1934082 (Refugee)

[2023] AATA 3714

1934082 (Refugee) [2023] AATA 3714 (21 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

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

APPLICANTS’ REPRESENTATIVE:        Unrepresented

CASE NUMBER:  1934082

COUNTRY OF REFERENCE:                   Venezuela

MEMBER:Kate Chapple

DATE:21 August 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the primary applicant satisfies s 36(2)(a) of the Act and the secondary applicants satisfy s 36(2)(b) of the Act

Statement made on 21 August 2023 at 1:19pm

CATCHWORDS
REFUGEE – protection visa – Venezuela – political opinion – public sector employee ideologically opposed to government – witnessed and reported corrupt action by staff and paramilitary members – harassed and threatened by managers, government supporters and paramilitary groups, and denied relevant protection – resigned and lived in third country – return, relocation and second departure unhindered – participation in political opposition activities in Australia – sister and parents living in fourth country and house appropriated – credible claims and evidence not diminished by absence of corroboration or documentation – probable official records of employment and reports in home country – country information – members of family unit – wife’s health condition and treatment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J, 36(2)(a), (b), 65
Migration Regulations 1994

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

EVIDENCE BEFORE THE TRIBUNAL

Protection visa application

1. Protection visa application lodged 4 December 2018.

2. The primary applicant’s claims set out in the protection visa application (spelling and grammatical errors not corrected):

   [reason primary applicant left Venezuela] I was employed by [Employer 1], an office under [Public sector entity 1], in the role of [Occupation]. At the end of November 2015, I was assigned to [Employer 1]. One day, while I was at the car park of my workplace, I witnessed a deviation of' resources and materials by an armed group of government supporters as well as by stall from that program. From that moment on, I was politically persecuted, because I would not be a party to corruption and because I had a different ideology from that of the current Government, thus my life, well-being and freedom were at high risk, therefore due to fear and uncertainty, I resigned and I was forced to leave my Country, I legally entered to [Country 1] and stayed there for 6 months approximately. Upon returning to my country, the Government classified me as an enemy. I was persecuted by Government-supporting groups as well as employees from my former workplace, who through calls, and messages were constantly threatening me. I was targeted, threatened, intimidated, abused, stalked, and harassed by members of the Government, Paramilitary Groups, such as the Tupamaros, Colectivos and Comunas, National Bolivarian Intelligence Services (SEBIN), Bolivarian National Guard), Police and the Army. Their work is to assault, harm, intimidate, harass, kill, stalk, kidnap, torture Political Dissidents. I was verbally and physically assaulted and abused by them. I lodged 2 formal complaints to [Public sector entity 2] - Bolivarian Government of Venezuela on [date]/09/2016 and [date]/12/20151but nothing was done to protect me.

   [primary applicant thinks this will happen to him if he returns to Venezuela] Since 1998, when Hugo Chavez became the President of Venezuela, a Dictatorship commenced and is getting worse under the actual President Nicolas Maduro. I totally disagree with the dictatorship. Always, I have made public my disagreement with the Venezuelan Government under Chavez and Maduro dictatorships. Due to my previous involvements, complaints, and records in protests against the dictatorship, I have been listed as an enemy of regime, under this classification they can arbitrary arrest me. I will be held in any of the infamous underground prisons overseen by intelligence police known as the 'tombs', consisting of small windowless isolation cells where political prisoners/dissidents are subject to cold temperatures and constant blinding white light and "El Helicoide", the headquarters of Venezuelan Secret Service (SEBIN). The charges are the usual kit-tailor-made for dissidents a selection of treason, illicit association to commit crime, conspiracy, terrorism, and illegal possession of military weaponry. In addition, they know that I fled to Australia, if I return to Venezuela there is no doubt that I will be arrested in the Airport with my wife and child and send to any of the above-mentioned prisons. Furthermore, on early October 2018, the Venezuelan Government created a new Migratory Police Force to control its seventy two (72) border stations, the new Migratory Police Corps form part of the National Bolivarian Police Force and is deployed at all of the country's border checkpoints, ports and airports.

   Based on all above-mentioned, is likely that I, my wife and my child will be arrested or captured in any border checking points, and charged with any or all of the usual kit-tailor-made for dissidents, held in the 'tomb' or 'El Helicoide'. We will be subject to torture, rape, imprisonment for life or murdered. There is no doubt that all the above-mentioned unlawful, draconian and arbitrary punishment will happen to us if we return to Venezuela. There is sufficient evidence to satisfy the requirement of well-founded fear under the 1951 Refugee Convention and the Migration Act 1958.

   [harm experienced by primary applicant in Venezuela] Due to the systematic political persecution, I have experienced serious psychological harm, causing me Post-Traumatic Stress Disorder (PTSD). In Venezuela, there is no freedom of expression, and/or assembly. There is an excessive use of force by security agents. a systematic and widespread use of excessive force pointing to a pattern of violent raids and torture and other ill-treatment of detainees, arbitrary arrest and detentions for political reasons through the implementation of various unlawful mechanisms. These mechanisms included the use of military justice, arrests without warrant, and the use of ambiguous and discretionary criminal definitions, among others, that demonstrated a much broader pattern of efforts to silence dissidents. After the arrest, people suffer torture, ill-treatment, including kicking, beating, and sexual violence, locked in a noxious smelling rooms, handcuffed for long period of time and sometimes keep incommunicado, conditions that constitute cruel treatment. The Justice System continued to be subject to Government interference, especially in cases involving people critical of the Government or those who are considered to be acting against the interests of the authorities. SEBIN continued to ignore Court decisions to transfer and release people in its custody, enforced disappearances are also common.

   [help sought by primary applicant] I asked for help to the relevant authorities and/or services such as Police, Hospitals, Clinics, Doctors, Psychologists, Psychiatrists, etc., I was denied the right treatment to overcome my psychological harm caused by the systematic political persecution. In addition, Police and relevant authorities refused to investigate my complaints against the government and its militant supporters. Victims of Political Persecution are unable to obtain any help. (Further details, information and evidence will be provided in my Statutory Declaration and Submission).

   [attempt by primary applicant to move elsewhere in Venezuela] I tried to move to another parts of the Country to seek safety, and I found that there is no safe place in Venezuela for Political Dissidents. There is a heavy presence of different security forces such as the Secret Service (SEBIN). National Guard, Army, Police and armed para-military or pro-government groups known as Colectivos in Caracas and its 13 States - Anzoategui, Aragua, Carabobo, Barinas, Lara. Miranda, Monagas, Sucre, Tachira, Vargas, Zulia, and anywhere in Venezuela. Due to this, it is impossible for political Dissidents to seek safety inside Venezuela. The political Persecution for political dissidents is Country -wide. There is no safe place for me in Venezuela. (Further information, details and evidence will be provided in my Statutory Declaration and Submission).

   [primary applicant thinks he will be harmed or mistreated if he returns to Venezuela] There is no doubt that I will be harmed and/or mistreated by the Venezuelan Government and its different security forces such as the National Bolivarian Intelligence Service I [Secret Police] (SEBIN), Bolivarian National Guard (BNG), Migratory Police, Army, Police Force, Death Squads, and armed para-military or pro-government groups, known as Colectivos, Tupamaros, and Comunas. They will harm and/or mistreat me, simply because I am a political Dissident, blacklisted as a traitor inciting treason.

   I will be arbitrary arrested, captured or kidnapped and charged with the usual kit tailored-made for dissidents such as selection of treason, illicit association to commit crime, conspiracy, terrorism, and illegal possession of military weaponry. I will be held captive in any of the infamous underground prisons overseen by secret police, known as the tomb or 'El Helicoide' where all political dissidents are held in a small, windowless, isolation cells, then, I will be subjected to torture involving electric shocks, rape, asphyxiation, severe beating, cold temperatures, and constant blinding white light, etc., until they obtain my confession. It is likely that I will not survive torture, and if I survive, I will be sentenced for life in prison. Based on all above-mentioned. I cannot return to Venezuela, I will be harmed, mistreated, tortured, murdered, or sentenced with imprisonment for life by the Venezuelan Government. I have a well-founded fear of harm if I return to Venezuela.

   [reason primary applicant thinks the Venezuelan authorities will not protect him] No, the Venezuelan Government and Authorities cannot and will not protect me, my wife and child. it' I/we go back. They will arbitrarily arrest me. Once detained, I will be subjected to psychological and physical abuses ranging from mock executions, severe beatings to torture involving electric shocks, asphyxiation, rape, and other techniques applied government agents against political prisoners/dissidents. (Further information, details and evidence will be provided in my Statutory Declaration and Submission).

   [reason primary applicant thinks he would not be able to relocate within Venezuela] I am unable to relocate within Venezuela to an area where I would not be banned for the following reasons: the Government, SEBIN, National Guard, Police Force, Army, Migratory Police, and armed para-military or pro-government groups are present and control all areas within Venezuela. There is no place or area safe for me, my wife and my child or any other political dissident to relocate within Venezuela. There is no doubt that I will be harmed by them (Further information, details and evidence will be provided in my Statutory Declaration and Submission).

3. Spanish and English translation of System Report dated [December] 2015 relating to a complaint made by the primary applicant, signed by an officer of [a Section] within the Bolivarian Government of Venezuela [Public sector entity 2].

4. Spanish and English translation of System Report dated [September] 2016 relating to a complaint made by the primary applicant, signed by an officer of the [Section] within the Bolivarian Government of Venezuela [Public sector entity 2].

5. Primary applicant’s statutory declaration dated 30 May 2019 (inter alia) as follows:

   My reasons for claiming Protection under the 1951 Convention Relating to the Status of Refugees (the Convention) and the Migration Act 1958 (the Act) are based on the following:

   3.I am seeking protection in Australia so that we do not have to return to Venezuela.

   4.In the mid-March of 2015, I started working at [Employer 1]. Organ belonging to [Public sector entity 1] of Venezuela. In which I occupied the position of [Occupation] in [Section] for about 10 months.

   5.While in this work I was a victim of labour harassment for having a political ideology different from that of the current government's political party.

   6.Honestly, I did not quit my job because in my country to qualify for these jobs or professionals, you need to have work experience. Requirement that this company was not asking me, and the salary was attractive. I also had certain benefits like personal insurance for myself and my family, at the time I consider it an opportunity that could not be missed.

   7.[Employer 1] is an entity assigned to [Public sector agency 1], in Venezuela its work is to [provide materials to users].

   8.It was at the end of November of 2015, when I was assigned to an event where all necessary supplies would be given to a [user] to begin with the [Employer’s program]. There, I see an act of corruption on the part of an armed group called [Group] and staff of [Employer 1], the [materials] and supplies were being diverted.

   9.Members of [Group] realized that I saw them, they faced me with death threats if I ever said anything about what happened. Threats that ever became more constant in which I was very afraid. I feared for my physical integrity, for my life and I decide despite the fear to denounce these acts towards my person to the police. It was several days before I could not bear the harassment, threats, stalking, intimidation, etc., seeing that, I made the decision to quit.

   10.But the fear and uncertainty that anything could happen to me, led me to make the decision to leave for short time Venezuela, expecting things to calm down, I made a trip to [Country 1], a trip that was not in my plans, because my interests always have been in my country, but it was the only solution I had at the time. A trip that would last approximately two months became one of almost 6 months, without hopes that on my return things would change for good.

   11.When I returned to Venezuela, I was afraid that more threats could occur, although I was going to be a short time in the country, however the threats soon arrived, and I was forced to practically not leave the house. For this reason and to leave testimony of any damage they could do to me, I decided to trust the police agencies again and make another complaint for the death threats, although I knew that I would not receive protection from the police entities because they cooperate with paramilitary and criminal groups.

   12.I had to think of an option where I would grow professionally and that is why I decided to come to Australia to study English. After being here for a year, my partner and I decided to renew for two more years in the hope that the presidential election in May of 2018 would achieve the change of government, unfortunately, it wasn’t.

   13.My life, my freedom, and security are in danger, there is no doubt that I will be arbitrary arrested, tortured and imprisoned by the Regime. Finding myself in this situation and thinking about the danger that my family and my person can face if we return to Venezuela, we decided to apply for a protection visa. We are confident that Australia is a free and democratic country and signatory of the 1951 Convention Relating to the Status of Refugees.

   14.Since 1998, when Hugo Chavez became President of Venezuela, a Dictatorship commenced and is getting worse under the actual President Nicolas Maduro, I totally disagree with the dictatorship. Always, I have made public my disagreement with the Venezuelan Government under Chavez and Maduro dictatorship.

   15.Paramilitary groups such as the Tupamaros, Colectivos, Comunas, National Bolivarian Intelligence Services (SEBIN), Bolivarian National Guard (BNG) Police and the Army, constantly are threatening, intimidating, abusing, stalking, harassing, etc., political dissidents, their work is to physically and psychologically assault, harm, intimidate harass, stalk political opponents. They kill, kidnap, torture, rape political dissidents and their families.

   16.There is no doubt that I will be arbitrary arrested. I will be held in any of the infamous underground prisons overseen by intelligence police, known as 'the tombs', consisting of small windowless isolation cells where political prisoners/ dissidents are subject to cold temperatures and constant blinding white light, and "El Helicoide", the headquarters of the Venezuelan Secret Service (SEBIN).

   17.The charges are the usual kit-tailor-made for dissidents, a selection of treason, illicit association to commit crime, conspiracy, terrorism, and illegal possession of military weaponry. If I return to Venezuela, it is likely that I will be arrested in the Airport, with my wife and child, and send to any of the above-mentioned prisons. Dissidents held in the "Tombs" or "El Helicoide" are subjected to torture, rape, imprisonment for life, or murdered.

   18.Furthermore, on early October 2018, the Venezuelan Government created a new Migratory Police Force to control its seventy two (72) border stations, the new Migratory Police Corps form part of the National Bolivarian Police Force and is deployed at all of the country's border checkpoints, ports, and airports.

   19.In Venezuela, there is no freedom of expression, and/or assembly. There is an excessive, widespread and systematic use of force by security agents, pointing out to a pattern of violent raids, torture and other ill-treatment of detainees, arbitrary arrest and detentions for political reasons through the implementation of various unlawful mechanisms.

   20.These mechanisms include the use of military justice, arrests without warrants, and the use of ambiguous and discretionary criminal definitions, among others, that demonstrated a much broader pattern of efforts to silent dissidents.

   21.After the arrest, people suffer torture, ill-treatment, including kicking, beating and sexual violence, locked in a noxious and smelling rooms, handcuffed, for long periods of time and sometimes keep incommunicado, conditions that constitutes cruel treatment.

   22.The Justice System continued to be subject to Government interference, especially in cases involving people critical to the Government or those who are considered to be acting against the interests of the authorities. SEBIN continued to ignore Court decisions to transfer and release people in its custody, enforced disappearances are also, common.

   23.I asked for help to the relevant authorities, I was denied the right protection to the systematic political persecution and discrimination, Police and relevant authorities refused to investigate my complaints against the Government and its militant supporters. Victims of political persecution, and victimisation, are unable to obtain any help.

   24.I tried to move to another part of the Country to seek safety, and I found that there is no safe place in Venezuela for Political Dissidents. There is a heavy presence of different security forces such as the Secret Service (SEBIN), National Guard, Army, Police and armed para-military or pro-government groups known as Colectivos, in Caracas and its 13 States - Anzoategui, Aragua, Carabobo, Barinas, Lara, Miranda, Monagas, Sucre, Tachira, Vargas, Zulia, and anywhere.

   25.Due to this, it is impossible for Political Dissidents to seek safety inside the Country, the Political Persecution is Country-wide. There is no safe place for me and my family in Venezuela.

   26.It is likely that, we will be harmed and/or mistreated by the Venezuelan Government and its different security/repressive forces. We will be subject to torture, involving electric shocks, rape, asphyxiation, severe beating, cold temperatures, constant blinding white light, and mock executions, etc., until they obtain a confession. We will not survive cruel torture, and if we survive, we will be sentenced for life in prison.

   27.We cannot return to Venezuela, we will be harmed, mistreated, tortured, murdered, or sentenced to imprisonment for life by the Venezuelan Government. We have a well-founded fear of harm if we return to Venezuela.

   28.There is no doubt that all the above-mentioned unlawful, arbitrary and draconian punishment will happen to us if, we return to Venezuela. There is sufficient, and credible evidence before the Department to satisfy the requirements of well-founded fear of harm under the 1951 Refugee Convention, the Migration Act 1958, and Migration Regulations 1994.

   29.I am aware that Australia has a long and rich history of immigration and is a member of the United Nations Human Rights Council and has ratified at least ten (10) international treaties.

1. Venezuela country information.

2. Academic literature on migration and refugee law.

3. Other departmental records:

   8.1.Decision record relating to the delegate’s refusal decision.

   8.2.Interview audio file.

   8.3.Case file.

   8.4.Internal records relating to the applicants.

   Application for review

4. Application for review lodged with the Tribunal on 2 December 2019.

5. The Tribunal wrote to the applicant’s representative inviting the applicant to attend a hearing on 17 August 2023 and to provide pre-hearing submissions.

6. Prior to the hearing, the primary applicant provided to the Tribunal:

   11.1.Confirmation that the primary applicant and his wife intended to participate in the hearing with the assistance of an interpreter.

   11.2.Spanish and English translation of confirmation of the primary applicant’s employment with [Employer] within [Public sector entity 1].

   11.3.Letter from a senior medical officer at [Hospital] dated 31 July 2023 regarding the primary applicant’s wife’s medical condition.

   11.4.Statement (undated) by the primary applicant regarding the risks associated with his wife’s medical condition and related photographs.

   11.5.Personal reference dated 3 August 2023 from the primary applicant’s employer.

   11.6.Personal reference dated 4 August 2023 from the applicants’ property manager.

   11.7.Personal reference dated 3 August 2023 from an early learning provider regarding the primary applicant.

   11.8.Submission signed by the applicants’ recipient/support person addressing legislative requirements and case law and attaching country information, submitted to the Tribunal on 9 August 2023.

   The Hearing

7. The primary applicant and his wife appeared before the Tribunal at a hearing conducted in person on 17 August 2023, with the assistance of an interpreter (in person) in the Spanish and English languages, and in the presence of a support person whose name was provided.

8. The primary applicant advised the Tribunal that he would give evidence regarding the protection visa application, and his wife would give evidence about her medical condition.

9. The primary applicant gave evidence, summarised by the Tribunal as follows:

   14.1.The primary applicant was born in [Year] in Caracas and grew up there with his parents and [sister]. His father was [an Occupation 2] and his mother, [an Occupation 3]. His parents and sister and her family sent to live in [Country 2] sometime after the primary applicant came to Australia. His sister is [an Occupation 4] there. He also has two half sisters who live in Venezuela; he doesn’t know much about them, however he thinks one is [an Occupation 5] and the other [an Occupation 4].

   14.2.The primary applicant completed his three-year [Subject] qualifications at university in Venezuela in [Year]. This included completing an internship with the Venezuelan government’s [Public sector entity 3], which was designed to prepare students for the workforce. 

   14.3.The primary applicant was totally against the socialist system in Venezuela and had a group of friends who shared his views. He did not make his views obvious at university however as he knew he had to be careful because the university supported the government. He wanted to do his internship with the government and complete his qualifications and not get involved in anything that would cause difficulties for himself.

   14.4.Once qualified, the primary applicant applied for many jobs as [an Occupation 1], however was unsuccessful. Over a period of 15 months the primary applicant helped with his father’s work from time to time. In March 2015, he began working at [Employer 1] (part of [Public sector entity 1]) as [an Occupation 1]. He had been recommended as a result of the work he did during his internship. His interview for the job was straightforward; they didn’t ask him about his political views, he guessed they assumed he was a government supporter. The [Employer]’s function was to provide [materials] to [users] to meet [end users’] needs and supply [equipment] to the paid [employees]. The primary applicant’s job was to [deleted]. He was also required to participate in activities associated with the allocation and delivery of items to [users]. He was at a junior level as this was his first job after getting his qualifications. He had a number of superiors or managers who he reported to weekly.

   14.5.On one occasion, trucks had arrived at the workplace to collect goods to be delivered to [users]. The primary applicant’s job was to oversee the allocation of goods to trucks to ensure the right goods went to the right [users]. He observed in one of the trucks two of his managers and another person in recognisable paramilitary gear holding a firearm redirecting goods to a truck that was clearly not the usual [delivery truck]. As he tried to get a better look, the paramilitary member, in the presence of a manager, confronted him and told him to keep quiet or things would be very difficult for him. He interpreted this as a threat as he knows the paramilitary are very dangerous. At that point, he left the truck area and returned to his own work area. He was very afraid and didn’t feel he was able to report the incident to any of his superiors because he suspected they may have been implicated in the corrupt activity.

   14.6.After the weekend that followed, the primary applicant returned to work despite still feeling afraid. Days later, he can’t remember exactly when, the two managers he saw on the truck approached him and told him he could never say anything about the incident he had witnessed; if he did, they would say he was implicated and have him jailed on the basis that it was his job to supervise the allocation of goods to trucks, and if goods went missing, then it was his responsibility. The primary applicant felt powerless to do anything, so he decided to leave his job without explanation and never return.

   14.7.The primary applicant struggled with what to do after the incident and the threats from the paramilitary member and his managers. He discussed it with his family and decided that he should report it to police. His father accompanied him to the police station [in] December 2015 where an officer interviewed him and took a statement. They handed him a copy of the complaint before he left (the translated version of which has been provided to the Tribunal). The primary applicant recalled the officer saying they’ll see what they could do, however he felt they were going through the motions and not serious about pursuing the matter. He didn’t hear from the police again.

   14.8.Later in December, when the primary applicant was out collecting his wife from her work at a private [company], three paramilitary members came to the house they lived with his parents, sister and family. His father told him they were aggressive, saying they were looking for him, and repeatedly asking his whereabouts.

   14.9.The primary applicant needed to get away from Venezuela for a time to see if things calmed down. He decided to go to [Country 1]; he had a 6 month visitor visa. His intention was to hide there for one to two months, initially with a friend then with a woman who was like an aunty to him, however he did not tell them the reason for his visit. His wife stayed in Venezuela with his family. In fact, he stayed in [Country 1] for nearly six months until just before his visitor visa expired. They were terrible months, he was very depressed. He didn’t know about applying for asylum, so didn’t make an application while in [Country 1].

   14.10.While the primary applicant was in [Country 1], about a month after he’d left Venezuela, the paramilitary members returned to his family’s home and did the same as they had done previously. This is what prompted him to stay longer in [Country 1] than intended because his father told him it was too dangerous to return.

   14.11.The primary applicant returned to Venezuela in June 2016. He hadn’t experienced any problems at the airport leaving or entering Venezuela. On an occasion during July 2016, the primary applicant was at home with his family when the paramilitary members visited again. He stayed hiding in the bedroom. They were yelling and aggressive, demanding to know his whereabouts. His father told them to calm down as there were small children in the house. They made so much noise that the neighbours came over to see what was going on, which prompted the paramilitary members to leave.

   14.12.The primary applicant and his wife decided they must leave Venezuela. They relocated to [a small town] three to four hours’ drive away from Caracas where they hid for a month and made arrangements to come to Australia on student visas to study English for a year. They were able to get their flight tickets through IOM who funded half their fares.

   14.13.The primary applicant and his wife returned to Caracas for a couple of weeks before they were due to fly to Australia. On 8 September 2016, only days before their departure, the primary applicant made a further complaint to police about the multiple occasions of harassment and threats to his family by the paramilitary members. He was very scared and didn’t know what else to do. He wanted some protection for his family after he left. Again, the officer said they would act, however the primary applicant could tell they weren’t interested. At the time, he didn’t think about the possible repercussions of going to the police, however in hindsight, he believes he may have drawn attention to himself and his family may bear the consequences.

   14.14.Around six months after their arrival in Australia, the paramilitary members visited the family home again. At that point, the primary applicant’s sister decided she couldn’t stay in Venezuela any longer. From his earnings in Australia, the primary applicant paid for his sister and her family to go to [Country 2] in the second half of 2017. The following year, he paid for his parents to relocate to [Country 2] and join his sister and family. There had been no further incidents with the paramilitary, however his parents’ fears were such that they could no longer stay in Venezuela.

   14.15.Around a month after the primary applicant’s parents left Venezuela, their neighbours told them that people from the socialist party forced the doors and took over the empty house. This is something that is common in Venezuela, they don’t care about who has ownership of the property, and it is a practice that’s allowed by the government. There is nothing owners can do to prevent it or retrieve their property. The primary applicant told the Tribunal he had not previously mentioned this in his application material.

   14.16.Since being in Australia, the primary applicant has participated in a number of activities opposing the Venezuelan government, including the referendum vote, the demonstration in Brisbane, and raising money to send back to Venezuelans in need of support. He has never been active on social media; he’s quite reserved, and after all that’s happened, he feels like he doesn’t want people to see him.

   14.17.The primary applicant believes that if he returns to Venezuela, he can’t hide anywhere, there’s no family there to protect him, and the paramilitary/authorities will find him and kill him. When he reported the incidents to police, he also became someone of interest to the police. It’s not safe for him to live anywhere in Venezuela.

10. The primary applicant’s wife gave evidence, summarised by the Tribunal as follows:

    15.1.In August 2019, she developed a medical condition [which] causes intense [Symptoms] in several parts of the body, it can also affect internal organs, and most seriously, breathing, and is exacerbated by [stress]. Doctors don’t know the cause of the condition, however they think it is possibly triggered by stress.

    15.2.It is not a well known condition and it took her sometime to access the right treatment. She is under the ongoing care of doctors at [Hospital]. The medication is administered by two injections per month, which she has learned to do herself. The treatment has brought the condition under control, however she still has bad episodes. Without the treatment, the symptoms are constant and life threatening. She discovered this when she lost access to Medicare for a time and couldn’t receive the treatment, and her symptoms worsened.

    15.3.She believes the treatment would not be available in Venezuela, and if she returned there, her life would be at risk.

    15.4.Only her mother remains in Venezuela; her sisters left to live in [Country 2]. Her mother is a nervous person who lives alone, she has tried to keep her away from their difficulties.

11. The Tribunal gave the primary applicant one week to provide translations of news articles relating to Venezuelan authorities taking possession of homes left vacant by owners.

    Post-hearing submissions

12. The primary applicant provided to the Tribunal an English translation of January 2021 article published in online Spanish-language newspaper, Infobae, reporting on an interview with the coordinator of Front in Defence of the North of Caracas regarding the practice by leftist paramilitary groups, and encouraged by the Venezuelan authorities, of confiscating assets and land not in use due to their owners not being in Venezuela.

    Country information

13. The Australian Government Department of Home Affairs Common Claims for Venezuela dated 5 November 2021 provides (inter alia) that:

    18.1.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.

    18.2.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]

    [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

    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.

    [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.

    18.3.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]

    18.4.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]

    18.5.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

1. The United Nations Human Rights Office of the High Commissioner press release dated 20 September 2022 provides (inter alia) that:

   Targeted repression by State intelligence agencies

   In its past reporting, the Mission had highlighted the roles of the two State military and civilian intelligence services — respectively, the Directorate General of Military Counterintelligence (DGCIM) and the Bolivarian National Intelligence Service (SEBIN)— in committing human rights violations since 2014, in the context of targeting real or perceived Government opponents. The Mission determined that some of these violations amount to crimes against humanity.

   The current report provides a more detailed understanding of the role of individuals at different levels in the chains of command of both agencies in the implementation of a plan orchestrated by President Nicolas Maduro and other high-level individuals to suppress opposition to the Government, including through the commission of extremely grave acts of torture amounting to crimes against humanity.

   The Mission has documented 122 cases of victims who were detained by DGCIM, 77 of whom were subjected to torture, sexual violence and/or other cruel, inhuman, or degrading treatment. Torture was carried out in its Boleíta headquarters in Caracas and in a network of covert detention centres across the country.

   SEBIN has tortured or otherwise ill-treated detainees - including opposition politicians, journalists, protesters, and human rights defenders - mainly in the El Helicoide detention centre in Caracas. The Mission has investigated at least 51 cases since 2014. The report details how orders were given by individuals at the highest political levels to lower-ranking officials. Both SEBIN and DGCIM made extensive use of sexual and gender-based violence to torture and humiliate its detainees.

   The Venezuelan authorities have failed to hold perpetrators to account and provide reparations to victims in a context where judicial reforms announced from 2021 have failed to address the justice system´s lack of independence and impartiality. Violations and crimes by SEBIN and DGCIM continue to this day. The same structures, dynamics and practices remain in place, while relevant officials continue to work for the agencies, and in some cases have even been promoted. The Mission's analysis furthermore details how these efforts were put into action by President Maduro and other high-level authorities as part of a deliberate plan by the Government to suppress criticism and opposition.

   “The human rights violations by State intelligence agencies, orchestrated at the highest political levels, have taken place in a climate of almost complete impunity. The international community must do everything to ensure that victims’ rights to justice and reparations are guaranteed,” said Francisco Cox, Member of the FFMV Mission.

2. The Human Rights Watch World Report 2023, Venezuela: Events of 2022, provides (inter alia) that:

   20.1.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.

   20.2.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.

   20.3.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.

   20.4.Judicial Independence, Impunity for Abuses

   The judiciary stopped functioning as an independent branch of government in 2004.

   There has been no meaningful justice for crimes committed with knowledge or acquiescence of high-level authorities.

   Judicial authorities have been complicit in abuses, the FFM reported in 2021, including by issuing retrospective warrants for illegal arrests, ordering pre-trial detention routinely, upholding detentions based on flimsy evidence, and failing to protect victims of torture.

   Venezuela’s National Assembly, controlled by supporters of Nicolás Maduro, revised the Organic Law of the Supreme Court of Justice in January, requiring an entirely new Supreme Court, which plays a critical role in appointing and removing lower court judges, of 20 justices—down from 32. The selection process, was not independent. Although Venezuela’s constitution allows only one 12-year term, justices who had failed to act as a check on executive power were reappointed for longer.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. In considering the primary applicant’s claims and evidence, the Tribunal has taken account of the:

   21.1.Migration and Refugee Division Guidelines on the Assessment of Credibility.

   21.2.Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.

   21.3.Relevant country information set out in this decision record.

4. 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.

5. The Tribunal notes the country information submitted by the primary applicant is consistent with and adds to the country information set out by the Tribunal in this decision record.

6. 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.

7. 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.

8. The Tribunal considers the primary applicant’s oral and written evidence credible overall and accepts his account of what happened to him when he was in Venezuela, and the experiences of his family in Venezuela before and after he left. 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.

9. The Tribunal accepts the evidence of the primary applicant’s wife regarding her medical condition.

10. The Tribunal notes the primary applicant’s oral evidence that while he was totally opposed to the governing regime in Venezuela, he was careful not to make his views obvious and cause difficulties for himself as his focus was to complete his qualifications. The Tribunal therefore considers that the primary applicant was not politically active in opposing the government while in Venezuela and is unlikely to have been considered as such by the Venezuelan authorities.

11. Given that the primary applicant worked for the Venezuelan government firstly as an intern with [Public sector entity 3] and then as [an Occupation 1] with [Employer 1], it is likely there are records of his personal particulars and employment held by the Venezuelan government.

12. The Tribunal considers it is likely the primary applicant witnessed an act of corruption by superiors in his government workplace and a paramilitary member when he observed goods to be supplied to [users] being redirected away from a [delivery truck] (“the incident”).

13. The Tribunal considers the threats to the primary applicant on two separate occasions by the paramilitary member and two of his superiors following the incident strongly suggest that he was regarded as a threat to the corrupt activities for his potential to expose what he witnessed, and for that reason, if necessary, he would be framed by his superiors as the perpetrator of the corrupt activities and, as a consequence, perceived to be against the Venezuelan government.

14. The Tribunal considers it is reasonable the primary applicant did not report the incident to any other of his superiors for fear that they were also complicit in the corrupt activities and he would thereby expose himself to further threats and/or harm.

15. The Tribunal considers the primary applicant leaving his government employment without explanation or resignation is likely to have been regarded suspiciously and adversely by his superiors, the paramilitary member and others involved in the corrupt activities, and exposed him to a higher risk of further threats and/or harm.

16. The Tribunal considers it is possible the primary applicant’s government employment records indicate that he was the perpetrator of the corrupt activities and this was the reason for his departure.

17. The Tribunal considers the primary applicant reported the incident and threats to police genuinely fearing further threats and/or harm to himself, naively believing they could afford him some protection, and not otherwise knowing what to do.

18. The Tribunal considers the primary applicant inadvertently exposed himself to a higher risk of further threats and/or harm from paramilitary members by reporting the incident and threats to police and having a complaint formally recorded in his name. Based on country information documenting the role of police and paramilitary in executing the Venezuelan government’s policies and the prevalence of corruption in government, the Tribunal further considers it is possible the police have communicated the substance of the primary applicant’s complaint to the paramilitary member and/or superiors involved in the incident.

19. The Tribunal considers it is unlikely the police acted on the primary applicant’s complaint.

20. The Tribunal considers the four occasions following the incident that paramilitary members visited the primary applicant’s family home and aggressively questioned his father as to his whereabouts (“the paramilitary visits”)—before he went to [Country 1], while he was in [Country 1], on his return, and after his arrival in Australia—strongly suggest that he was regarded as an ongoing threat to the corrupt activities for his potential to expose what he witnessed, and for that reason, if necessary, he would be framed by his superiors as the perpetrator of the corrupt activities and, as a consequence, perceived to be against the Venezuelan government.

21. The Tribunal considers the primary applicant went to [Country 1] for nearly six months because he genuinely feared further threats and/or harm to himself from paramilitary members, and he returned to Venezuela because his visitor visa was about to expire and he was not aware of his rights to apply for asylum in [Country 1].

22. The Tribunal considers the primary applicant relocated with his wife from Caracas to [the small town] some three to four hours’ drive away seeking to protect himself from further threats and/or harm from paramilitary members while they made arrangements to come to Australia.

23. The Tribunal considers the primary applicant reported the paramilitary visits to police in an effort to protect his family from threats and/or harm from paramilitary members after he left Venezuela, naively believing they could afford them some protection, and not otherwise knowing what to do.

24. The Tribunal considers the primary applicant inadvertently exposed himself and/or family to a higher risk of further threats and/or harm from paramilitary members by reporting the paramilitary visits to police and having a second complaint formally recorded in his name. Based on country information documenting the role of police and paramilitary in executing the Venezuelan government’s policies and the prevalence of corruption in government, the Tribunal further considers it is possible the police have communicated the substance of the primary applicant’s second complaint to the paramilitary member and/or superiors involved in the incident.

25. The Tribunal considers it is unlikely the police acted on the primary applicant’s second complaint.

26. The Tribunal does not draw any conclusions from the fact the primary applicant was able to depart and return to Venezuela from [Country 1] and subsequently depart Venezuela for Australia without being intercepted by the Venezuelan authorities.

27. The Tribunal considers the relocation from Venezuela to [Country 2] of the primary applicant’s sister and family in 2017 and his parents in 2018 strongly suggests their fears of threats and/or harm as a result of the paramilitary visits and the primary applicant’s involvement in the incident.

28. The Tribunal notes the primary applicant’s family home in Caracas was taken over by paramilitary members after his parents left Venezuela in 2018. The Tribunal further notes the translated online news article provided by the primary applicant following the hearing suggests that this is a practice carried out by colectivos, leftist paramilitary groups, in Caracas and elsewhere in Venezuela and sponsored by the government as a form of compensation.

29. The Tribunal considers it is likely the primary applicant’s family home was particularly vulnerable to confiscation by colectivos due to the previous paramilitary visits related to the primary applicant’s involvement in the incident.

30. The Tribunal considers the primary applicant’s participation in activities against the Venezuelan government after his arrival in Australia consistent with his long-held anti-government views, and not conduct engaged in by the primary applicant for the sole purpose of strengthening his claims for protection.[95]

    [95] s 5J(6) of the Migration Act 1958 (Cth).

31. The Tribunal considers it is reasonable the primary applicant did not apply for a protection visa in Australia immediately on his arrival given that he held a student visa, and was able to obtain a further and subsequent student visa, and he intended to use his time here to study English and plan how to deal with the situation he faced in Venezuela. The Tribunal further considers it is reasonable the primary applicant applied for a protection visa on the expiration of his further and subsequent student visa, having no other visa options and being unable to return to Venezuela.

32. The Tribunal considers that if the primary applicant returns to Venezuela, there is a real or substantial chance within the reasonably foreseeable future that:

    50.1.The primary applicant would be targeted with threats and/or harm by Venezuelan  paramilitary members related to his involvement in the incident and/or his complaints to police, and accused of being the perpetrator of the corrupt activities.

    50.2.The primary applicant would be arrested and detained by Venezuelan paramilitary members/authorities for an extended period with or without charge, deprived of his liberty, monitored, subjected to mistreatment and torture or death during detention, denied a fair trial, and/or subjected  to enforced disappearance.

33. The Tribunal considers that if the primary applicant returns to Venezuela, there would be no effective protection available to him from the Venezuelan authorities as they would be the perpetrators or enablers of the targeting and harm, and it is likely no legal protection or judicial review would be available to the primary applicant.

34. The Tribunal considers that the primary applicant would be exposed to targeting and harm by the Venezuelan paramilitary members/authorities regardless of where he lived in Venezuela.

35. The Tribunal considers that the primary applicant would be unable to modify his behaviour to avoid being targeted and harmed by the Venezuelan paramilitary members/authorities as his vulnerability to targeting and harm relates to the past incident, threats and paramilitary visits in Venezuela and, as a consequence, being perceived to be against the Venezuelan government.

    Other matter – “legal submission”

36. The Tribunal notes the support person who attended the hearing with the primary applicant and his wife appears on the Tribunal’s records as the recipient on behalf of the applicants. The Tribunal notes further that the support person/recipient is the author of a legal submission provided to the Tribunal in relation to the applicants’ case, which he has signed in his own name in his capacity as “Pro-bono McKenzie Friend – Pro-bono Paralegal”.

37. The Tribunal considers that the Act is clear in its restrictions on who is permitted to give immigration assistance. There is no evidence before the Tribunal to demonstrate that the support person/recipient is a person permitted under the Act to give immigration assistance.

38. In considering the claims and evidence, and making its findings and decision in this case, the Tribunal has relied entirely on the written and oral evidence and submissions made by the primary applicant and his wife on their own behalf.

    Application of law

1. The issue in this case is whether the primary applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.

2. The Tribunal finds that:

   58.1.The primary applicant is a citizen of Venezuela and non-citizen in Australia.

   58.2.The secondary applicants are citizens of Venezuela and non-citizens in Australia.

   58.3.The secondary applicants are members of the same family unit as the primary applicant.

   58.4.The primary applicant fears being persecuted in Venezuela for the essential and significant reason of political opinion, being perceived by Venezuelan authorities to be against the Venezuelan government.

   58.5.There is a real chance that, if the primary applicant returns to Venezuela, he would be persecuted for that reason.

   58.6.The persecution would involve serious harm.

   58.7.The real chance of persecution relates to all areas of Venezuela.

   58.8.There are no effective protection measures available to the primary applicant in Venezuela.

   58.9.The primary applicant could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Venezuela.

   58.10.The primary applicant has a well-founded fear of persecution as defined in s 5J of the Act.

   58.11.The primary applicant is outside Venezuela, his country of nationality, and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself of the protection of Venezuela.

   58.12.The primary applicant is a refugee as defined by s 5H(1)(a) of the Act.

   CONCLUSION

3. The Tribunal is satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

4. Having concluded that the primary applicant satisfies the criteria in s 36(2)(a) of the Act, accordingly, the secondary applicants satisfy the criterion in s 36(2)(b) of the Act.

   DECISION

5. The Tribunal remits the matter for reconsideration with the direction that the primary applicant satisfies s 36(2)(a) of the Act and the secondary applicants satisfy s 36(2)(b) of the Act.

   Kate Chapple
   Member

   
   
   

   ATTACHMENT A

   Summary of applicable law

   The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

   A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

   Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA.

   If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B).

   Relevant extracts from Migration Act 1958

   5 (1) Interpretation

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)     that is not inconsistent with Article 7 of the Covenant; or

   (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)     that is not inconsistent with Article 7 of the Covenant; or

   (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)     for the purpose of intimidating or coercing the person or a third person; or

   (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   receiving country,  in relation to a non-citizen, means:

   (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   5H    Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

   5J     Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K    Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L    Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   36     Protection visas – criteria provided for by this Act

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   (2A)A non‑citizen will suffer significant harm if:

   (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)     the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.