officials, and when I was not being interrogated, they forced me to notify my position at least three times a day, and if I did not, they considered that I was trying to escape. To protect mine and my wife life, I bought air tickets to leave the country through [Agency 2] using [their] headquarters based in Colombia and communicating with them through my [Firm 2] email to avoid be discovered by the Nicolas Maduro regime.
6.    During my last week in Venezuela [Position 2] [Leader B] was ready to arrest me, so he ordered me to attend a meeting in [the Heliport], (Place where the regime kept political prisoners and people opposed to the regime). knew that if I attended that meeting, they would arrest me and accuse me falsely of treason against the nation, which meant that without any kind of evidence they were going to leave me in prison without the obligation on the part of the regime to make a trial against me, and which would lead to innumerable tortures by the regime to obtain a false confession from me. To save my life I refused to attend indicating that I was out of Caracas but as soon as I would return, I would inform him so that we could organize another meeting. However, I was already preparing the last details of my departure from Venezuela.
7.    On the day of my departure, once I was at the airport, my personal information was updated by a border control officer. This is a mandatory activity for people of national interest such as politicians, public officials, or others under investigation. However, since I did not have an arrest warrant but rather my superiors wanted to arrest me and force a confession, my data was updated but I was not detained and was able to leave the country after being questioned at the airport for an hour by border control officials, while my wife waited in the departure lounge without knowing what had happened to me.
8.    However, the notification of my departure reached the [Position 2] [Leader B] who sent me a [message] (attached as evidence) in which he informed me that they ([Agency 1]) already knew that I had left the country, and in the following days my family received telephone threats from anonymous people who wanted to know my return date, a situation that led to [a sibling] having to leave the country a few months later and [another relative] not being able to return to Venezuela since she was the victim of threats and confiscation of property by the regime.
9.    Due the threats that my [family members] suffered, [Country 1] government guaranteed them political asylum. Copies of their approved political asylums are attached as evidence of the persecution we have suffered from the regime.
10.   After we managed to leave Venezuela, the government has attacked us in the following way:
a.Threatening calls against [a sibling], my parents and my grandparents, as a consequence my [siblings] have been granted asylum in [Country 1].
b.My [siblings] have been denied the possibility of obtaining valid passports from the Bolivarian Republic of Venezuela, with the excuse that if they want passports, they must apply for them in Caracas because there are problems with their identities, in this way the Venezuelan regime tries to force them to return to Venezuela.
c.The Venezuelan embassy in Australia has denied my wife and I the possibility of obtaining new passports with the excuse that there are problems with identity and requiring new passports we are required to return to Venezuela to request it, thus trying to force us to return to Venezuela to be detained.
d.The Venezuelan regime has frozen my bank accounts and those of my wife and stolen our money in Venezuela, indicating that there are identity problems and to require the reactivation of our accounts we need to return to Venezuela and request the reactivation of our accounts in a commercial office, forcing us to return to Venezuela.
e.The Venezuelan regime has denied me the possibility of obtaining any type of criminal record, thus preventing me from obtaining the documents that allow me to apply for a visa to another Latin American country, thus trying to force me to return to Venezuela.
f.The Venezuelan regime has prevented my parents, grandparents, [siblings] and myself from reporting the threats that the regime makes against us under threats of "more serious consequences" so we have not been allowed to legally register the threats we have received.
11.   After our arrival in Australia we have participated in all the activities against the Maduro Nicolas regime, some of the activities in which we have participated have been:
a.Consultative referendum of 2017. Elections for Venezuelans in exile in which the removal of the Nicolas Maduro regime and the end of the terrorist government were sought.
b.[Named community activity] 2018/2019/2022. Venezuelan activity in which funds were collected to support non-governmental organizations in Venezuela, the 2019 and 2022 editions culminated with threats to the families of the organizers in Venezuela, my family was not threatened or suffered consequences because of none of those activities because I was just a volunteer but did not organize any activities.
12.   Based on the above, we have a Well-Founded Fear of Persecution for Political Opinion, and Serious Harm if we return to Venezuela.
13.   I will provide the particulars of my claims for protection, sufficient evidence to establish those claims before and at the interview and before the decision is made.
9.3.Submission signed by the applicants’ support person addressing legislative requirements and case law and attaching country information, submitted to the Tribunal on 30 July 2023.
The Hearing

The applicants appeared before the Tribunal at a hearing conducted in person on 8 August 2023 with the assistance of an interpreter (via video link) in the Spanish (Central and South America) and English languages, and in the presence of a support person whose name was provided.
The applicants advised the Tribunal that only the primary applicant intended to give evidence, and that the secondary applicant relied on the primary applicant’s claims and did not seek to make any separate additional claims.
The primary applicant gave evidence, summarised by the Tribunal as follows:
12.1.The primary applicant completed a [specified] degree at [University 1] in Caracas between [specified] years. During and after his university years (including when he worked at [Agency 1]), he was involved in a student movement that expressed views against the Venezuelan government through protest. The primary applicant was part of the group that planned and organised the protests. Over 2013-14, there were around ten protests. He also participated in the protests, however he did not make speeches and did not have a public profile. Typically, around 300 students from [University 1] joined each protest lasting one to two hours, police attended and monitored the crowd, on two or three occasions they dropped tear gas bombs to dissipate the crowd.
12.2.The primary applicant was employed by [Agency 1], from February 2011. He had a close friend, [Friend A], who recommended that he apply and organised the interview for him. In November 2010, he was called to an interview at 7.30 at night, which he thought was strange. With him at the interview were two other applicants, [subject] graduates who had also been recommended by [Friend A]. They were interviewed by the head of HR and, to his surprise as he did not expect someone so senior, the [Position 1] of [Agency 1], [Leader A]. The primary applicant and the other applicants weren’t questioned about their capabilities for the advertised positions; he believed that [Friend A] had provided all their details and had made the recommendation because they were the top student performers. He thought it was more important to [Leader A] that they were government supporters, and he believed [Friend A] had told [Leader A] he was a government supporter. He was told in the interview that he would be given an administrative position, somewhere in a different location and his superior would tell him his duties. The primary applicant asked [Friend A] after the interview why it was conducted with someone as senior as [Leader A]. She told him that a few months earlier she had been involved in a successful operation with [Leader A] and he had become quite paternalistic towards her, and sought her out to have the positions filled.
12.3.The primary applicant heard nothing for months, so he thought he hadn’t got the position. Then in February 2011 he was offered a contract and directed to undertake medical tests. Between February 2011 and December 2014, he was assigned to [Office 1] [Town 1], however in fact he did most of his work from home, around eight to ten hours week. His duties involved filing and management of administrative records; he really had nothing to do, he was only there because [Friend A] had recommended him. It may seem incredible that he was getting an income from the government for doing almost nothing. He had five different superior over the period he worked at [Agency 1], and was called into the agency’s headquarters only seven or eight times to meet with his superior.
12.4.Given that the [Agency 1] position involved so little work, the primary applicant applied for a position as an [occupation 1] at [Firm 2] and began there in July 2012. He got approval from [Agency 1], however it did not tell [Firm 2] that he worked for [Agency 1]. [Firm 2] is a big company doing work mostly with companies and individuals who were opposed to the government. He didn’t tell them about his [Agency 1] work because he didn’t want to make anyone feel uncomfortable, and in any event, it was relevant to his work at [Firm 2].
12.5.In mid-2013, [Leader A] moved from [Position 1] of [Agency 1] to [a more senior position]. He was replaced at the end of 2014 following an operation that went wrong [details deleted]. [Later], [Leader A] was apprehended; he became a political prisoner and was tortured until 2021 when he was released into [exile]. The interview was the only occasion the primary applicant saw [Leader A].
12.6.Protests began to escalate in 2014, and the environment in [Agency 1] was becoming complicated, so the primary applicant decided to refrain from being involved in any protests.
12.7.In early 2015, a new [Position 1], [Leader B], was appointed at [Agency 1]. As [Leader A] had done when he was first appointed, [Leader B] wanted to get his own people in. As a result, there were changes in the structure and hierarchy. Over September to October 2015, [Leader B] called the primary applicant and said he wanted to meet him. When they met, [Leader B] told him he was a bad element, that he was stealing money/getting income from the government without doing any work. [Leader B] demanded that he attend the agency’s headquarters two to three time per week. On these occasions, the primary applicant finished work at [Firm 2] at 5.30pm then waited at [Agency 1] headquarters for two to two and a half hours for [Leader B] and other interrogators to arrive, then he would be questioned for two to three hours about betraying the government, selling information to foreign governments, involvement in counter intelligence. He was accused of not doing his job well, being a bad officer and a traitor. The primary applicant couldn’t understand what was going on, it became very stressful. He knew that in Venezuela, if a powerful person deems something to be a problem, then the problem is eliminated. He wondered why [Leader B] didn’t terminate his position, and in one of the interrogation sessions, he offered to resign. [Leader B] got angry, accusing him of being a traitor for suggesting he might leave [Agency 1], so he backed off and didn’t raise it again. He speculated that if he left the country, he could be murdered. He will provide a translated press clipping to the Tribunal of such an instance. The primary applicant couldn’t do anything about what was going on; in Venezuela, the police are controlled by the regime, so there was no point in making a report to police. He wasn’t aware of whether others employed at [Agency 1] were being treated as he was; working mostly from home meant that he didn’t have a relationship with other workers, and he also consciously kept his distance.
12.8.On the first few occasions of interrogation, the primary applicant was very fearful of being incarcerated there and then. However, over time, each occasion followed the same format, it became a normal pattern, which felt a bit safer than initially. It gave him some time to think and plan his departure.
12.9.In January 2016, the primary applicant decided it was time to leave Venezuela. He bought a plane ticket to [Country 1], with no intention of returning. He had resigned from his position at [Firm 2], but did not disclose his travel plans to [Agency 1][details deleted]. He flew to [Country 1] with his cousin. On arrival, his cousin was questioned by [Country 1] immigration based on suspicions that he planned to work in contravention of his tourist visa. The primary applicant was considered implicated, and [Country 1] immigration refused both their entry, and they were returned immediately to Venezuela. These actions were not connected to the primary applicant’s experiences with [Agency 1].
12.10.On his return, from January to July 2016, the primary applicant continued working for [Agency 1], and [Leader B] continued to summon him for interrogation, however it became less frequent over time. During this time, the primary applicant got back in touch with his boss at [Firm 2] and said he was available to work. They re-employed him.
12.11.In 2016 [Friend A] went to the US and was granted political asylum. The primary applicant last heard of her in 2019. He’s had no other contact, she has disappeared.
12.12.Everything changed in August 2016 when, on one occasion, [Leader B] produced a list of flights the primary applicant had taken from Venezuela (to the next stop, rather than the destination) and asked him to explain why he had travelled. [Leader B] was particularly interested in a flight he had taken to [Country 3], assuming he had met someone there to arrange something against the government. [Country 3] is known to be working against the Venezuelan regime. [Leader B] told him he didn’t want him working at [Agency 1]. The primary applicant offered his resignation, however [Leader B] told him he wouldn’t accept it at that time because he was under investigation about what he did in [Country 3]. [Leader B] demanded that the primary applicant text him morning, noon and evening to advise his location, which he complied with.
12.13.From that time, the primary applicant began to notice a [vehicle 1] with damage to its front right bumper in the [Agency 1] parking lot, near his father’s house, and other locations he frequented, including [Firm 2]. He was being followed; it made him scared, so he started planning to leave Venezuela. He used the [Firm 2] email network to make flight and other arrangements because he was afraid his personal email would be accessed by [Leader B’s] investigators and his plans discovered.
12.14.Initially, the primary applicant and his wife had planned to go to [Country 2] because they were accepting [Venezuelans], however their immigration policy [changed], taking a year to process. Other Latin American countries had similar requirements. They couldn’t wait. [Country 1] wasn’t an option. He had a friend in Australia who told him he could get quick turnaround on a student visa application, so that determined their country choice. He organised his student visa to study English in Australia through [Agency 2] in Columbia. The plan was to come to Australia, learn English, buy some time, then work out what to do.
12.15.[Leader B] requested a resignation letter from the primary applicant, which he provided in January 2017, however he was told the letter was wrong and he would be given a new letter to sign. [Leader B] later said he needed him to sign a statutory declaration of his estate, which he agreed to because otherwise he would be accused of non-compliance. The primary applicant believed through this time that they were continuing to investigate him.
12.16.[In] March 2017, [Leader B] rang the primary applicant asking him for the statutory declaration. He didn’t call him into the [Agency 1] headquarters, rather El Helicoide, the military prison for political dissidents. To avoid going, he told [Leader B] he a family emergency, a sick relative, and had to fly out of Caracas. [Leader B] wasn’t happy with this. The primary applicant and his wife did leave Caracas and hid at a relative’s home before departing for Australia. As [Leader B] and his investigators did not have any formal confessions from him, there were no criminal charges against him at that stage, so they didn’t encounter problems at the airport. He was however asked numerous questions by immigration to update his details before his departure. He thinks they may have had a heads up that he was trying to leave and his details would need to be updated. After they arrived in Australia, the primary applicant got a text from [Leader B] that he was aware the primary applicant had left the country. He considered this a threat. He will provide a translation of the text to the Tribunal.
12.17.The primary applicant’s grandparents started receiving calls and visits from unknown people inquiring as to his whereabouts, and threats in the event they were hiding him (that’s where they hid before coming to Australia). He told his grandparents to tell these people and the authorities that he is in Australia and does not intend to return. Since then, as recently as eight months ago his grandparents have been denied passports, the reason given that there are problems with the identification process. [His sibling] was also stopped twice and questioned about his whereabouts. [That sibling and nother relative], also denied a passport in Venezuela due to identification problems, have left Venezuela and been granted asylum in [Country 1]. Another [relative has] a flat in Caracas that they’re unable to lease out because they’ve been denied a certificate of liveability. This is the regime pressuring him even though he has left the country. After arriving in Australia and the text message from [Leader B], the primary applicant changed his phone number, and there’s no further contact from [Leader B]. He doesn’t know what happened to [Leader B]; he didn’t have a public profile in Venezuela. He believes that [Leader B] is behind the harassment of his family.
12.18.The primary applicant and his wife spent most of their savings on their preparations and flights to leave Venezuela. When they tried to access their accounts from Australia to arrange for money to be transferred to family, they discovered the government had blocked all accounts. They would have to return to Venezuela to have them re-opened.
12.19.The primary applicant and his wife send money home to family to support a better lifestyle than they would otherwise have. To ensure that the government can’t trace the money transfers, they deal in crypto currency.
12.20.The primary applicant believes that if he returned to Venezuela, he would be caught on arrival or soon after, then sent to a military prison to extract a confession, then jailed for three years, then the regime would pay someone to kill him.
12.21.Things happen in Venezuela that are hard to understand in a country like Australia. It is more like Russia, China or Cuba. The government does whatever it needs to do to retain power and stay in control. The woman who opposes the government and is seeking to run for president has been banned from the electoral process; they can’t kill her because she’s too high profile. However, someone like the primary applicant can readily be killed without attracting any attention. They both work in the [named] sector in Australia, they are good contributors.
After discussion with the primary applicant, the Tribunal gave him two days to provide the additional material discussed during the hearing and anything further relevant to his case.
Post-hearing submissions
The primary applicant provided the following material to the Tribunal following the hearing:
14.1.Email containing the following message and referenced attachments:
The documents I am sending are;
1.- Press release on the death of the former right-hand man of the [Agency 1] [Position 1]
2.- Press release on the death of the former right-hand man of the [Agency 1] [Position 1] (NAATI translation)
NOTE: This press release contains the information given by the former [Position 1] of [Agency 1] during 2018-2019 after leaving the country, comments on how one of his commanding officers was assassinated by the regime with the aim of maintaining information regarding corruption hidden, and also these acts are carried out by the regime as a means of intimidation for future political dissidents.
3.- Venezuela new UN report details responsibilities for crimes against humanity
NOTE: As I said, this is neither the first nor the last report, however, it shows how the Venezuelan regime uses both the SEBIN as an instrument of torture, and the base of the Helicoide as a concentration camp to detain, torture and in some cases murder political prisoners, this is the place they wanted to send me to because of the investigation that I suffered due to the false accusation of acts of treason that I received, however it is well known that this site is characterized as a torture center that it is used among other things to obtain confessions to torture bases.
4.- IMG_5587
5.- IMG_5575

6.- Resignation letter and text messages translation.
NOTE: In the text messages sent by [Position 2] [Leader B] to me, two very important things are evident, the first in the last message translated by the NAATI translator as "Mate, you're overseas and you don't tell me!! !!" A threat is evident, although I am not explicitly threatening that they will harm me, this is a very common type of threat in Venezuela made by people who have power and can do whatever they want simply because they have the power of the regime protecting them . The second point is that as soon as I left the country, [Position 2] [Leader B] received a notification informing him that I had left the country. It is not a common practice [for an Agency 1] officer to receive a notification for each person that is leaving the country, however it is a common practice for him to receive notifications of people who are being watched, thus proving that I was under surveillance.
7.- Photo101_0016
8.- Photo DSC01476
9.- Photo DSCF3625
NOTE: Sent in a second email, three photos in which you can see me participating in some protests against the regime, some of which show people with [shirts or banners] with "[name]" writing, which is the abbreviation of [University 1].
I hope that this evidence can somehow prove the danger that I experienced during my last years in Venezuela and the risk that I would be in if I will be forced to return.
Country information
The Australian Government Department of Home Affairs Common Claims for Venezuela dated 5 November 2021 provides (inter alia) that:
15.1.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.
15.2.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]
[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.
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]
[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]
[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.
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]
[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]
[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
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]
[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]
[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
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]
[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.
15.3.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]
15.4.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]
15.5.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 United Nations Human Rights Office of the High Commissioner press release dated 20 September 2022 provides (inter alia) that:
Targeted repression by State intelligence agencies
In its past reporting, the Mission had highlighted the roles of the two State military and civilian intelligence services — respectively, the Directorate General of Military Counterintelligence (DGCIM) and the Bolivarian National Intelligence Service (SEBIN) — in committing human rights violations since 2014, in the context of targeting real or perceived Government opponents. The Mission determined that some of these violations amount to crimes against humanity.
The current report provides a more detailed understanding of the role of individuals at different levels in the chains of command of both agencies in the implementation of a plan orchestrated by President Nicolas Maduro and other high-level individuals to suppress opposition to the Government, including through the commission of extremely grave acts of torture amounting to crimes against humanity.
The Mission has documented 122 cases of victims who were detained by DGCIM, 77 of whom were subjected to torture, sexual violence and/or other cruel, inhuman, or degrading treatment. Torture was carried out in its Boleíta headquarters in Caracas and in a network of covert detention centres across the country.
SEBIN has tortured or otherwise ill-treated detainees - including opposition politicians, journalists, protesters, and human rights defenders - mainly in the El Helicoide detention centre in Caracas. The Mission has investigated at least 51 cases since 2014. The report details how orders were given by individuals at the highest political levels to lower-ranking officials. Both SEBIN and DGCIM made extensive use of sexual and gender-based violence to torture and humiliate its detainees.
The Venezuelan authorities have failed to hold perpetrators to account and provide reparations to victims in a context where judicial reforms announced from 2021 have failed to address the justice system´s lack of independence and impartiality. Violations and crimes by SEBIN and DGCIM continue to this day. The same structures, dynamics and practices remain in place, while relevant officials continue to work for the agencies, and in some cases have even been promoted. The Mission's analysis furthermore details how these efforts were put into action by President Maduro and other high-level authorities as part of a deliberate plan by the Government to suppress criticism and opposition.
“The human rights violations by State intelligence agencies, orchestrated at the highest political levels, have taken place in a climate of almost complete impunity. The international community must do everything to ensure that victims’ rights to justice and reparations are guaranteed,” said Francisco Cox, Member of the FFMV Mission.
The Human Rights Watch World Report 2023, Venezuela: Events of 2022, provides (inter alia) that:
17.1.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.
17.2.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.
17.3.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.
17.4.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.
CONSIDERATION OF CLAIMS AND EVIDENCE
In considering the primary applicant’s claims and evidence, the Tribunal has taken account of the:
18.1.Migration and Refugee Division Guidelines on the Assessment of Credibility.
18.2.Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
18.3.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 country information submitted by the primary applicant is consistent with and adds to the country information set out by the Tribunal in this decision record.
The Tribunal notes the Venezuela country information reports extensively on significant and widespread human rights violations, repression of political dissent and freedom of expression, arbitrary detention, torture and mistreatment, enforced disappearances, inhumane detention conditions, excessive force, extra-judicial executions, impunity, and unfair trials.
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 the primary applicant’s oral and written evidence credible, consistent and persuasive, and accepts his account of what happened to him when he was in Venezuela, the experiences of his family in Venezuela since he left, and his time in Australia.
The Tribunal considers that the primary applicant was politically active in Venezuela through his organisation of and participation in multiple anti-government protests while he attended university and for some years afterwards while he was working at [Agency 1], however he did so in a manner that did not give him a public profile.
The Tribunal considers it is likely that the predominant reason the primary applicant was employed by [Agency 1] was the strong recommendation given by his friend [Friend A] to [Leader A], on which [Leader A] relied without question, and otherwise showed no interest in the primary applicant or his work.
The Tribunal notes that [Leader A] was subsequently treated by the Venezuelan government as a political dissident.
The Tribunal considers that [Leader B] was strongly aligned with the Venezuelan government.
The Tribunal considers it is likely that [Leader B] was aware of the primary applicant’s protest activities.
The Tribunal considers that [Leader B] regarded or perceived the primary applicant as a person operating in some way against the Venezuelan government.
The Tribunal considers that the primary applicant was repeatedly interrogated, threatened, accused, monitored and investigated by [Leader B] and/or his delegates from September 2015 to March 2017 resulting in heightened fear and stress for the primary applicant and ultimately his departure from Venezuela to Australia.
The Tribunal considers that, had the primary applicant attended the El Helicoide military prison [in] March 2017 as [Leader B] had demanded, it is likely the primary applicant would have been subjected to interrogation and ill-treatment and/or torture and other human rights violations.
The Tribunal notes that [Leader B] and his delegates monitored and questioned the primary applicant about his travel outside Venezuela.
The Tribunal considers it is likely [Leader B] and/or his delegates were aware that the primary applicant intended to leave Venezuela and continued to monitor his movements.
The Tribunal considers that the text message from [Leader B] to the primary applicant, the experiences of his family members after he arrived in Australia, and the blocking of the applicants’ Venezuelan bank accounts demonstrate an ongoing adverse interest in the primary applicant by the Venezuelan government.
The Tribunal considers the primary applicant’s participation in activities against the Venezuelan government after his arrival in Australia over the period 2017 to 2022 consistent with the primary applicant’s activities in Venezuela, in particular organising and participating in anti-government protests between 2006 and 2014, and not conduct engaged in by the primary applicant for the sole purpose of strengthening his claims for protection.[95]
[95] s 5J(6) of the Migration Act 1958 (Cth).
The Tribunal considers it is reasonable that the primary applicant did not seek to relocate to [Country 2] or other Latin American countries, weighing the lengthy delays in processing visa applications against the immediate threats he was facing in Venezuela.
The Tribunal considers it is reasonable that the primary applicant did not apply for a protection visa in Australia immediately on his arrival given that he held a student visa, and he intended to use his initial time here to study English and plan how to deal with the situation he faced in Venezuela. The Tribunal further considers it is reasonable that the primary applicant applied for a protection visa on the expiration of his student visa, having no other visa options and being unable to return to Venezuela.
The Tribunal considers that if the primary applicant returns to Venezuela, there is a real or substantial chance on his arrival or within the reasonably foreseeable future that:
38.1.The primary applicant would be questioned and investigated by the Venezuelan authorities about his activities in and travel from Venezuela and the circumstances of his departure and return as a consequence of his previous employment with [Agency 1], the repeated interrogation, threats, accusations, monitoring and investigations by [Leader B] and/or his delegates, and being perceived by the authorities as anti-government.
38.2.The primary applicant would be arrested and detained for an extended period with or without charge, deprived of his liberty, monitored, subjected to mistreatment and torture or death during detention, denied a fair trial, and/or subjected to enforced disappearance.
The Tribunal considers that if the primary 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.
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 activities in Venezuela and being perceived by the authorities as anti-government.
Other matter – “legal submission”
The Tribunal notes the support person who attended the hearing with the applicants appears on the Tribunal’s records as the recipient on behalf of the applicants. The Tribunal notes further that the support person/recipient is the author of a legal submission provided to the Tribunal in relation to the applicants’ case, which he has signed in his own name in his capacity as “Pro-bono [name] – Pro-bono Paralegal”.
A letter was sent by the Tribunal to the support person/recipient on 3 August 2023 stating (inter alia) as follows:
You are currently on the Tribunal’s records as the applicant’s authorised recipient.
If you have since been appointed as the applicant’s authorised representative, please submit a completed and signed form MR5.
The member draws your attention to ss 276 and 280 of the Migration Act dealing with the nature of immigration assistance and restrictions on the giving of immigration assistance. Your reference to being an exempt person suggests you may wish to claim an exemption under s 280(5) or s 280(5A). If the former, the unremunerated immigration assistance must relate to a request for ministerial intervention (s 276(2A)).
If the latter, you must be a close family member of the applicant. If the applicant intends to ask the Tribunal to consider a request for ministerial intervention, the member requests a written submission addressing the relevant considerations, and a statement from the applicant as to the status of their claims for protection, by Friday 4 August 2023.
Your early response is sought.
The support person/recipient responded to the Tribunal on the same date as follows:
I am informing the presiding member and the Tribunal that the applicant does not intend to ask the Tribunal to consider a request for ministerial intervention and does not intend to appoint [the support person/recipient] as an authorised representative, [the support person/recipient] is not a close family member.
The applicant is entitled to represent himself and his wife. The applicant is allowed to rely in the Submission prepared by [the support person/recipient]. The Submission can be signed by the applicant and is allowed by the Migration Act 1958 (Cth), or any law in any proceedings in any Tribunal or Courts.
The applicant is entitled to a fair hearing, there is nothing in the Migration Act 1958 (Cth) preventing the applicant to be self-represented, to represent his wife and to rely in the submission prepared by [the support person/recipient].
The presiding member has the legal and judiciary duty to interpret the statutes, treaties and law cases or precedents in accordance with the Acts Interpretation Act 1901 (Cth). [the support person/recipient] is requesting the presiding member to allow him to attend the Hearing as a support person. I am fully aware that as a support person, I cannot intervene in the Hearing.
Please let me know if I am allowed or not to attend the Hearing as a support person by Friday 4 August 2023.
The Tribunal advised the support person/recipient in writing that the applicants were entitled to have a support person present at the hearing if they wished.
The Tribunal considers that the Act is clear in its restrictions on who is permitted to give immigration assistance. There is no evidence before the Tribunal to demonstrate that the support person/recipient is a person permitted under the Act to give immigration assistance.
In considering the claims and evidence, and making its findings and decision in this case, the Tribunal has relied entirely on the written and oral evidence and submissions made by the primary applicant on his own behalf.
Application of law
The issue in this case is whether the primary 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:
49.1.The primary applicant is a citizen of Venezuela and non-citizen in Australia.
49.2.The secondary applicant is a citizen of Venezuela and non-citizen in Australia.
49.3.The secondary applicant is a member of the same family unit as the primary applicant.
49.4.The primary applicant fears being persecuted in Venezuela for the essential and significant reason of political opinion, being regarded or perceived by Venezuelan authorities to be anti-government.
49.5.There is a real chance that, if the primary applicant returns to Venezuela, he would be persecuted for that reason.
49.6.The persecution would involve serious harm.
49.7.The real chance of persecution relates to all areas of Venezuela.
49.8.There are no effective protection measures available to the primary applicant in Venezuela.
49.9.The primary applicant could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Venezuela.
49.10.The primary applicant has a well-founded fear of persecution as defined in s 5J of the Act.
49.11.The primary 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.
49.12.The primary applicant is a refugee as defined by s 5H(1)(a) of the Act.
CONCLUSION

The Tribunal is satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the primary applicant satisfies the criteria in s 36(2)(a) of the Act, accordingly, the secondary applicant satisfies the criterion in s 36(2)(b) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the primary applicant satisfies s 36(2)(a) of the Act and the secondary applicant satisfies s 36(2)(b) 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 4125

11 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice