2000373 (Refugee)

2000373 (Refugee) [2023] AATA 4378 (15 September 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: Ms Shalini Chand, migration agent
(MARN: 1573271)

CASE NUMBER:  2000373
COUNTRY OF REFERENCE:                   Venezuela
MEMBER:Kate Chapple
DATE:15 September 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.
The Tribunal remits the matter for reconsideration with the direction that the husband and the son satisfy s 36(2)(b) of the Act.

Statement made on 15 September 2023 at 7:39am
CATCHWORDS
REFUGEE – Protection Visa – Venezuela – political opinion –member of the Justice First and Podemos parties – opposition to Chavez and Maduro regimes – openly expressed opposition to regime while employed in government role – significant and widespread human rights violations – repression of political dissent – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5J, 36, 48, 91, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application

Protection visa application dated 5 December 2018 in which the husband and son rely on the primary applicant’s claims for protection.
Supporting material:
2.1.Country information.
2.2.(English translation of) Venezuelan medical report dated 4 May 2018 regarding the son.
2.3.[Clinic A] Health and Medical Clinic report dated 14 March 2019 regarding the son.
2.4.[A] Refugee Health report dated 2 July 2019 regarding the son.
2.5.Primary applicant’s statutory declaration dated 1 May 2019.
2.6.Submission regarding legal issues dated 6 May 2019.
Other departmental records:
3.1.Decision record relating to the delegate’s refusal decision.
3.2.Interview audio file.
3.3.Case file.
3.4.Internal records relating to the applicants.
Application for review
The Tribunal wrote to the representative inviting the applicants to attend a hearing on 7 September 2023 and to provide pre-hearing submissions.
Prior to the hearing, the representative provided to the Tribunal:
5.1.Confirmation that the primary applicant intended to participate in the hearing with the assistance of the representative and an interpreter.
5.2.Submission by Universal Migration dated 1 September 2023.
5.3.[Clinic A] report dated 28 July 2023 regarding the applicants.
5.4.Letter from [a workplace] dated 26 July 2023 regarding the primary applicant’s employment.
5.5.(English translation of) the husband’s Venezuelan pension certificate.
5.6.Country information.
The Hearing
The primary applicant appeared before the Tribunal at a hearing conducted in person on 7 September 2023, with the assistance of an interpreter (in person) in the Spanish and English languages. The representative was present at the hearing.
The primary applicant gave evidence, summarised by the Tribunal as follows:
The primary applicant completed a [degree] in Venezuela in 1976. During university she studied [a subject], learned about democracy, socialism and capitalism, read Marx and other authors, developed her own analysis of these texts, and formed the view that socialism is not sustainable from an economic perspective. She also observed through the media the workings of the socialist government in Cuba. In the later stages of university, when the primary applicant was more mature and had read more, she became involved in the student centre, which fostered healthy debate between the left and right wing students. She found the socialist students aggressive and bullying and not open to other ideas. It was clear to her that this wasn’t right, and remained committed to democratic principles.
The primary applicant shared her views on socialism with her parents; they would discuss it often at home. She believes in democratic rights and freedoms, which is how they lived in Venezuela until socialism ended it all. Her father ran a small [business]. He was a member of the Democratic Action Party, and an activist against the tyranny of dictator, Jiminez.
At university, the primary applicant protested whenever she thought she needed to. The protests weren’t about socialist rule; rather, they concerned university budgets, the quality of teaching, and teachers’ salaries. The government’s response was often violent, students were killed, and this led to further protests. On one occasion, the primary applicant was part of a student group that took over [a] faculty as a form of protest. The police arrived and they couldn’t escape, so she and others were detained, then released the following morning because the police didn’t have any evidence that they had breached the law.
Justice First became a political party around the time that Chavez came to power. The primary applicant was working for the government in Caracas when a founder of the party approached her to join. She gave her signature to petitions and attended meetings where ideas and platforms were presented about how government could function better. She was interested in the policy process and became an advocate for the party. When the primary applicant was at university, the people who subsequently formed Justice First were involved in the right-wing Social Christian Party (or COPEI). Justice First was an evolution from the earlier party, which had run out of steam and was beset by corruption and financial crises, which created a favourable environment for Chavez to come to power.
The primary applicant was involved in Justice First until it divided and Marina Corina Machado formed her own splinter party, Podemos (translated as “we can”). While in Venezuela, she became involved in whichever party was actively trying to remove Chavez from power. She was never issued any party membership documents because she was working for the government and such membership was, in theory, not allowed.
It is common in Venezuela for political parties to form coalitions, then break up, with leaders going in different directions. Even if they were united in their opposition to Chavez, they weren’t united in how to restore the direction of the country. Machado is considered a strong candidate for the presidential elections in December 2024; opposition parties have unified behind her as part of a movement known as “come Venezuela”.
People in the primary applicant’s workplace knew about her involvement in opposition parties because she spoke openly about her disagreement with the government. This caused her a lot of problems including discrimination, insults, poor treatment, however she refused to quit her job early and forego her pension entitlement. She told herself to put up with it, but they were very difficult years. She worked in [an area] and was aware of money being directed to elevating Chavez without justification.
After the primary applicant graduated from university, she managed a private shop business for two years. She then married and had her first child who had mental development problems so she didn’t work for two years while she cared for him. She then got a career position with [Ministry 1, a government department] in Caracas where she remained for 17 years, ending up as [Position 1]. At that level, it’s known as a trusted position, and the political leader must sponsor you. At the time, the COPEI party was in power, a party she supported. She served as [Position 1] for at least ten years. Even though the government changed during that time, it alternated between COPEI and the Democratic Action Party; they could see she did her job well and life was happy. She was even promoted to manager [in Ministry 1] when Democratic Action was in power, however not because of her political allegiances, rather because she was good at her job.
Tascon is the opposition politician who wanted to have a referendum that would allow Venezuelan citizens to decide whether Chavez should continue in power. They needed five million voters plus one to succeed. The primary applicant worked on the campaign to gather the list of signatures, including her own (‘the Tascon list’). They achieved the numbers, however Chavez insisted on an audit of the list and Tascon handed the list over. The audit process was corrupt; it claimed the list wasn’t legitimate and the referendum was disallowed. The list in the hands of the government was used in 2007 and 2008 as proof of signatories’ opposition to the government; they used the social security ID number to track those who were working for the government. The primary applicant’s boss at the time called a meeting, asked her why she and almost all her staff had signed the list, and told her it would be best if she quit. She told him to find a reason to fire her then do it because she did not intend to quit. She knew that signing the list was not a valid ground for her sacking. Nonetheless, there were mass sackings of government staff who had signed the list, including 14 in her team. With a diminished team, they couldn’t afford to lose her. The list was officially erased after international pressure, however it is likely the government continued to use it against dissidents.
The functions of what became [Institute 1] had previously been part of [Ministry 1], however under Chavez they expanded and became reliant on different funding sources.
The new institute was established and all associated staff, including the primary applicant, were transferred over. Chavez approved the creation of the new institute to have more autonomy, but not in a good way. The Institute was responsible for [details deleted]; it generated a lot of income through [levies]. The intention was to use the income to promote the Chavez government. That’s when the large scale corruption started.
The primary applicant was working in administration management and refused to sign authorisations for the payment of funds to the Chavez cause. She told her colleagues that she didn’t agree; the Chavez supporters among them told her to quit. That was when she was denied access to meetings, ostracised, not asked her opinion, a psychological strategy to force her out. The primary applicant had a lot of resolve and strength; she didn’t want to lose her years of service, and she knew they needed her expertise. There were other likeminded people, however over time they left their positions, some left the country. If you left a government job, it was unlikely you would find work because you had to be in agreement with Chavez to access other work opportunities.
A significant incident for the primary applicant was when superiors ordered that those staff who opposed Chavez [had to complete a menial task]. She refused and told them that she and her staff would not be participating. The incident accelerated her retirement.
Once retired in 2010, the primary applicant felt she was free to do and say what she wanted, including attending marches. However she realised that the government was tapping her phone conversations and texts. She knew this from people who worked for public security agencies and a neighbour who told her that the government accesses the communications of people who oppose the regime to pre-emptively attack. Politicians who had the resources to pay private investigators were able to demonstrate that the government had been tapping their communications and undermining their privacy and confidentiality. There were many community advisory groups, and army, whose role was to go after people with views contrary to the government. She became very distrusting of everyone, fearing that at any time she could be accused of being a traitor or inciting disorder, and could end up in prison.
When Maduro later came to power, the situation became a lot worse. People who came to work at the Institute were more radical and fanatic. Her lengthy service there meant she was in possession of a lot of knowledge about illicit activities that was damaging to the government. She started getting calls from former work superiors who threatened her about opposing the government. Former colleagues told her not to attend marches because she might be killed, she had to look after her family. This continued until she left Venezuela.
On one occasion in 2014, she and her husband had collected their [age]-year-old grandson from child care and they were pulled over on a main street by four members of SEBIN police intelligence. They pointed machine guns at her and her husband, told them to get out of the car, padded them down, pushed her against the car and hit her with the butt of a gun, and inspected the boot without explaining what was going on. When their grandson started to cry, they were let go.
On Christmas eve, 2017, the primary applicant and her husband were travelling on the highway to her niece’s house for a celebration. The national police stopped them on the side of the highway, demanded they hand over their papers, tell them where going, and detained them for three hours. The primary applicant called her niece to say they would be late. The niece’s husband was a military man, however he’d been involved in Machado’s political movement against Maduro and was imprisoned. After his release, he went to [Country 1], and had recently returned to Venezuela to spend Christmas with his family. He kept weapons in the house; he became very angry and illogical and wanted to come to the scene and kill the police. This made the primary applicant more anguished; she begged the police to let them go and told the police friends were coming to look for them and they could cause some problems for the police. She was worried they may be imprisoned. There are two possible prisons: one is very dirty and unhygienic; the other is called “the tomb” underneath SEBIN. The tomb rooms are closed off from the world, people are tortured there to extract false confessions, some have been forcibly disappeared and their dead bodies later returned to their families. Eventually, the police returned their papers and let them go. It was at the family gathering that night that the primary applicant and her husband decided they must leave Venezuela.
The primary applicant and her husband were in a dire financial situation. Their government pensions were only $4 per month, which was not enough to cover their living costs and care for their disabled son. When the primary applicant moved over to the new institute, she received a salary increase, which wasn’t taken into account when calculating her pension and resulted in her receiving half her entitlement. This did not happen to other colleagues. The primary applicant believes it was to specifically punish her.
The primary applicant, her husband and son were forced to get homeland cards because otherwise they were unable to buy food or medicine or access their pension. There were no requirements to obtain the cards. There was an account called a patriotic wallet for the receipt of pension payments; it functioned as a debit card rather than having the money paid into a personal account. Over time, this system proved not to work, so they were told to open personal accounts. The government would from time to time make random payments to retired citizens, for example for mother’s day or father’s day, however the applicant never received these payments.
Today there is a list of those who have left Venezuela. The primary applicant’s niece had been involved in opposition parties. She went to [Country 2] for two years; the day after she returned to Venezuela, people from the community advisory council visited her, and interrogated and threatened her. She then fled to [Country 3]. The primary applicant is very scared that if she returns to Venezuela, she will be arrested at the airport because she is on this list, and she and her family will face serious risk.
The primary applicant’s other son left Venezuela and came to Australia with his wife around 11 years ago. The situation in Venezuela wasn’t as bad then. They both had good jobs, they wanted to learn English, and they were able to access low interest credit to pay for overseas study. He is now an Australian citizen and works in [named field].
The primary applicant, her husband and son came to Australia on visitor visas in September 2018. The quickest plane route was via [Country 1], however they could no longer do that. Instead, they went to [a city] on the [Country 3] side of the border via a footbridge carrying small suitcases, then travelled to [named countries] then Australia. She told family they were going shopping across the border; they didn’t need to know they were leaving the country.
Despite her experiences in Venezuela, the primary applicant still wasn’t sure that coming to Australia was the right thing to do. She had only been out of Venezuela on brief work-related trips, they are not a migratory culture, it is quite challenging mentally to abandon your country, and to learn a new culture and language. However, their grand daughter had been born, so they felt they should make the most of their trip to Australia for that reason, and once here, work out whether they wanted to stay. They had no choice, they could not go back to Venezuela; the whole family was suffering and they needed to find a solution.
When the primary applicant was researching where they could live, she saw that Australia was a member of the UN Council on Refugees, was party to multiple international conventions, and had a long history of migration. She also researched the requirements for the grant of protection and believed that her circumstances made her eligible to apply. The primary applicant feels like she came back to life when she came to Australia.
The primary applicant and her husband are the primary carers of their son. He has an intellectual disability and diabetes, which requires daily medication to reduce his blood sugar level. The primary applicant is working so she is able to pay for the medication, the cost of which is reduced through Medicare. Her other son lives nearby and provides support from time to time when needed. Her husband is older and no longer works.
The primary applicant talks with her older sister in Venezuela once a week. Her niece, the sister’s daughter, who lives in a different city, helps care for her. Her husband’s sister also lives in Venezuela. All other family are outside Venezuela, including her brother who moved to [Country 1] last year.
Country information
The Australian Government Department of Home Affairs Common Claims for Venezuela dated 5 November 2021 provides (inter alia) that:
8.1.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.
8.2.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.
8.3.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]
[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
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]
[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
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]
[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
8.4.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]
8.5.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]
[72] ‘For poor Venezuelans, a box of food may sway vote for Maduro’, Andreina Aponte & Ana Isabel Martinez, Reuters, 12 March 2018, CXBB8A1DA34199
[73] ‘Watch List 2017‘, International Crisis Group (Brussels: Special Report Nº3, 24 February 2017), p.35, on Refworld website, CISEDB50AD378
[74] ‘Amnesty International Report 2017-18’, Amnesty International, 22 February 2018, pp.393-397 ‘Venezuela’ at p.397, NGED867A612
[75] ‘For poor Venezuelans, a box of food may sway vote for Maduro’, Andreina Aponte & Ana Isabel Martinez, Reuters, 12 March 2018, CXBB8A1DA34199
[76] March 2018, CXBB8A1DA34199 239 'Amnesty International Report 2020/21. The State of the World’s Human Rights’, Amnesty International, 6 April 2021, pp.390-395 ‘Venezuela’ at 394, 20210407093348
[77] ‘More than 16 Million Venezuelans Enrolled in the Carnet de la Patria System’, RNV (Radio Nacional de Venezuela), 2 November 2017, now only accessible on Internet Archive Wayback Machine website, captured 21 February 2018, CXC90406621214; ‘Freedom on the Net 2017 - Venezuela’, Freedom House, 14 November 2017, p.20, NG2A465F5210; ‘Transparency International denounces “Venezuelan apartheid”’, MercoPress, 17 March 2018, CXBB8A1DA26569; ‘Country Reports on Human Rights Practices for 2017 – Venezuela’, United States Department of State. Bureau of Democracy, Human Rights and Labor, 20 April 2018, p.27 Section 3, OGD95BE927489; ‘President Maduro's Likely Re-election in Breadline Venezuela’, Gunson P, International Crisis Group, 17 May 2018, CIS7B839411363.
[78] ‘With low turnout, Venezuela’s election will create what opponents call ‘puppet congress’’, Washington Post, The, 31 July 2017, CXC90406611372; ‘Venezuela's Maduro re-elected amid outcry over vote’, Reuters, 20 May 2018, CXBB8A1DA27642; ‘Poor Venezuelans crowd pro-Maduro stations in hope of vote 'prize'’, Luc Cohen & Francisco Aguilar, Reuters, 21 May 2018, CXBB8A1DA27653; 'Venezuela. Humanitarian crisis. Thematic report - 23 May 2018', ACAPS, 23 May 2018, pp.3 & 8, CIS7B839411184; ‘Maduro's tweeters, activists cash in on Venezuela election win’, Berwick A, Reuters, 26 May 2018, CXBB8A1DA34198.
[79] ‘Carnet de la Patria ha otorgado protección social a más de 250.000 familias venezolanas [Carnet de la Patria has granted social protection to more than 250,000 Venezuelan families]’, AVN [Agencia Venezolana de Noticias], Gobierno del Estado Bolivariano de Yaracuy [Government of the Bolivarian State of Yaracuy], 16 May 2017, CXC90406621223 (Google Translate translation ore%2F14885-Carnet-de-la-Patria-ha-otorgado-proteccin-social-a-ms-de-250000-familias-venezolanas%20)
[80] ‘“Carnet de la patria”: el nuevo racionamiento de comida en Venezuela [“Homeland card”: the new food rationing in Venezuela]’, Avendaño O, Panam Post, 29 December 2016, CIS38A80129134 (Google Translate translation ‘Carnet de la Patria. El apartheid revolucionario’ [Homeland Card. Revolutionary apartheid], Transparencia Venezuela [Transparency Venezuela], undated [2018], [document created 15 March 2018], p.5, CIS7B839419024; ‘Special Report: How ZTE helps Venezuela create China-style social control’, Berwick A, Reuters, 15 November 2018, 20211028102358.
[81] ‘“Carnet de la patria”: el nuevo racionamiento de comida en Venezuela [“Homeland card”: the new food rationing in Venezuela]’, Avendaño O, Panam Post, 29 December 2016, CIS38A80129134 (Google Translate translation ‘Freedom on the Net 2017 - Venezuela’, Freedom House, 14 November 2017, p.20, NG2A465F5210; the reference in footnote ‘147 Yoerli Viloria Diario de Los Andes, “El Carnet de la Patria pone en peligro la privacidad” [The Homeland Card endangers privacy] January 29, 2017, is not accessible
[83] 'Freedom on the Net 2020. Venezuela', Freedom House, [14 October 2020], p.[26] section C5, 20201105094017
[84] '‘Sistema Patria’: a new digital tool for social control in Venezuela', Singer F, El Pais, 24 April 2021, 20210603091407
[85] 'Freedom on the Net 2020. Venezuela', Freedom House, [14 October 2020], p.[27] section C5, 20201105094017
[86] '‘Sistema Patria’: a new digital tool for social control in Venezuela', Singer F, El Pais, 24 April 2021, 20210603091407
[87] 'Freedom on the Net 2020. Venezuela', Freedom House, [14 October 2020], pp.[27] & [26] section C5, 20201105094017
[88] 'General Country of Origin Information Report Venezuela (June 2020)', Netherlands Ministry of Foreign Affairs, 11 June 2020, p.36 including footnote 323, 20200806083533
[89] 'Country Reports on Human Rights Practices for 2019 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 11 March 2020, p.1 Executive Summary, 20200312111107; 'Country Reports on Human Rights Practices for 2020 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.1 Executive Summary, 20210331125015
[90] 'World Report 2020. Events of 2019', Human Rights Watch (HRW), 14 January 2020, pp.625 & 627, 20200115082903. Regarding the judiciary see also ‘Report of the independent international fact-finding mission on the Bolivarian Republic of Venezuela. Advance Unedited Version’ (A/HRC/45/33), Independent international fact-finding mission on the Bolivarian Republic of Venezuela, [United Nations] Human Rights Council, 15 September 2020, p.3 paragraph 17, 20201102104217; 'Detailed findings of the independent international fact finding mission on the Bolivarian Republic of Venezuela (A/HRC/45/CRP.11)', [Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela,], United Nations Human Rights Council, 15 September 2020, p.39-43 paragraphs 148-165, 20200917074633; and 'World Report 2021. Events of 2020', Human Rights Watch, 13 January 2021, pp.732-742 ‘Venezuela’ at 736, 20210114072851.
[91] 'World Report 2020. Events of 2019', Human Rights Watch (HRW), 14 January 2020, pp.625 & 627, 20200115082903; ‘Human Rights Watch World Report 2019’, Human Rights Watch, 17 January 2019, pp.645 & 649, 20190118091502.
[92] 'Freedom in the World 2019 - Venezuela', Freedom House, 5 February 2019, sections ‘Overview’ & F1, 20190218085724. See also 'Freedom in the World 2020 – Venezuela', Freedom House, 4 March 2020, sections ‘Overview’ (p.[2]) & F1 (p.[17]), 20200305095111
[93] 'World Report 2020. Events of 2019', Human Rights Watch (HRW), 14 January 2020, p.629, 20200115082903; 'World Report 2021. Events of 2020', Human Rights Watch, 13 January 2021, pp.732-742 ‘Venezuela’ at 736, 20210114072851 308 ‘World Justice Project Rule of Law Index 2017-2018’, World Justice Project, 31 January 2018, pp.151, 163, 3, 29 & 31, CIS7B83941372
[94] 'Country Reports on Human Rights Practices for 2019 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 11 March 2020, p.1 Executive Summary, 20200312111107; 'Country Reports on Human Rights Practices for 2020 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.1 Executive Summary, 20210331125015

The United Nations Human Rights Office of the High Commissioner press release dated 20 September 2022 provides (inter alia) that:
Targeted repression by State intelligence agencies
In its past reporting, the Mission had highlighted the roles of the two State military and civilian intelligence services — respectively, the Directorate General of Military Counterintelligence (DGCIM) and the Bolivarian National Intelligence Service (SEBIN)— in committing human rights violations since 2014, in the context of targeting real or perceived Government opponents. The Mission determined that some of these violations amount to crimes against humanity.
The current report provides a more detailed understanding of the role of individuals at different levels in the chains of command of both agencies in the implementation of a plan orchestrated by President Nicolas Maduro and other high-level individuals to suppress opposition to the Government, including through the commission of extremely grave acts of torture amounting to crimes against humanity.
The Mission has documented 122 cases of victims who were detained by DGCIM, 77 of whom were subjected to torture, sexual violence and/or other cruel, inhuman, or degrading treatment. Torture was carried out in its Boleíta headquarters in Caracas and in a network of covert detention centres across the country.
SEBIN has tortured or otherwise ill-treated detainees - including opposition politicians, journalists, protesters, and human rights defenders - mainly in the El Helicoide detention centre in Caracas. The Mission has investigated at least 51 cases since 2014. The report details how orders were given by individuals at the highest political levels to lower-ranking officials. Both SEBIN and DGCIM made extensive use of sexual and gender-based violence to torture and humiliate its detainees.
The Venezuelan authorities have failed to hold perpetrators to account and provide reparations to victims in a context where judicial reforms announced from 2021 have failed to address the justice system´s lack of independence and impartiality. Violations and crimes by SEBIN and DGCIM continue to this day. The same structures, dynamics and practices remain in place, while relevant officials continue to work for the agencies, and in some cases have even been promoted. The Mission's analysis furthermore details how these efforts were put into action by President Maduro and other high-level authorities as part of a deliberate plan by the Government to suppress criticism and opposition.
“The human rights violations by State intelligence agencies, orchestrated at the highest political levels, have taken place in a climate of almost complete impunity. The international community must do everything to ensure that victims’ rights to justice and reparations are guaranteed,” said Francisco Cox, Member of the FFMV Mission.
The Human Rights Watch World Report 2023, Venezuela: Events of 2022, provides (inter alia) that:
10.1.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.
10.2.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.
10.3.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.
10.4.Judicial Independence, Impunity for Abuses
The judiciary stopped functioning as an independent branch of government in 2004.
There has been no meaningful justice for crimes committed with knowledge or acquiescence of high-level authorities.
Judicial authorities have been complicit in abuses, the FFM reported in 2021, including by issuing retrospective warrants for illegal arrests, ordering pre-trial detention routinely, upholding detentions based on flimsy evidence, and failing to protect victims of torture.
Venezuela’s National Assembly, controlled by supporters of Nicolás Maduro, revised the Organic Law of the Supreme Court of Justice in January, requiring an entirely new Supreme Court, which plays a critical role in appointing and removing lower court judges, of 20 justices—down from 32. The selection process, was not independent. Although Venezuela’s constitution allows only one 12-year term, justices who had failed to act as a check on executive power were reappointed for longer.
CONSIDERATION OF CLAIMS AND EVIDENCE
In considering the primary applicant’s claims and evidence, the Tribunal has taken account of the:
11.1.Migration and Refugee Division Guidelines on the Assessment of Credibility.
11.2.Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
11.3.Relevant country information set out in this decision record.
In particular, the Tribunal notes the following credibility guideline:
[8] The process of determining whether an applicant meets a visa criterion, including whether an applicant is a person who meets the definition of a refugee, often requires the tribunal to decide whether it accepts certain evidence and how much weight to give to that evidence. This process may involve assessing the credibility of an applicant or other persons and documentary evidence.
The Tribunal notes the country information submitted by the primary applicant and representative is consistent with and adds to the country information set out by the Tribunal in this decision record.
The Tribunal notes the Venezuela country information reports extensively on significant and widespread human rights violations, repression of political dissent and freedom of expression, arbitrary detention, torture and mistreatment, enforced disappearances, inhumane detention conditions, excessive force, extra-judicial executions, impunity, and unfair trials.
The Tribunal considers the political situation in Venezuela is such that there is a heightened risk of serious adverse consequences for individuals who participate in anti-government activities or who are perceived by the authorities to be anti-government, regardless of their status or profile.
The Tribunal considers the primary applicant’s oral and written evidence consistent, comprehensive and credible, and accepts her account of what happened to her when she was in Venezuela. The Tribunal does not consider the veracity of any of the primary applicant’s claims is diminished or negated due to the absence of corroborative documentary evidence.
Directly relevant to the primary applicant’s claims for protection, the Tribunal accepts:
17.1.The primary applicant was politically aware and active since a young adult in Venezuela.
17.2.The primary applicant was a member of the Justice First and Podemos parties and involved in the activities of other parties and movements that opposed the Chavez regime.
17.3.The primary applicant openly expressed her opposition to the Chavez regime to work colleagues and superiors while employed in a senior role in [Institute 1].
17.4.The primary applicant witnessed and opposed corruption favouring the Chavez regime while employed in a senior role in [Institute 1].
17.5.The primary applicant was discriminated against, insulted, and marginalised by work colleagues and superiors while employed in a senior role in [Institute 1] for her opposition to the Chavez regime, further details of which are set out in the primary applicant’s statutory declaration and the representative’s submission.
17.6.After retiring from her senior role in [Institute 1], the primary applicant was cautioned, harassed and threatened by former work colleagues and superiors for her opposition to the Chavez and Maduro regimes, further details of which are set out in the primary applicant’s statutory declaration and the representative’s submission.
17.7.The primary applicant and her husband are the full-time carers of their son, and they support him principally from their own and family resources.
The Tribunal considers it is likely:
18.1.The Venezuelan government maintains a record of the primary applicant’s long-term employment with the government and her opposition to the Chavez and Maduro regimes.
18.2.The Venezuelan government tracked the primary applicant’s communications, movements and activities while she was employed in a senior role in [Institute 1] and after her retirement.
18.3.The incident in 2014 involving SEBIN police intelligence was related to the primary applicant’s opposition to the Chavez and Maduro regimes.
18.4.The incident on Christmas eve 2017 involving the national police was related to the primary applicant’s opposition to the Chavez and Maduro regimes.
18.5.The primary applicant is known by the Venezuelan government to have left Venezuela.
18.6.The primary applicant would be a person of adverse interest to the Venezuelan government if she returns to Venezuela.
The Tribunal considers that if the primary applicant returns to Venezuela, there is a real or substantial chance within the reasonably foreseeable future that the primary applicant would be arrested and detained by Venezuelan authorities for an extended period with or without charge, deprived of her liberty, monitored, subjected to mistreatment and torture or death during detention, denied a fair trial, and/or subjected to enforced disappearance.
The Tribunal considers that if the primary applicant returns to Venezuela, there would be no effective protection available to her 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.
The Tribunal considers that the primary applicant would be exposed to targeting and harm by the Venezuelan authorities regardless of where she lived in Venezuela.
The Tribunal considers that the primary applicant would be unable to modify her behaviour to avoid being targeted and harmed by the Venezuelan authorities as her vulnerability to targeting and harm relates to her past opposition to the Chavez and Maduro regimes. The Tribunal further considers that if the primary applicant returns to Venezuela, it is likely she would continue her opposition to the Maduro regime.
Application of law
The issue in this case is whether the primary applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
24.1.The primary applicant is a citizen of Venezuela and non-citizen in Australia.
24.2.The husband and son are citizens of Venezuela and non-citizens in Australia.
24.3.The husband and son are members of the same family unit as the primary applicant.
24.4.The primary applicant fears being persecuted in Venezuela for the essential and significant reason of political opinion, that being her opposition to the Maduro regime.
24.5.There is a real chance that, if the primary applicant returns to Venezuela, she would be persecuted for that reason.
24.6.The persecution would involve serious harm.
24.7.The real chance of persecution relates to all areas of Venezuela.
24.8.There are no effective protection measures available to the primary applicant in Venezuela.
24.9.The primary applicant could not take reasonable steps to modify her behaviour so as to avoid a real chance of persecution in Venezuela.
24.10.The primary applicant has a well-founded fear of persecution as defined in s 5J of the Act.
CONCLUSION
The Tribunal is satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the primary applicant satisfies the criteria in s 36(2)(a) of the Act, accordingly, the husband and son satisfy the criterion in s 36(2)(b) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the primary applicant satisfies s 36(2)(a) of the Act, and the husband and son 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.

[2023] AATA 4378

15 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies