1927648 (Refugee)

1927648 (Refugee) [2023] AATA 3555 (15 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANT’S REPRESENTATIVE:        Elizabeth Fischer, legal practitioner
CASE NUMBER:  1927648
COUNTRY OF REFERENCE:6                 Venezuela
MEMBER:Kate Chapple
DATE:15 August 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.

Statement made on 15 August 2023 at 12:34pm
CATCHWORDS
REFUGEE – protection visa – Venezuela – political opinion – protest participant, NGO/public sector employee and community volunteer – workplaces monitored by authorities, close work association with one public figure and social media association with another – protester friend killed, allegedly by agents of government – other friends jailed or left country – participation in protests and social media activity in Australia – delay in applying for protection – applied one day after student visa ceased – reasonable to concentrate on studies first – conduct in Australia not solely to strengthen claim – country information – politically-motivated arbitrary arrests, detentions, torture and extrajudicial killings – limited political opposition and effective judiciary – economic conditions – DFAT’s ‘do not travel’ advice – real chance of targeted and serious harm – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(6), 36(2)(a), 65
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 17 May 2018.
The applicant’s claims set out in the protection visa application (spelling and grammatical errors not corrected):
2.1.[reasons applicant left Venezuela] I LEFT MY HOME COUNTRY BECAUSE: MY COUNTRY HAS BEEN RULED FOR A COMMUNIST AUTHORITARIANISM SINCE MORE THAN TEN YEARS THAT HAS DESTROYED OUR ECONOMY AND SOCIET I CAN BE PROSECUTED OR EVEN MURDERED FOR HAVING A DIFFERENT POLITICAL OPINION OR IDEOLOGY. I CANNOT DEVELOP MY CAREER WITHOUT BEING AT RISK OR MY HUMAN RIGHTS ARE VIOLATED. IT WAS NO LONGER SAFE FOR ME TO LIVE THERE. I WAS THREATENED AND VERY OFTEN.
2.2.[harm experienced by applicant in Venezuela] I EXPERIENCED BOTH PHYSICAL AND PSYCHOLOGICAL HARM IN MY COUNTRY. PSYCHOLOGICAL: WHENEVER I GOT THREATENED FOR DELIVER THE EDUCATION VOLUNTEER WORK THAT I USED TO DO. PHYSICAL: DURING THE PACIFIC PROTEST CLAIMING FOR CHANGES IN THE COUNTRY, WE WERE BRUTALLY REPRESSED AND THE MOST COMMON DANGER WAS THE TEAR GAS BOMBS THE GOVERNMENT FORCES USED AGAINST US. ONCE I ALMOST DIE WHEN I COULD NOT FIND A WAY OUT OF THE BOMBS. THE PEOPLE RESPONSIBLE FOR THIS HARM WAS THE GOVERNMENT FORCES WITHIN THE CIVIL POPULATION AND THE MILITARY FORCES. THEY HARM US TO FINISH THE PROTESTS NO MATTER WHAT. YOU CAN SEE ALL THE VIDEOS AND PICTURES AVAILABLE ON THE INTERNET.
2.3.[reason applicant did not seek help] IT WAS POINTLESS TO SEEK HELP WITHIN THE COUNTRY. THEY CONTROL EVERY SINGLE SPACE OF POWER AND AUTHORITY IN THE WHOLE COUNTRY: JUSTICE, MILITARY, ELECTORAL, EXECUTIVE, ETC. IT WOULD NOT BE SUCCESSFUL ANY SEEK OF HELP FROM THE AUTHORITIES BECAUSE THEY ALL ARE THE PROBLEM.
2.4.[reason applicant did not try to move elsewhere in Venezuela] THERE IS NO PLACE WHERE YOU CAN BE SAFE. IN FACT, EVEN IF YOU GO TO THE SMALLEST TOWNS AND VILLAGES, LIFE IS EVEN WORST. THIS IS A WIDE NATIONAL PROBLEM; THERE IS NO SUCH A THING LIKE A SAFE PLACE TO GO. IF THERE WERE A PLACE TO MOVE WITHIN THE COUNTRY, EVERYBODY WOULD GO THERE INSTEAD OF LEAVING THE COUNTRY.
2.5.[applicant thinks this will happen to him if he returns to Venezuela] IF I RETURN TO MY COUNTRY, I WILL LOSE MY LIFE. FOR ME AS [AN OCCUPATION 1], IT WILL NEVER BE SAFE TO LIVE IN A COUNTRY WHERE YOU CANNOT DISAGREE POLITICALLY. AND BY DOING SO, YOU ARE AT RISK OF BEING PROSECUTED OR EVEN MURDER BY THE GOVERNMENT FORCES, SO YOU CAN NEVER BE FREE. IF YOU CANNOT DEVELOP YOU CAREER IN THE FIELD THAT YOU LIKE, IT IS NOT A LIFE THAT WORTH TO BE LIVED.
2.6.[applicant thinks he will be harmed if he returns to Venezuela] YES, I TRULY THINK I CAN BE HARM OR MISTREATED IF I RETURN TO VENEZUELA. I CAN EXPERIENCE BOTH PHYSICAL AND PSYCHOLOGICAL HARM AGAIN OR EVEN DEATH. THE PEOPLE RESPONSIBLE FOR THIS HARM WILL BE THE GOVERNMENT FORCES WITHIN THE CIVIL POPULATION AND THE MILITARY FORCES. THEY WILL HARM ME TO MAKE STOP DELIVERING THE EDUCATION VOLUNTEER WORK THAT I USED TO PROVIDE AND THEY WILL ALWAYS BE WATCHING ME TO FIND ANY PROOF OF "TREASON TO THE NATION" AGAINST ME TO PROSECUTE OR MURDER ME.
2.7.[reason applicant thinks the Venezuelan authorities will not protect him] NO, THEY WILL NEVER PROTECT ME IF I GO BACK. THE AUTHORITY IS THE GOVERNMENT ITSELF AND THEY CONTROL EVERYTHING. IT IS A WIDE NATIONAL PROBLEM. IT WOULD BE NAIVE AND ABSURD TO EXPECT PROTECTION FROM THE PEOPLE THAT IS HARMING YOU.
2.8.[reason applicant thinks he would not be able to relocate within Venezuela] IT IS POINTLESS TO RELOCATE. THERE IS NOWHERE TO GO WHERE YOU CAN BE SAFE AND SOUND. IT IS DANGEROUS EVERYWHERE YOU GO BECAUSE IT IS A NATIONAL SACLE PROBLEM. AND AS I SAID BEFORE, IF THERE WERE A PLACE TO GO WITHIN THE COUNTRY, EVERYBODY WOULD GO TO THAT PLACE INSTEAD OF LEAVING HIS OR HER COUNTRY FOREVER. THOUSANDS AND THOUSANDS OF VENEZUELAN HAVE LEFT THE COUNTRY FOR THIS POLITICAL CRISIS. FOR FURTHER INFORMATION, PLEASE READ MY CLAIM FOR PROTECTION LETTER.
Applicant’s additional written claims accompanying the protection visa application:
CLAIM FOR PROTECTION
Your Honour, my name is [the applicant], Bachelor degree in [Subject 1] with mention in [Specialisation], [Age] years old, born in Venezuelan with the National ID [number] and passport [number]. I arrived to Australia [in May] 2017 holding a Student Visa subclass 500 enrolled in a Certificate I and II in [Subject 2], which I have finalised successfully by now.
I have decided to ask for protection in Australia because of a well-founded fear of persecution in my home country due to political issues. It is not a secret for anybody that a communist government is ruling Venezuela since more than 15 years. They have been violating our human rights and literally persecuting (or even killing) whoever goes against their political ideology and government, this is easy to see in the news every day. The left-handed ideas they defend goes directly against the ideas of Political Liberalism, which is highly represented nowadays by the United States of America, Europe and many other countries including Australia; ideas that I personally defend as well.
I have always worked for my people and community since a young age, and I have always thought that volunteer work or community service is a powerful mechanism to start social changes needed to develop the human resources of a country, and extensively, to develop the nation. When I was selected as a scholarship-holder of the [Organisation 1 program], one of the main responsibilities was volunteer work and, by that time, we could not find a better way to do volunteer work than teaching children and teenagers prone to commit a crime. We started teaching them about values, the importance of hard work in life and English as a second language. After some time, the government forces got to know about our activities.
They threaten us and tried to make us stop but we kept going our education activities anyway. Sadly, those threats were growing faster over and over, and getting worst. We had to stop our volunteer work in education after we got told that the government was looking for us in order to prosecute everyone involved in that program for “Treason to the Nation”. That means, that we could have been one of the thousand students and young people murdered by the government during the prosecution.
On the other hand, when I finished my degree in [Subject 1], I started to work for [Organisation 2], which is a Non Government Organisation that encourages better relations between Venezuela and [Country 1]. For that reason, we were also victims of threats and inspections very often. The government wanted to find proofs of conspiracy to get a reason to prosecute everyone working in that organisation and get rid of it. So far, they have not found anything but it was very hard to work there without being watched every now and then. It is not life if you cannot even work in what you like or your own field of study because it is not safe anymore and every minimal mistake you make could be a reason for prosecution.
For me as [an Occupation 1], it will never be safe in my country. Not only because you cannot held your head up and rise your voice to disagree and show your different political opinion but because you can actually be prosecuted or persecuted for such a thing like that. There have been several pacific protests against the government claiming for freedom, rights, and changes. None of them have been successful so far. All those protest have been brutally repressed and dissolved; I know it because I was in most of them and, luckily, I could always run away alive. I am against violence at all times. For me, it is simply not the way to get good results in life. That’s why I have never been convicted of crime and I have never been involved in any violent event.
The catalyst event for me was when a friend of mine was murdered, apparently, because “he refused a theft” on-board of a public transport. His name was [Mr A] and he just had finished his degree in [Subject 3], and therefore, he had finished the scholarship program in [Organisation 1] as well, in which we met and work as volunteers. That news for me was devastating and made me realize that it was no longer safe for none of us anymore. We got to believe it was not a “refusal to theft” as the news said, deep inside we all knew what had happened; the government forces between the population had murdered one of our friend and they had made it looks like a regular crime, just like any other murder in Venezuela where there is no right to life in reality. Personally, I was really frightened after that and I started planning my way out before it was too late for me. I do fear for my life if I go back to Venezuela.
Bearing this mind and according to the last Guidance Note on the flow of Venezuelans issued by the UN Refugee Agency, hereby, I claim for your protection and I request the Visa 866 based on the definition of refugee due to political opinion described in the Migration Act 1958. I acknowledge the Australia’s protection obligations and I am willing to engage to them. Also, I have been tested and I have met the health and security requirements before coming to this country and I am willing to test again whenever needed. I really want to stay in this beautiful and pacific country where I can develop my career and potential as [an Occupation 1] and bring positive outcomes to my field of study.
In addition, please, consider my economical situation at this moment as well. I have no one to help me in here and for that reason I need to work to live. Having said that, I have nothing else to point out and I hope I can count on your support in this vital matter for my life.
Translated letter to the applicant from [Organisation 1] dated 30 July 2014 regarding the applicant’s engagement with the [Organisation].
Letter from [Organisation 2] dated 20 January 2017 regarding the applicant’s employment with [Organisation 2].
The applicant’s curriculum vitae, including the following extracts relevant to his protection claims:
[Employer 1] – Venezuela. 2015
[Job title 1]
· [Tasks 1]
…
[Organisation 2]. Caracas-Venezuela. 2016 to 2017
[Job title 2]
· [Tasks 2]
Other departmental records:
7.1.Decision record relating to the delegate’s refusal decision.
7.2.Interview audio file.
7.3.Case file.
7.4.Internal records relating to the applicant.
Application for review
Email submission to the Tribunal by the applicant’s representative dated 25 May 2021 providing (inter alia) as follows:
Please see attached extract from US Department of State Country Information Report on Venezuela and note that this information provides conclusive evidence that the particular social group: ‘returnees to Venezuela’, is highly likely to face persecution for reason of the political opinion of the Venezuelan government and its supporters. There is no reason to believe that this situation will improve in the foreseeable future.
We note that the review applicant last arrived in Australia [in] May 2017 and has not returned since that time. The Australian government has since made public statements calling for a return of democracy to Venezuela and supported opposition leader Juan Guaido as interim president. Clearly then, if the delegate’s decision is upheld by the tribunal and he is forced to return, he will be seen as a member of the particular social group: ‘returnees to Venezuela’, and subject to serious harm, including threats to his liberty, significant physical harassment and ill-treatment, significant economic hardship, denial of access to basic services and denial of capacity to earn a livelihood of any kind, threatening the family’s capacity to subsist.
COUNTRY INFORMATION UPDATE
United States Department of State 2020 Country Reports on Human Rights Practices, Venezuela D. FREEDOM OF MOVEMENT
Throughout the year high-level regime officials stigmatized returning citizens, blaming them for rising COVID-19 cases and calling them “bioterrorists” and “biological weapons.” On July 15, Maduro called on all citizens to report and apprehend returnees who crossed into the country through unofficial border crossings.
The illegitimate Maduro regime required returnees to spend a mandatory two-week quarantine period at shelters run by the armed forces at the border. Humanitarian organizations and interim government officials reported overcrowding and unsanitary conditions in quarantine shelters that increased the likelihood of COVID-19 transmission. Returnees held in these facilities suffered from insufficient food, water, electricity, and hygiene items, as well as physical insecurity that put vulnerable groups, particularly women and children, at risk of sexual violence and abuse. A COVID-19 diagnostic test was required for release from the quarantine shelters, but in view of the regime’s limited testing capacity, several returnees were held for as long as one month. Media reported returnees were kept from returning to their regions of origin and threatened by armed groups controlling the shelters not to report the poor conditions.
Media reported regime authorities blocked citizens from returning to the country. On June 6, the illegitimate Maduro regime adopted measures to limit the number of citizens returning to the country through the border with Colombia. Migrants were only allowed to return on three specific days a week, and regime authorities set a limit of 1,200-1,300 returnees weekly through Arauca, Cucuta, and Paraguachon. As of September more than 40,000 citizens waited to cross the border into the country through Cucuta, according to the Organization of American States (OAS) commissioner-general for the Venezuela refugee crisis David Smolansky. NGOs reported citizens unable to return to their country faced uncertain legal and financial statuses and were at high risk of victimization for crime, trafficking, and gender-based violence by criminal armed groups
The Tribunal wrote to the applicant’s representative inviting the applicant to attend a hearing on 7 August 2023 and to provide pre-hearing submissions.
Prior to the hearing, the applicant’s representative provided to the Tribunal:
10.1.Confirmation that the applicant intended to participate in the hearing in the presence of his representative.
10.2.Statutory declaration by the applicant dated 31 July 2023 as follows (attachments referenced):
1.     I was born in [Town], Venezuela on [Date] and am currently [Age] years of age. Annexed hereto and marked AARD-1 is a true copy of my passport ID page.
2.     I refer to my statement of claims dated 15 May 2018 and confirm that the contents therein remain true and correct in every particular. The following statement is to be considered together with all previous submissions.
3.     I grew up in [Town] with:
a.     Mother: [name omitted] (f, [DOB]), currently still living in [Town], Venezuela;
b.     Brother: [name omitted] (m, [DOB]), currently living in [Country 2] on a partner visa;
c.     Brother: [name omitted] (m, [DOB]), currently living in [Country 3] on a provisional work visa.
4.     In September 2010 ([age]), I moved to [a city] close to Caracas and lived with my aunt: [Ms B] (f, [DOB]).
5.     After I moved to Caracas, I commenced a Bachelor of [Subject 1] at [University], which I completed in July 2015. Annexed hereto and marked AARD-2 is a true copy of my qualification certificate.
6.     I studied [Subject 1] because I wanted to get involved in the things that my parents didn’t want to get involved in. I wanted to help people express their opinions freely, and live without fear of generalised crime or targeted persecution.
7.     I also worked part-time for [Employer 2] from 2010 to September 2014 as [an Occupation 2].
8.     While I was at Uni there were many protests, particularly from 2013 to 2016. I can’t remember how many protests I would have gone to but at least somewhere between 20 and 50, or more easily. As soon as I was [age] I was outside. Before then, I was too young. My aunt wouldn’t allow me.
9.     I’m not sure which protest it was that I saw Maria Corina Machado. Annexed hereto and marked AARD-3 is a true photo of me with her at a protest. I used to try not to post on social media for security reasons. Whenever I was in all these protests, I tried not to take any photos or allow anyone else to take photos of me for security reasons. This one with Corina is one of the very few that I’ve got. It was very important for me to be meet her.
10. The protests were meant to be peaceful at all times so the activities that we would go with our shirts and our signs, expressing our political disagreement and disappointment of all the things that were happening in front of our eyes. I remember one that was just because of the services. There was no electricity for a week and that was just one of the most memorable. It was tough. After a week, you’re not able to charge your phone to see what’s going on outside. I just saw out the window that everyone was going and I realised it was because of electricity and I said ’Yes, I’m going. Absolutely.’ We would get to a point and the government forces just don’t allow us to continue the protest. Even if we had permission, they would not allow us to do it. All the military and government forces would block the way.
11. I tried not get involved in anything violent. I didn’t create guarimbas. Creating more violence would just make things worse. The only protest that I did was the most pacific. When trying to be pacific we got violence. You don’t respond to violence with more violence so we had to run. They tried not to fire but they would sometimes. Mostly it was parallel government forces that are not from the police or military but they had guns they would try to create fear in between the civil population. According to the constitution they’re not allowed to but they did. The government provided the guns. They would go to the protests and create all that atmosphere of violence so the government can react. In those situations, there was arrests, shootings, teargas. Teargas was all the time for no apparent reason, they just throw them. Also ‘perdigons’. They could be fatal if they hit you in a bad spot however, they’re just superficial injuries. They use those ones all the time. It was the guns they tried not to use that often during the protest, but create the violent atmosphere.
12. I ran from police at protests. It was right in between university and [venue] and there is a river. There were protesting right from [Location 1] and through to [Location 2]. We couldn’t. as soon as we got through the university, there were forces outside waiting. It was supposed to be a peaceful protest. They started attacking us with teargas bombs all the time, rubber bullets. Some could kill you and definitely harm you. Those two were the most important weapons against us. They use it just to make the protest disappear. I was running through the river which is very dirty, and then climbed one of the bridges to [venue] to catch the train but they closed for the protests so we were running, running, running all the way to my house. It was so many blocks away and I remember feeling harmless because I wasn’t right in the front of the protest. They ended up in hospital or dead but I ran away but there are still government forces all around, looking at people in the protest just to get them, arrest them or whatever. I took off my teargas covering. When I was going home there was another group of police. Blocking the street. I didn’t know what to do. I couldn’t go back and I couldn’t go home. I was scared to go through them because they would say ‘where were you?’ so me and many other people went into a house that the people just helped, said ‘come in guys’. And the hosted for a while. We stood there for 2 hours until everything calmed down a bit more. And I came back home after that. That was one of many that I was so scared because I couldn’t breathe.
13. There was another one that wasn’t a protest but it’s an example of how bad because there were people protesting form their homes like making noises out of the window of the building with pots and pans. There were all these government forces running around the streets. We were doing the same in our home. The political forces shot a teargas bomb into the building. It broke my neighbour’s window. They weren’t even protesting and the gas got int their home right next to our apartment. Luckily, another neighbour came to help because they couldn’t do anything. They had very bad asthmas, couldn’t breathe, they covered their faces with wet cloth, got the tear gas bomb and put it in a bucket with water. It was all around the building and the apartment. That was in the apartment back home. It also made me feel bad because I was protesting and my neighbour suffered.
14. In 2011, I was accepted into [Organisation 1]. This was an excellence program to help students going through financial hardships during their studies. They provided scholarship with a monthly stipend and English classes with [Country 1] institutions. I could do voluntary work with them. They allowed me to travel and maximise my English skills in [Country 1]. It’s an NGO. It’s not a political program but we all belonged to the same way of thinking. It was something that I was really pursuing to join because as a student in University, I faced many challenges.
15. Annexed hereto and marked AARD-4 is a true copy of contemporaneous email from [Organisation 1], attaching a list that shows my name. The list is just for one of the chat clubs: A space where all of the scholarship holders could get together and get to know each other and practise English. You can see from the list that my friend, [Mr A] was in my group. I knew him through the program. He was doing [Subject 3] in a different university.
16. Annexed hereto and marked AARD-5 is a true photo of me together with a group form [Organisation 1]. [Mr A] is in that photo too.
17. [Mr A] was always opposing the government. He went to every protest. He was always looking for a chance to help and do something for the country. Always from a good way. He wasn’t there just against the government. He was always doing a volunteer job to help us and to help communities. However, in the eyes of the government, they always look at us like we’re causing problems and controversy, trying to make people believe in different ideology. We were always experiencing threats, not only at protest but even in our own workplace and houses.
18. I finished my degree in 2015, around the same time as [Mr A]. He had just finished his degree in [Subject 3] and then I found out from another member of [Organisation 1] that [Mr A] had been killed. I heard that his mum went to the graduation ceremony just to get his certificate. I couldn’t believe it. Then I read it in the local newspaper. It was unreal but when I saw his photo and his name, the description all matched. I didn’t buy the paper because it was just so sad. I have been unable to locate any news article about this online.
19. In the local newspaper article that I read, they said he had been robbed, that it was a ‘daylight crime’ because he refused to give his belongings to the thieves. I don’t buy the story of his death because of a wallet. That happens all the time in Venezuela. We have an expression in Venezuela about how people just hand over everything they’ve got to be safe. We are used to getting robbed. That’s something that could happen very easily. Usually, you don’t lose your life. [Mr A] wasn’t very wealthy. He was just one of us. Not to be a target for criminals for money or valuable things. He just had his cheap cell phone or very little money.
20. After I finished my degree in 2015, I got a job in [Organisation 2]. I worked there for a year. My role was [Job title 2]. Annexed hereto and marked AARD-6 is true evidence in this regard.
21. I arrived in Australia in May 2017.
22. Shortly after I arrived, I went to vote for the primaries in 2018/2019 in [Location 3]. It wasn’t a government election perse but between the political parties of the opposition. I voted for [Mr D].
23. I signed the Plebiscite in July 2017. I did that here in Brisbane.
24. I attended an event at [Location 4], Brisbane. There was one here on the Gold Coast. And I did sign the petition at the gold coast.
25. I have applied for job opportunities related to my field but nothing so far. The closest is [deleted].
26. I’m currently working for [an employer].
27. I’m active on social media but not in relation to politics. I post now related to my work but before that, the few things I posted, you can see there what’s my position. Annexed hereto and marked AARD-7 are true extracts from my social media profile, including a protest that I attended here in Brisbane, in front of [a Venue], and screenshots from a video that I posted for Venezuelan Independence Day, as well as another video showing the hospital crisis in Venezuela to raise money for a GoFundMe campaign to support medical students during the pandemic.
28. What I’ve heard that Machado who I’ve been following since uni, she’s the only one left in the country in the moment. She would like to run again for president. She will have my support if I have to go and vote in Sydney or whatever I can from here. Apart from her the other political leaders are outside of the country, in jail, or politically dead. She has been politically disabled. According to the government, she won’t be fit to apply for the role of president of Venezuela because the government has politically disabled her rights to. So maybe that’s going to be a problem for the future.
29. That’s all I know. I try not to follow that much. I just want to make sure my mum and my aunt are ok. I try not to follow the news because it’s overwhelming. Here, far away, not being able to do anything. It just makes me feel worse. It’s not good for my mental health. I clearly have no power. There’s nothing I can do.
30. I’m not seeing a counsellor at the moment. My aunt’s dealing with depression and anxiety at home. I’m just trying to help her. She’s got to that level of bad. I’m focussing on helping her first. Then I can look after myself. Mostly it’s my mum and my aunty helping her because they’re there. What I can do is just be there for them on the phone. She doesn’t want to talk anymore. She’s isolating herself. I send money for a psychiatrist and medicines, and try to find ways to get medications from overseas.
31. I refer to the Department of Home Affairs decision dated 12 September 2019.
Political opinion
32. I did finish my undergraduate but I was untouchable by the government forces. They couldn’t get into the campus. They could go around if they want to but never come in. It was a safe place. I finished because I was committed to it. Nothing was going to stop me doing that. I love my career. I was just like on a visiting my friend in [Country 1]. It doesn’t mean there is no threat or mistreatment. It doesn’t mean that I hadn’t experienced anything before. If I went to jail, I wouldn’t be here. I would still be there or be murdered. Everyone that experienced a threat or mistreatment there would be no one left to apply for protection visa.
33. I had to change routes to University or other places to do volunteer work. One day I’ll go subway, the other day take the bus, not wearing anything to indicate my association.
Failed asylum seeker
34. This doesn’t make any sense. You don’t have to be high profile to be a target. Everyone could be targeted. In the association that I worked for, we were about passive aggression, getting into buildings to get evidence of conspiracy against the government. We said we’re looking at the commerce, not conspiracy. I was doing it outside of work but inside of work I experienced getting people in the political forces. It’s like ‘what for? To create fear? They said ‘you are being watched.’
Delay in Applying
35. When I first came to this country, it took me a while to lodge the application, to make sure that it could be satisfied. It wasn’t something that I wanted to do straight away because I was scared to go back. I wanted to gather all the pieces of information that would be useful. I went into the portal and researched whether I was going to be successful. It wasn’t that much. It was a year.
36. I did it myself. I should have looked for advice prior to my lodgement but I thought I had a real genuine case. I thought it would be accepted even if I was doing it myself.
Fear of Return
37. I’ve been here 6 years. I want to see my Mum and my Aunt but somewhere outside Venezuela.
38. My mother is still in Venezuela and [aunts]. She survives off money that we send. I have brothers overseas in [Country 3] on a temporary visa, looking to extend to a permanent one after 2 years working. At the time he arrived there were no restrictions but now Venezuelans require a visa. I have another brother in [Country 2] via a partner visa. My mum still lives in [Town]. They have had electricity services but it comes and goes. It also affects the rates of our livings because it affects all the appliances in the house and they’re quite expensive to buy a new refrigerator, for example, because the service is just unstable.
39. It’s hard for her to make a living with what we send and also to purchase goods because of not having electricity.
40. The water supply is 30 minutes per day. They actually don’t advise when it’s going to be, just leave the faucets open then try to take all the water they can. Then when it’s gone it’s gone and they have to survive with the water that they collect.
41. My mum lives with my aunt, her sister.
42. She’s an old lady so she hasn’t experienced any sort of criminal activities directly but there’s always a fear. After 7pm she wouldn’t go outside for no reason. She only goes outside when she needs to, to go for groceries or do specific things downtown. Most of the time she stays at home. When they go out it’s during the daytime when she feels safer. It is a challenge to be in that situation where you’re not even able to go outside to have dinner with friends or something.
43. I was living in Caracas with my aunt. Security wise, exactly the same. She doesn’t go out when the daylight’s gone. That’s dangerous. They just go outside during the day if they need to. Electricity-wise, it’s not as bad as at my mum’s place because it’s in Caracas but the water is the same, 30 minutes, maybe twice a day.
44. The Carnet de la Patria was introduced in about 2016/17, after I left. I personally don’t know anyone who has a carnet. I’ve heard that they were trying to use that carnet to allow people to travel overseas. Imagine how hard it is for someone who doesn’t align with them to get that just to travel and then go back in. It is quite terrifying.
45. If I am forced to return to Venezuela, I fear that I might be subject to serious harm, including threats to my life and liberty, significant physical harassment, significant physical ill-treatment, significant economic hardship that threatens my capacity to subsist, denial of access to basic services that threatens my capacity to subsist, and denial of capacity to earn a livelihood of any kind, threatening my capacity to subsist, for reason of political opinion.
11.1.Submission to the Tribunal by the applicant’s representative dated 31 July 2023 (inter alia) as follows:
We note the following country information applicable at the time of Hearing:
UN High Commissioner for Refugees (UNHCR), Guidance Note on the Outflow of Venezuelans March 2018, available at: [accessed 31 August 2018]
1. Venezuela continues to experience a significant outflow of Venezuelans to neighbouring
countries, other countries in the region, and countries further afield. While individual
circumstances and reasons for these movements vary, international protection considerations have become apparent for a very significant proportion of Venezuelans.1 UNHCR’s concern for Venezuelans outside their country of origin implicates UNHCR’s mandate.
2. Against this background, UNHCR calls on States receiving and/or already hosting Venezuelans to allow them access to their territory. … Such arrangements are guided by the principle that providing international protection is a humanitarian and non-political act.
Access to asylum procedures
4. All decisions on asylum claims need to take into account relevant, reliable and up-to-date country of origin information.
US Department of State Human Rights Report Venezuela 2022, accessed from
11 July 2023
The FFM report stated “real and perceived dissidents and opponents” of the Maduro regime increasingly included individuals and organizations that documented, reported, or attempted to address human rights or social and economic problems in the country. The FFM concluded that it had reasonable grounds to believe Maduro and other high-level members of the regime used security agencies such as the Directorate General of Military Counterintelligence (DGCIM) and Bolivarian National Intelligence Service (SEBIN) to suppress dissent through actions that included extrajudicial killings.
The Public Ministry is responsible for initiating judicial investigations of security force abuses. The Office for Protection of Human Rights in the Public Ministry is responsible for investigating cases involving crimes committed by public officials, particularly security officials. There was, however, no official information available on the number of public officials prosecuted, convicted, or sentenced to prison for involvement in extrajudicial killings, which, in the case of killings committed by police, were often classified as “resistance to authority.”
The regime did not publish data on arbitrary or unlawful killings committed during the year. In August Tarek William Saab, whom the regime styled as attorney general, reported that between 2017 and August, 1,527 security officers were accused of homicide; torture or inhuman, cruel, or degrading treatment; 762 were imprisoned; and 279 were convicted for their crimes, but he made no reference to arbitrary killings.
NGOs Venezuelan Education-Action Program on Human Rights (PROVEA) and Fundación Gumilla documented 485 extrajudicial killings in the context of security operations or protests in the first half of the year. State police were involved in the highest number of killings at 25 percent, followed by the National Bolivarian Police (PNB) at 20 percent, and then the National Scientific, Criminal, and Investigative Corps (CICPC) at 19 percent. Most of the victims
(63 percent) were young men between 18 and 30 years old. The NGO Venezuelan Violence Observatory reported 104 deaths involving police or security forces from July to September, with PNB involved in 28 percent of the deaths.
The NGO PROVEA reported that a September 8-11 police operation carried out at Los Valles del Tuy in Miranda State resulted in 23 extrajudicial killings. The operation was led by the National Anti-Extortion and Kidnapping Command, Miranda municipal police, GNB, PNB, and CICPC. Although the regime claimed that all the deceased were linked to criminal gangs and that they died during confrontations, relatives alleged police arbitrarily executed their family members.
The Maduro regime-aligned Office of the Human Rights Ombudsman did not publish statistics regarding allegations of torture by police during the year. Several NGOs detailed cases of widespread torture and “cruel, inhuman, and degrading treatment.”
In September the FFM released a third report focused on crimes against humanity committed through structures and individuals in the regime’s intelligence services, specifically DGCIM and SEBIN, as part of a systematic plan to repress opposition to the regime. The report noted the violent acts were not committed arbitrarily but rather were part of a system orchestrated and executed by the Maduro regime to repress dissidents. The FFM documented that SEBIN played a fundamental role in the detention of opponents, including politicians, human rights defenders, and protesters. Most prisoners were taken to El Helicoide (SEBIN) and Boleita (DGCIM) torture detention facilities, but there were several detention centers around the country.
The report detailed that torture was a systematic procedure in both El Helicoide and Boleita. The FFM documented 122 cases of victims subjected to torture, sexual violence, and other inhuman punishment by DGCIM agents beginning in 2014. At SEBIN, it documented 51 cases of torture or inhuman treatment. The FFM reported DGCIM and SEBIN recruited low-level officers who were young and poor, with low levels of education, and who often had alcohol or drug dependencies. The FFM noted the vulnerable state of these low-level officials made them easier to manipulate through a system of rewards or punishments.
Media and NGOs reported beatings and humiliating treatment of suspects during arrests were common and involved various law enforcement agencies and the military controlled by the Maduro regime.
Cases of torture and other cruel, inhuman, or degrading treatment or punishment of prisoners were also reported. Regime-aligned individuals subjected detainees to asphyxiation, electric shock, broken bones, hanging by their limbs, and being
forced to spend hours on their knees. Detainees were also subjected to cold temperatures, sensory deprivation, and sleep deprivation; remained handcuffed for extended periods of time; and received death threats to themselves and their relatives. Detainees reported regime-aligned security forces moved them from detention centers to houses and other clandestine locations where abuse took place.
Cruel treatment frequently involved denying prisoners medical care and holding them for long periods in solitary confinement. The latter practice was most prevalent with political prisoners. NGOs detailed reports from detainees who were victims of sexual and gender-based violence by security units. The OHCHR received complaints of torture or cruel treatment related to 14 detainees from May 2021 to April 2022. The OHCHR stated the lack of investigations into complaints of torture and lack of protection against reprisals discouraged victims to come forward.
The Casla Institute for the Study of Latin America continued to denounce the construction of new places of torture used by the regime in collaboration with Cuban intelligence officers who actively participated in repression and trained the regime in methods of torture while sometimes performing torture themselves. The Casla Institute reported new torture patterns employed by the regime-aligned military, including hitting victims with a metal bar, submerging naked victims in ice-cold wells, inserting objects in the nose and ears, using burn-causing agents, injecting hallucinogens, and putting a gun in the victim’s mouth.
Impunity for security forces was a significant problem. Despite continued reports of police abuse and involvement in crime, particularly in the activities of illegally armed groups, including illegal and arbitrary detentions, extrajudicial killings, kidnappings, and the excessive use of force, the Maduro regime took no effective action to investigate individuals who committed human rights abuses. Corruption, inadequate police training and equipment, and insufficient central government funding, particularly for police forces in states and municipalities governed by opposition officials, reduced the effectiveness of security forces. NGOs noted that many victims did not report violent crimes to police or the regime due to fear of retribution or lack of confidence in police.
D. ARBITRARY ARREST OR DETENTION
The constitution prohibits the arrest or detention of an individual without a judicial order and provides for the accused to remain free while being tried, but judges and prosecutors often disregarded these provisions. NGOs such
as Foro Penal, the Committee for the Families of Victims of February - March 1989, the Institute for Press and Society, Espacio Publico, and PROVEA noted at least 2,000 open cases of arbitrary detentions; however, the Maduro regime rarely granted detainees the right to challenge the lawfulness of their detentions in court, even though the right to do so is stipulated by law. The regime arbitrarily detained individuals, including foreign citizens, for extended periods without criminal charges.
Misuse of International Law Enforcement Tools: There were credible reports the Maduro regime attempted to misuse international law enforcement tools, including Interpol Red Notices, for politically motivated purposes as a reprisal against specific individuals located outside the country. On August 4, regime attorney general Saab purportedly issued an arrest warrant for Miami-based journalist Carla Angola, for statements she made suggesting the United States should coordinate a drone attack against Maduro. Also on August 4, the First Tribunal of First Instance ratified an arrest warrant and extradition notice against exiled opposition leader Julio Borges for an alleged connection to the 2018 alleged drone attack against Maduro.
On September 22, following the transfer of the majority of shares in the ownership of fertilizer company Monomeros from Colombia back to the regime, the regime stated it filed for Interpol red notices against 23 opposition-linked managers who had been at the helm of the company since the interim government took it over in 2019. The regime accused the 23 of corruption and malfeasance.
F. ARBITRARY OR UNLAWFUL INTERFERENCE WITH PRIVACY, FAMILY, HOME, OR CORRESPONDENCE
State surveillance remained rampant, including through the assistance of telecom regulator the National Telecommunications Commission (CONATEL) and state-run telecommunications provider CANTV. Technical attacks against media outlets appeared to be linked to the armed forces.
The People’s Republic of China, through its telecommunications corporation Zhongxing Telecommunication Equipment Corporation, continued to provide the Maduro regime with technology to monitor citizens’ social, political, and economic behavior through an identity card called carnet de la patria (homeland card). To force citizens to comply, the regime made it obligatory to present the card to obtain social services, including pensions, medicine,
food baskets, subsidized fuel, and in some instances COVID vaccinations. Citizens essentially had no choice other than to obtain and use the card despite the known tracking methods. Chinese companies such as Huawei and the China National Electronics Import-Export Company also supported, financially and technologically, these surveillance methods.
On June 22, Spanish telecommunication company Telefonica revealed the Maduro regime increased requests to listen in on telephone conversations of citizens. According to Telefonica, the regime increased its requests from 234,932 in 2017 to 861,004 in 2021. Telefonica is required by law to comply with requests made by the regime. The Public Ministry, CICPC, and SEBIN are among the institutions able to request a telephone interception.
Freedom of Expression: The law makes conviction of insulting the president punishable by six to 30 months in prison without bail, with lesser penalties for insulting lower-ranking officials. The 2017 Constitutional Law against Hate, for Political Coexistence and Tolerance stipulates prison sentences of up to 20 years for persons convicted of violations. While the stated purpose of the law was to “promote peace and tolerance,” NGOs observed the vaguely written law could be used to silence political parties, activists, and civil society leaders as well as media outlets and journalists. Conviction of exposing another person to public contempt or hatred is punishable by prison sentences of one to three years and fines. In April, the OHCHR documented at least 34 cases of abuse of freedom of expression, including harassment, censorship, and seizure of equipment from media outlets, one radio station closure, the
suspension of three radio programs critical of the regime, and 41 blocks to webpages that included independent media outlets, NGOs, and sites related to internet security, by regime and private internet providers.
On April 18, Olga Mata and Florencio Gil were arrested for “inciting hate” after they published a video on TikTok that criticized high-level regime-aligned individuals such as Diosdado Cabello and called Maduro’s wife, Cilia Flores, a “widow.” Regime attorney general Saab, also mentioned in the TikTok video, announced the arrest, accusing both of “instigating the assassination of public figures.” The pair were released following a public outcry but were required to report to court monthly. Mata was also made to record an apology video.
Since 2017, the so-called law against hate was used to punish “hate crimes,” including messages on social media. The law was often used to arrest political dissidents and continue intimidation limiting their rights even when released by banning international travel and requiring regular court appearances.
According to a study by the NGO Un Mundo sin Mordaza, 93 percent of persons surveyed in the country considered that freedom of expression could not be fully exercised, and 26 percent responded they never believed they were safe when expressing their opinion or disseminating information. In the results of its Self-Censorship Survey in which 700 persons participated, the NGO concluded there was a clear lack of trust in the regime by citizens. In the survey, 565 persons indicated there was no possibility of expressing themselves in peaceful demonstrations due to fear of being attacked, harassed, or even killed by security forces. According to the study, 29 percent considered they exercised some level of self-censorship and 30 percent responded they almost always self-censored on social networks.
Libel/Slander Laws: Libel and slander are criminal offenses, punishable by one to three years’ imprisonment and a significant fine. Regime-aligned individuals engaged in reprisals against media organizations and individuals who publicly expressed criticism of Maduro or regime policy.
National Security: The law allows the government to suspend or revoke licenses when it determines such actions necessary in the interests of public order or security. The Maduro regime exercised control over the press through a public entity, the Strategic Center for Security and Protection of the Homeland, which is similar to the governmental entity Center for National Situational Studies. The two entities have similar mandates and are responsible for “compiling, processing, analyzing, and classifying” both regime-released and other public information with the objective of “protecting the interests and objectives of the state.”
The regime continuously used the law against organized crime and financing of terrorism to implicate and accuse political opponents of committing crimes.
D. FREEDOM OF MOVEMENT AND THE RIGHT TO LEAVE THE COUNTRY
The constitution provides for freedom of internal movement, foreign travel, emigration, and repatriation; however, the Maduro regime did not respect these related rights.
In-country Movement: The Maduro regime restricted the movement of some opposition leaders, at times refusing to allow them to board some domestic flights.
See the Department of State’s annual Trafficking in Persons Report.
Foreign Travel: Obtaining a passport remained difficult during the year. For three weeks in June, the Identification, Migration, and Immigration Administration Service webpage was inoperative. The regime repeatedly seized passports from journalists, members of the opposition, and National Assembly deputies at ports of entry without explanation as they attempted to depart the country. The regime reportedly charged exorbitant extraofficial rates for citizens, in U.S. dollars, to obtain passports or citizen services.
On August 24, the director of NGO Coalición para los Derechos Humanos, Alonso Media Roa, a prominent human rights advocate and defense lawyer for several high-profile military and nonmilitary political prisoners, was turned away at the Maiquetia International Airport in La Guaira and told by authorities he had an exit ban placed on him by the CICPC police division. Media Roa was told he was not allowed to leave the country and was ordered to present
himself at the CICPC regarding an open investigation and was not allowed to leave the country.
Due to continued border closures through much of the year, citizens traveling into and out of the country often had no choice but to use informal border crossings that largely were controlled by illegal armed groups. Activists and NGOs reported that citizens utilizing the crossings faced significant risks, such as gender-based violence and human trafficking, including forced labor, sexual servitude, and the forced recruitment of children into armed conflict at the
hands of criminal groups. Human traffickers used sea routes to transport victims to nearby countries, and migrant smugglers also sent refugees and migrants on dangerous sea journeys.
Individuals were often subjected to debt bondage or forced to pay a tax to illegal armed groups at the informal border crossing, increasing the vulnerability of migrants to labor exploitation, harassment, sexual violence, and human trafficking, including forced labor and sex trafficking. Many were vulnerable to recruitment, sometimes forced, into drug trafficking rings or illegal and other armed groups.
Political Parties and Political Participation: Opposition political parties and PSUV dissidents operated in a restrictive atmosphere characterized by intimidation, the threat of prosecution or administrative sanction on questionable charges, and very limited mainstream media access.
On June 4, regime-linked sympathizers interrupted an event in Zulia where Interim President Juan Guaidó was scheduled to promote the Unitary Platform’s electoral strategy. Regime-linked colectivos harassed those participating in the political activity and generated chaos by throwing chairs. Guaidó was unable to carry out his event as planned.
On June 11, Guaidó was attacked in the rural municipality of San Carlos in opposition-controlled Cojedes State while he engaged in public outreach. According to Guaidó and his team, the aggression was initiated by a group of approximately 60 persons led by PSUV militants and colectivos who pushed, beat, and threatened him. Several members of Guaidó’s team were also assaulted. The interim government’s press team reported the attack was led by the former PSUV gubernatorial candidate for Cojedes, Nosliw Rodríguez, purported 2021 national assembly (I-AN) PSUV deputy Marcos Mendoza, PSUV councilman Orlando Martinez, former assistant to the regime’s ambassador to Honduras Luis Casadiego, and I-AN PSUV deputy John Moreno. PSUV leader Iris Varela was also reportedly present.
On October 3, Guaidó published a video on Twitter showing a car allegedly driven by regime security forces following him and his team. Guaidó claimed he was constantly followed and watched by regime security forces such as FANB.
Retribution against Human Rights Defenders: The OHCHR recorded 154 incidents related to restrictions on civic and democratic space in the country, including 46 criminal cases, 26 reports of threats and harassment, 11 acts of violence, and 71 cases of discrimination of human rights defenders, journalists, and other members of civil society, including five women, on social media or in public broadcasts.
The United Nations or Other International Bodies: The Maduro regime was generally hostile toward international human rights bodies …
A. FREEDOM OF ASSOCIATION AND THE RIGHT TO COLLECTIVE BARGAINING
The code of military justice establishes arrest sentences between six months and one year for verbal abuse against a sentry, a public official, or the armed forces. This type of criminal offense was used against workers unconstitutionally subjected to military jurisdiction.
D. DISCRIMINATION WITH RESPECT TO EMPLOYMENT AND OCCUPATION
NGOs reported that public-sector employees faced discrimination and harassment for their political beliefs or activities. In 2021, the ILO expressed deep concern regarding the large number of reported instances of acts of discrimination at work, harassment, and dismissal of employees on the basis of political opinion, as inconsistent with the country’s obligations under ILO conventions on discrimination. In July, the NGO Fordisi, which worked with teachers’ unions, reported that 2,153 teachers in Carabobo, 700 in Guarico, 141 in Portuguesa, and six in Caracas stopped receiving a salary, a move activists said came in retaliation for speaking out against the regime’s labor practices.
Informal Sector: An estimated 40 percent of the population worked in the informal sector, where labor law and protections generally were not enforced, and labor violations occurred frequently. The regime made little effort to provide social protections to part-time workers or workers in the informal sector.
If forced to return to Venezuela, the applicant fears serious harm, including threats to his life and liberty, significant physical harassment, significant physical ill-treatment, significant economic hardship that threatens his capacity to subsist, denial of access to basic services that threatens his
capacity to subsist, and denial of capacity to earn a livelihood of any kind, threatening his capacity to subsist, for reason of:
a)   Political opinion;
b) The political opinion of Venezuelan Government supporters;
c)   Imputed political opinion as a returnee from Australia after 7 years (see our email dated 25 May 2021) and resident of Caracas; and
d) Membership of Particular Social Groups: ‘Young men ’ and ‘Resident of Caracas’.
Country information presented above provides objective support for the applicants claims that he faces a ‘real risk’ of serious harm if forced to return to Venezuela. Further to our above-mentioned email of 21 April 2016, we note that Venezuelans living abroad at the time when Carnets de la Patria were issued would be unable to demonstrate support for the Venezuelan government upon return, and therefore denied access to basic services.
The Hearing

The applicant appeared before the Tribunal at a hearing conducted in person on 7 August 2023. The applicant did not request an interpreter. The applicant’s representative was present at the hearing.
The applicant gave evidence, summarised by the Tribunal as follows:
12.1.The applicant grew up with his mother and two brothers in [Town]. He had met his father; however there has been no contact for a long time. His mother, now aged [Age], was [an Occupation 4]. His father was [an Occupation 5] who then attended university and graduated as [an Occupation 6]. One brother is now in [Country 3] working in a [workplace]; the other brother is in [Country 2] working in [Work sector].
12.2.At [Age], the applicant went to [City] to live with his aunt and study [Subject 1] at the university there. His family was not politically active. The applicant could see the worsening political situation in Venezuela and wanted to get active and make a change for the country. He decided to study [Subject 1] so he could gain the knowledge and make the connections he needed. The applicant’s aim was to get into [career sector]; his big dream at [Age] was to become [deleted].
12.3.From age [age], the applicant started participating in protests against the Venezuelan government. He can’t recall the number of protests because he participated in so many, around two to three each week. Protests were organised by an opposition political party to enable the public to voice their objection to the government about a range of issues. Protests occurred all around the city, typically thousands of people participated, and they would march towards a particular location or building that was symbolic of the issue. As the protesters neared their destination and the authorities tried to block them, the protest would get out of control and violent, and this would be the excuse for the authorities to intervene. There were also police on motorcycles monitoring the crowd and taking photographs of protesters.
12.4.The applicant was aware of always being watched by police at protests, but on each occasion he managed to run away and avoid being questioned or detained. There was one occasion that was particularly horrifying for the applicant because he felt he was very close to being caught by the authorities: he faced blockades in every direction, he swam through a polluted river to get access to the bridge and subway but couldn’t get through, he tossed his backpack that identified him as a student and was rescued by a lady who sheltered him and others in her home until the threat passed.
12.5.The applicant met Maria Machado at one of the early protests he participated in. It was very important to the applicant that he meet her because he then and still believes that she is the country’s only hope for a way out of the political situation. Others who’ve opposed the government have been jailed or are politically dead. The government has tried to ban her for years; she’s trying to run for president, but the electoral commission which is manipulated by the government will likely not allow it. The photo of the applicant with Machado was posted on social media. His family cautioned him against the risks of exposing himself in that way, so he decided to avoid photographs and social media. After meeting Machado, the applicant followed her on social media, but stopped when he came to Australia. He’s not aware of her current situation as he stopped reading Venezuelan news to avoid harming himself; there is nothing he can do that will make a difference.
12.6.The applicant didn’t get involved in politics on campus. The students involved in politics weren’t representing students’ interests. He wanted to do politics differently. His focus at university was on being a student and preparing for his career.
12.7.The applicant became involved with [Organisation 1] early in his university years having been awarded a scholarship program that was aimed at providing support to students with financial difficulties. They also provided English education and opportunities to practise English-speaking skills; he was assigned a professional mentor, a business owner who worked in [Work sector]; and he did volunteer work with NGOs raising money for and [providing services for the homeless and young children]. The applicant was aware through friends and colleagues that the authorities were watching the work of the [Organisation] to make sure it didn’t stray beyond education. Any organisation or activities related to [Country 1] were a target for monitoring by the authorities, even though their central purpose was to make a difference to communities.
12.8.The applicant went through [Organisation 1] scholarship program with [Mr A]; they became good friends and they also participated in protests together. [Mr A] was very politically active, always opposing the government. He thinks [Mr A] was murdered by government forces. The newspaper article made it look like daylight robbery, but the applicant doesn’t buy that story. [Mr A] didn’t have much money, and nor did the applicant. It’s common in Venezuela to be held up by thieves; it’s safer to hand over whatever they demand, and that’s what [Mr A] would have done. For [Mr A] to have been killed meant to the applicant that the perpetrators weren’t interested in the bit of money and cheap phone [Mr A] would have had on him; rather, he believes [Mr A] was targeted for his political activities. The applicant hadn’t spoken to [Mr A] before his death, so he’s not sure what in particular he might have been planning or involved in the time that could have provoked the attack.
12.9.Through [Organisation 1], the applicant won a scholarship to study English in [City, Country 1] for 5 weeks while he was still studying at university. During his time in [City] he was hosted by a woman who he developed a good relationship with. When he finished university, he returned to [City] to visit her.
12.10.Also through [Organisation 1], the applicant found out about a job opportunity with [Organisation 2]. He applied and was successful. He was appointed a [Job title 2], and worked closely with [a Country 1 agency] in Venezuela to help [Organisation 2] [members]. The authorities closely monitored [Organisation 2] and frequently arrived unannounced, with guns, to audit files and interrogate the senior people. The applicant was just [a Job title 2], so he wasn’t interrogated. He worked there for one year until just before he came to Australia. During that year, he was still going to protests. The others in the office knew; they were too afraid, but saw him as brave for participating.
12.11.What happened to [Mr A] was a significant factor in the applicant’s decision to leave Venezuela. Knowing someone so close to him who had been killed for, in his view, political reasons, and also having friends from university in jail and exile was making him very concerned about his own safety. Even though he went about his activism differently from his more vocal friends (no violence, not exposing himself on social media, trying to do good work in communities), he felt he was always vulnerable to monitoring by the authorities through his work with [Organisations 1 and 2].
12.12.The applicant decided to come to Australia to get a break. He was hosted here by a friend he’d met through [Organisation 1]. He completed a one-year certificate in [Subject 2]. During that time, the situation worsened in Venezuela, his family were very worried about him returning and getting involved in protests as he did in the past, they wanted him to be safe. If he returned to Venezuela, he couldn’t be silent about what was going on. He did his own research and applied for a protection visa believing it was applicable to his circumstances. He made a mistake in not applying for a protection visa before the expiration of his student visa; there was a day’s gap, which he regrets, he should have got advice.
12.13.Since being in Australia, the applicant participated in an anti-Venezuelan government protest in Brisbane and posted some anti-government material on [Social media]. He stopped posting a couple of years ago because he can’t do anything to change the situation in Venezuela, he has no power or influence from here. In the future, if he can, he will raise his voice again, but for now he is trying to stay away from it all.
12.14.If the applicant returned to Venezuela, he’s not sure he would even get through the airport as he understands citizens now need permits to come and go; he’s not sure, people have told him about the permits, they are something like the Carnet de la Patria. On being questioned by the Tribunal, the representative was unaware of the permit, however undertook to find out more detail and advise the Tribunal.
12.15.The applicant is worried about being questioned about his absence from Venezuela and his past protest activities. He doesn’t know if he has a profile with the authorities, but knows he would be at risk when he started protesting again. He would also be at risk trying to use his [Subject 1] qualifications to pursue the [career] that he had ambitions for at university. He doesn’t see himself being [an] academic who doesn’t get involved in [Career sector]. He feels uncomfortable not being able to provide to the Tribunal documentary proof of his claims.
The representative submitted that: while the applicant had taken precautions in Venezuela to be less exposed to the authorities and managed to escape harm does not mean he is not at risk of harm if he returns; a person does not have to be high profile to be a target of the authorities in Venezuela; the applicant is a high achiever in his field and returning to Venezuela would mean that to avoid harm he couldn’t pursue his previous community work or progress his career; the applicant would not sign a statement of allegiance to the government; he is a young male protecting his family.
Post-hearing submissions
The Tribunal granted the representative one week to provide details of the permit the applicant referred to in his oral evidence.
The representative provided to the Tribunal a further statutory declaration by the applicant dated 14 August 2023 as follows:
1.    I refer to the following extract from contemporaneous legal file notes from Hearing on 7 August: ‘If you did return to Venezuela now, what do you think will happen to you? – I won’t be able to go through the airport. Now they’re requesting a permit to go out and enter the country. It’s something similar to the carnet de la patria to get an ID that allows you to buy food. ‘So you say it’s different to the carnet de la patria. Do you know what it’s called? – I’ve just heard. I don’t read the news or anything.’
2.    I hereby withdraw the above claim. Upon review, to the best of my knowledge, there is no permit (apart from the Carnet de la Patria) to enter and depart Venezuela. As I said in the tribunal, that was something I heard and it could have been just rumours that I did not verified on the news because I try not to overwhelm my mind checking on the news to find out which information is correct and which one is not.
3.    I hereby tender the following amended response to the above question: ‘If you did return to Venezuela now, what do you think will happen to you?’
4.    When I left Venezuela, there was already a lot of military in the airport. When I was coming to Australia, I got all my luggage checked by the military. They were all questioning everything while I was just trying to stay calm and explain that I was going to [Country 1] to catch a connection flight to Australia on a student visa, I have demonstrated this to them. I have all my university documents with me in case I might need them here upon arrival. The idea behind all that is to make you lose your flight and if you can’t afford another flight you will need to go back home. Its passive aggression the way they do that. I believe when people are coming back, it’s the same stressful situation around it, again the military checking everything. They can even steal people’s belongings, so if they do have a profile on you which I don’t know if they have one of me or not, maybe they won’t even let you through customs.
5.    It is not possible to know if the Venezuelan authorities have a profile of me now or not. It’s something I don’t want to risk finding out. It’s a really stressful and dangerous situation for me. I am just scared to think about it.
Country information
The Australian Government Department of Home Affairs Common Claims for Venezuela dated 5 November 2021 provides (inter alia) that:
16.1.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.
16.2.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.
16.3.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]
16.4.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]
16.5.State protection
Venezuela is formally a multiparty constitutional republic, but for over a decade political power has been concentrated in a single party with an increasingly authoritarian executive exercising significant control over the legislative, judicial, citizens’, and electoral branches of government.[89]
…No independent government institutions remain to check executive power.[90] The government stripped power from the opposition-led legislature and represses dissent through often-violent crackdowns on street protests, jailing opponents and, in violation of international law, prosecuting more than 840 civilians in military courts.[91] The outgoing PSUV-controlled legislature in late 2015 ‘stacked’ the TSJ with its own appointees, and the ANC subsequently installed over a dozen regime loyalists on the TSJ. High courts generally do not rule against the government.[92] Supreme Court members have publicly rejected the separation of powers principle and have pledged to advance the government’s political agenda, and the Court has consistently upheld abusive practices.[93] In the World Justice Project (WJP) Rule of Law Index 2017–2018, based on surveys of households and experts, Venezuela (in which 1000 respondents were surveyed in 2016) ranked 113th of 113 countries.[94]
[60] ‘The Bolivarian Republic of Venezuela [fact sheet]’, Australian Government Department of Foreign Affairs and Trade (DFAT), [December 2017], [‘updated biannually; June and December’] [document created 14/12/2017], CISEDB50AD8623
[61] '[The World Factbook.] Venezuela', [United States.] Central Intelligence Agency, 'Page last updated on May 08, 2018', at heading ‘Economy:: VENEZUELA’, CIS7B839411036
[62] ‘Freedom in the World 2018. Venezuela Profile’, Freedom House, Accessed 2 February 2018, p.[1], NGED867A64
[63] ‘Unemployment, total (% of total labor force) (modelled ILO estimate)’ n.d., The World Bank, Accessed 29 May 2017, CISEDB50AD4306
[64] '[The World Factbook.] Venezuela', [United States.] Central Intelligence Agency, 'Page last updated on May 08, 2018', at heading ‘Economy:: VENEZUELA’, CIS7B839411036
[65] Amnesty International Report 2020/21. The State of the World’s Human Rights’, Amnesty International, 6 April 2021, pp.390-395 ‘Venezuela’ at 394, 20210407093348; ‘Venezuela: Human rights lose whilst impunity prevails: Amnesty International submission for the UN Universal Periodic Review, 40th session of the UPR working group, January 2022' (AMR 53/4488/2021), Amnesty International, 21 July 2021, p.10 including footnotes 37 & 38, 20210729080757
[66] ‘Human Rights Violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight. Report by the Office of the United Nations High Commissioner for Human Rights', Office of the United Nations High Commissioner for Human Rights (OHCHR), June 2018 [document created 21/6/2018], p.3, CIS7B839411554. Stated as 61 per cent in ‘A Double-Edged Sword. Protection Risks Facing Venezuelan Children During the COVID-19 Pandemic’, World Vision, 2020 [released 28 October 2020], pp.11 & 10, 20201104071650.
[67] ‘Oral Update on the Human Rights Situation in the Bolivarian Republic of Venezuela’, Bachelet M, United Nations High Commissioner for Human Rights, United Nations Human Rights Office of the High Commissioner, 9 September 2019, 20190910132410
[68] 'Amnesty International Report 2020/21. The State of the World’s Human Rights’, Amnesty International, 6 April 2021, pp.390-395 ‘Venezuela’ at 394, 20210407093348; ‘Venezuela: Human rights lose whilst impunity prevails: Amnesty International submission for the UN Universal Periodic Review, 40th session of the UPR working group, January 2022' (AMR 53/4488/2021), Amnesty International, 21 July 2021, p.10 including footnote 35 & p.37 at recommendation 133.223, 20210729080757
[69] ‘A Double-Edged Sword. Protection Risks Facing Venezuelan Children During the COVID-19 Pandemic’, World Vision, 2020 [released 28 October 2020], pp.13 & 10, 20201104071650. Cf. ‘World Vision, a global Christian humanitarian organization, conducted a survey of 420 households in Caracas and the neighboring state of Miranda in August 2020 to determine how the pandemic had affected the risks faced by children. Respondents were those aged 30 and over, of which 71% were women. "The problems that put children at greater risk during the pandemic are associated with food shortages, increased child labor (...) domestic violence and neglect," World Vision said in the study, which was released in November.’: 'Pandemic's hard realities worsen Venezuelan child labor crisis', Ramirez C E & Sequera V, Reuters, Thomson Reuters Foundation, 10 May 2021, 20210519091004
[70] ‘Extreme poverty in Venezuela rises to 76.6% - study’, Reuters, 30 September 2021, 20211027113203; ‘Encovi 2021: Venezuela Is The Poorest Country in Latin America’, Soto N, Caracas Chronicles, 30 September 2021, 20211027115322; ‘Venezuela crisis: Three in four in extreme poverty, study says’, BBC News, 30 September 2021, 20211027124240; ‘AMERICA/VENEZUELA - National survey (ENCOVI): poverty at the highest levels, employment decreases, only 5% of emigrants return’, Agenzia Fides, 1 October 2021, 20211027123245
[71] ‘Venezuela crisis: Three in four in extreme poverty, study says’, BBC News, 30 September 2021, 20211027124240
[72] ‘For poor Venezuelans, a box of food may sway vote for Maduro’, Andreina Aponte & Ana Isabel Martinez, Reuters, 12 March 2018, CXBB8A1DA34199
[73] ‘Watch List 2017‘, International Crisis Group (Brussels: Special Report Nº3, 24 February 2017), p.35, on Refworld website, CISEDB50AD378
[74] ‘Amnesty International Report 2017-18’, Amnesty International, 22 February 2018, pp.393-397 ‘Venezuela’ at p.397, NGED867A612
[75] ‘For poor Venezuelans, a box of food may sway vote for Maduro’, Andreina Aponte & Ana Isabel Martinez, Reuters, 12 March 2018, CXBB8A1DA34199
[76] March 2018, CXBB8A1DA34199 239 'Amnesty International Report 2020/21. The State of the World’s Human Rights’, Amnesty International, 6 April 2021, pp.390-395 ‘Venezuela’ at 394, 20210407093348
[77] ‘More than 16 Million Venezuelans Enrolled in the Carnet de la Patria System’, RNV (Radio Nacional de Venezuela), 2 November 2017, now only accessible on Internet Archive Wayback Machine website, captured 21 February 2018, CXC90406621214; ‘Freedom on the Net 2017 - Venezuela’, Freedom House, 14 November 2017, p.20, NG2A465F5210; ‘Transparency International denounces “Venezuelan apartheid”’, MercoPress, 17 March 2018, CXBB8A1DA26569; ‘Country Reports on Human Rights Practices for 2017 – Venezuela’, United States Department of State. Bureau of Democracy, Human Rights and Labor, 20 April 2018, p.27 Section 3, OGD95BE927489; ‘President Maduro's Likely Re-election in Breadline Venezuela’, Gunson P, International Crisis Group, 17 May 2018, CIS7B839411363.
[78] ‘With low turnout, Venezuela’s election will create what opponents call ‘puppet congress’’, Washington Post, The, 31 July 2017, CXC90406611372; ‘Venezuela's Maduro re-elected amid outcry over vote’, Reuters, 20 May 2018, CXBB8A1DA27642; ‘Poor Venezuelans crowd pro-Maduro stations in hope of vote 'prize'’, Luc Cohen & Francisco Aguilar, Reuters, 21 May 2018, CXBB8A1DA27653; 'Venezuela. Humanitarian crisis. Thematic report - 23 May 2018', ACAPS, 23 May 2018, pp.3 & 8, CIS7B839411184; ‘Maduro's tweeters, activists cash in on Venezuela election win’, Berwick A, Reuters, 26 May 2018, CXBB8A1DA34198.
[79] ‘Carnet de la Patria ha otorgado protección social a más de 250.000 familias venezolanas [Carnet de la Patria has granted social protection to more than 250,000 Venezuelan families]’, AVN [Agencia Venezolana de Noticias], Gobierno del Estado Bolivariano de Yaracuy [Government of the Bolivarian State of Yaracuy], 16 May 2017, CXC90406621223 (Google Translate translation ore%2F14885-Carnet-de-la-Patria-ha-otorgado-proteccin-social-a-ms-de-250000-familias-venezolanas%20)
[80] ‘“Carnet de la patria”: el nuevo racionamiento de comida en Venezuela [“Homeland card”: the new food rationing in Venezuela]’, Avendaño O, Panam Post, 29 December 2016, CIS38A80129134 (Google Translate translation ‘Carnet de la Patria. El apartheid revolucionario’ [Homeland Card. Revolutionary apartheid], Transparencia Venezuela [Transparency Venezuela], undated [2018], [document created 15 March 2018], p.5, CIS7B839419024; ‘Special Report: How ZTE helps Venezuela create China-style social control’, Berwick A, Reuters, 15 November 2018, 20211028102358.
[81] ‘“Carnet de la patria”: el nuevo racionamiento de comida en Venezuela [“Homeland card”: the new food rationing in Venezuela]’, Avendaño O, Panam Post, 29 December 2016, CIS38A80129134 (Google Translate translation ‘Freedom on the Net 2017 - Venezuela’, Freedom House, 14 November 2017, p.20, NG2A465F5210; the reference in footnote ‘147 Yoerli Viloria Diario de Los Andes, “El Carnet de la Patria pone en peligro la privacidad” [The Homeland Card endangers privacy] January 29, 2017, is not accessible
[83] 'Freedom on the Net 2020. Venezuela', Freedom House, [14 October 2020], p.[26] section C5, 20201105094017
[84] '‘Sistema Patria’: a new digital tool for social control in Venezuela', Singer F, El Pais, 24 April 2021, 20210603091407
[85] 'Freedom on the Net 2020. Venezuela', Freedom House, [14 October 2020], p.[27] section C5, 20201105094017
[86] '‘Sistema Patria’: a new digital tool for social control in Venezuela', Singer F, El Pais, 24 April 2021, 20210603091407
[87] 'Freedom on the Net 2020. Venezuela', Freedom House, [14 October 2020], pp.[27] & [26] section C5, 20201105094017
[88] 'General Country of Origin Information Report Venezuela (June 2020)', Netherlands Ministry of Foreign Affairs, 11 June 2020, p.36 including footnote 323, 20200806083533
[89] 'Country Reports on Human Rights Practices for 2019 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 11 March 2020, p.1 Executive Summary, 20200312111107; 'Country Reports on Human Rights Practices for 2020 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.1 Executive Summary, 20210331125015
[90] 'World Report 2020. Events of 2019', Human Rights Watch (HRW), 14 January 2020, pp.625 & 627, 20200115082903. Regarding the judiciary see also ‘Report of the independent international fact-finding mission on the Bolivarian Republic of Venezuela. Advance Unedited Version’ (A/HRC/45/33), Independent international fact-finding mission on the Bolivarian Republic of Venezuela, [United Nations] Human Rights Council, 15 September 2020, p.3 paragraph 17, 20201102104217; 'Detailed findings of the independent international fact finding mission on the Bolivarian Republic of Venezuela (A/HRC/45/CRP.11)', [Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela,], United Nations Human Rights Council, 15 September 2020, p.39-43 paragraphs 148-165, 20200917074633; and 'World Report 2021. Events of 2020', Human Rights Watch, 13 January 2021, pp.732-742 ‘Venezuela’ at 736, 20210114072851.
[91] 'World Report 2020. Events of 2019', Human Rights Watch (HRW), 14 January 2020, pp.625 & 627, 20200115082903; ‘Human Rights Watch World Report 2019’, Human Rights Watch, 17 January 2019, pp.645 & 649, 20190118091502.
[92] 'Freedom in the World 2019 - Venezuela', Freedom House, 5 February 2019, sections ‘Overview’ & F1, 20190218085724. See also 'Freedom in the World 2020 – Venezuela', Freedom House, 4 March 2020, sections ‘Overview’ (p.[2]) & F1 (p.[17]), 20200305095111
[93] 'World Report 2020. Events of 2019', Human Rights Watch (HRW), 14 January 2020, p.629, 20200115082903; 'World Report 2021. Events of 2020', Human Rights Watch, 13 January 2021, pp.732-742 ‘Venezuela’ at 736, 20210114072851 308 ‘World Justice Project Rule of Law Index 2017-2018’, World Justice Project, 31 January 2018, pp.151, 163, 3, 29 & 31, CIS7B83941372
[94] 'Country Reports on Human Rights Practices for 2019 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 11 March 2020, p.1 Executive Summary, 20200312111107; 'Country Reports on Human Rights Practices for 2020 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.1 Executive Summary, 20210331125015

The Human Rights Watch World Report 2023, Venezuela: Events of 2022, provides (inter alia) that:
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.
The Australian Government Department of Foreign Affairs and Trade “do not travel” travel advice overview for Venezuela updated to 6 June 2023 provides (inter alia) that:
Common violent crime includes murder, armed robbery, drive-by shootings, sexual assault and carjackings. Criminals are often armed. Avoid walking in isolated areas, especially at night. Terrorist groups and criminal gangs are active along Venezuela's borders with Colombia, Brazil and Guyana.
Kidnapping is a serious threat. The risk is higher along airport routes and in border regions. Only use official taxis organised through your hotel. Avoid kidnapping hotspots.
Venezuela's political situation is volatile. Demonstrations and protests are common and can turn violent. If you're in an affected area, leave if it's safe to do so.
Shortages of basic goods can result in long line-ups at stores. This can lead to fighting, looting and theft. Be ready to change travel plans. Keep extra supplies of food, water, medicines and other necessities.
CONSIDERATION OF CLAIMS AND EVIDENCE
In considering the applicant’s claims and evidence, the Tribunal has taken account of the:
19.1.Migration and Refugee Division Guidelines on the Assessment of Credibility.
19.2.Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
19.3.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 applicant’s representative 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 applicant’s oral and written evidence credible, consistent and persuasive, and accepts his account of his life and work and what happened to him when he was in Venezuela. The Tribunal does not consider the veracity of any of the applicant’s claims is diminished or negated due to the absence of corroborative documentary evidence.
The Tribunal accepts the applicant’s explanation in his post-hearing statutory declaration of his oral evidence regarding a permit to enter and depart Venezuela.
The Tribunal considers that the applicant demonstrated a deep interest and engagement in Venezuelan politics and public policy through: his completion of academic [qualifications]; his involvement with [Organisation 1] and associated volunteer community development work; his employment with [Employer 1] as a [Job title 1], including working closely with [Mr D], an opponent of President Maduro; and his employment with [Organisation 2].
The Tribunal notes there is a pre-disposition by the Venezuelan government and authorities against organisations or activities associated or aligned with [Country 1].
The Tribunal considers it is possible the applicant is known to the Venezuelan authorities as a result of his involvement with [Organisation 1] and associated volunteer community development work, and his employment with [Organisation 2].
The Tribunal considers it is likely the applicant is known to the Venezuelan authorities as a result of his employment with [Employer 1] as a [Job title 1], including working closely with Maduro opponent, [Mr D].
The Tribunal considers that the applicant was politically active in Venezuela through his participation in many anti-government protests.
The Tribunal considers it is possible the applicant is known to the Venezuelan authorities as a result of his participation in many anti-government protests, including the protest where he was photographed with prominent opposition politician, Machado, and the photograph was posted publicly on social media.
The Tribunal considers it is reasonable for the applicant to suspect that the death of his close friend and fellow protester, [Mr A], was not the result of a random criminal act, rather an attack by the Venezuelan authorities or government affiliates targeted at [Mr A] for his anti-government activities.
The Tribunal considers it is reasonable for the applicant himself to fear targeting and harm by the Venezuelan authorities or government affiliates given his close association with [Mr A] and his suspicions about the cause of [Mr A’s] death, and the number of his university friends he protested with who have been jailed or exiled.
The Tribunal notes the applicant’s luggage was checked by the Venezuelan military when he was departing Venezuela for Australia, and that in response to questioning, he told them he was travelling to [Country 1] to catch a connecting flight to Australia on a student visa.
The Tribunal considers it is unlikely the authorities would have regarded or perceived the applicant’s departure to Australia for study purposes as a threat to the government; meanwhile, the opportunity remained for the authorities to pursue the applicant on his return to Venezuela.
The Tribunal considers it is reasonable that the 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 complete a certificate in [Subject 2] and take a break from the situation he believed faced in Venezuela. The Tribunal further considers it is reasonable that the applicant applied for a protection visa on the expiration of his student visa, albeit inadvertently one day late, having no other visa options and being unable to return to Venezuela.
The Tribunal considers the applicant’s participation in activities against the Venezuelan government after his arrival in Australia consistent with the applicant’s activities in Venezuela, in particular participating in many anti-government protests, and not conduct engaged in by the 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 that if the applicant returns to Venezuela, given his opposition to the Venezuelan government, it is likely he would participate in anti-government protests as he did in the past, and otherwise engage in anti-government activities. The Tribunal further considers that if the applicant did not so, it would be due to his fear of targeting and harm by the Venezuelan authorities or government affiliates.
The Tribunal notes the email submission by the representative dated 25 May 2021. The Tribunal considers that the claim, based on cited country information, that high-level regime officials stigmatised returning citizens, blaming them for rising COVID-19 cases and calling them “bioterrorists” and “biological weapons” can no longer be sustained given that the pandemic crisis has now passed and there is no current country information to support the claim.
The Tribunal does not consider that the evidence before the Tribunal and the country information support the representative’s submission that the applicant is a target of persecution for the reason that he was a member of particular social groups, being ‘young men’ and ‘resident of Caracas’.
The Tribunal considers that if the applicant returns to Venezuela, there is a real or substantial chance on his arrival or within the reasonably foreseeable future that:
41.1.The applicant would be investigated by the Venezuelan authorities or government affiliates about his protest activities and employment in Venezuela, and the circumstances of his departure and return, based on the applicant being regarded or perceived to be anti-government.
41.2.The applicant would be arrested and detained for an extended period with or without charge, deprived of his liberty, surveilled, subjected to mistreatment and torture during detention, face criminal proceedings, and denied a fair trial.
The Tribunal considers that if the primary applicant returns to Venezuela, there would be no effective protection available to him from the Venezuelan authorities or government affiliates 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 or government affiliates 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 or government affiliates as his vulnerability to targeting and harm relates to his previous protest activities and employment in Venezuela and his ongoing intention to engage in anti-government activities.
Application of law
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
46.1.The applicant is a citizen of Venezuela and non-citizen in Australia.
46.2.The applicant fears being persecuted in Venezuela for the essential and significant reason of political opinion, being regarded or perceived by Venezuelan authorities or government affiliates to be anti-government.
46.3.There is a real chance that, if the applicant returns to Venezuela, he would be persecuted for that reason.
46.4.The persecution would involve serious harm.
46.5.The real chance of persecution relates to all areas of Venezuela.
46.6.There are no effective protection measures available to the applicant in Venezuela.
46.7.The applicant could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Venezuela.
46.8.The applicant has a well-founded fear of persecution as defined in s 5J of the Act.
46.9.The applicant is outside Venezuela, his country of nationality, and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself of the protection of Venezuela.
46.10.The applicant is a refugee as defined by s 5H(1)(a) of the Act.
CONCLUSION
The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B).
Relevant extracts from Migration Act 1958
5 (1) Interpretation
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
36     Protection visas – criteria provided for by this Act
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

[2023] AATA 3555

15 August 2023

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