2001364 (Refugee)

2001364 (Refugee) [2023] AATA 4374 (22 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: Mr Ton Chau: legal practitioner & migration agent
(MARN: 1678344)

CASE NUMBER:  2001364
COUNTRY OF REFERENCE:                   Venezuela
MEMBER:Kate Chapple
DATE:22 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 wife and the son satisfy s 36(2)(b) of the Act.

Statement made on 22 September 2023 at 8:08am
CATCHWORDS
REFUGEE – protection visa – Venezuela – political opinion – opposition to the Venezuelan government – targeted, insulted, harassed and threatened by collective members – kidnapped and harmed – extortion – absence of corroborative documentary evidence – country information – human rights violations – repression of political dissent – arbitrary detention – enforced disappearance – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application

Protection visa application dated 15 March 2019 in which the wife and son rely on the primary applicant’s claims for protection.
Supporting material:
2.1.(English translation of) Primary applicant’s “Death Threat Report” dated [in] 2015 filed with the Department of Special Victim Services, Ministry of Popular Power for the Interior and Justice, Venezuela.
2.2.(English translation of) Primary applicant’s father’s report dated [in] 2019 filed with Scientific, Penal and Criminalistics Investigations, Ministry of Popular Power for the Internal Affairs, Justice and Peace, Venezuela.
2.3.(English translation of) Primary applicant’s “Proof of death threats against me”, undated, translated 11 March 2019.
2.4.(English translation of) Primary applicant’s “Statement on my fear of being harmed in Venezuela”, undated, translated 11 April 2019.
2.5.(English translation of) Statement of primary applicant’s former manager and supervisor at [Agency 1] within the [Government Department 1], Venezuela dated 27 May 2019.
2.6.General practitioner referral to psychologist dated 22 January 2019 regarding the primary applicant’s mental health.
2.7.Psychologists’ letter to the Department dated 8 March 2019 regarding the primary applicant’s mental health.
2.8.Representative’s submission dated 16 July 2019.
Other departmental records:
3.1.Decision record relating to the delegate’s refusal decision.
3.2.Interview audio files.
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 8 September 2023 and to provide pre-hearing submissions.
Prior to the hearing, the representative provided to the Tribunal:
Confirmation that the primary applicant and his wife intended to participate in the hearing with the assistance of the representative and an interpreter.
Details of witnesses intending to give oral evidence.
(English translation of) Primary applicant’s “Statement of my fear of harm in Venezuela – update 2023”, undated, translated 10 August 2023.
Representative’s submission dated 1 September 2023.
Primary applicant’s statutory declaration dated 1 September 2023 attesting to the accuracy of the representative’s submission and supporting documents.
(English translation of) Primary applicant’s letter dated [in] 2020 to US Secretary of State regarding human rights violations in Venezuela.
(English translation of) Notice dated [in] 2020 requiring primary applicant make a statement concerning the alleged commission of the crimes of: treason against the homeland, abuse of public authority, promotion or incitement to hatred and conspiracy to commit a crime issued by [Court 1].
(English translation of) Notice dated [in] 2021 requiring primary applicant to appear at [Court 1] on [in] 2021.
(English translation of) Order of Apprehension dated [in] 2021 against the primary applicant issued by [Court 2], Venezuela.
(English translation of) Order of Apprehension dated [in] 2022 against the primary applicant issued by [Court 2], Venezuela.
(English translation of) Minutes of the [numberth] Extraordinary Meeting of the Board of the [Building 1], 28 August 2022.
Primary applicant’s Facebook extracts (untranslated).
Video footage of officials’ attendance at the primary applicant’s mother’s home and sister’s [Occupation 1]ry practice.
Country information.
The Hearing
The primary applicant and his wife appeared before the Tribunal at a hearing conducted in person on 8 September 2023, with the assistance of an interpreter (in person) in the Spanish and English languages. The representative was present at the hearing.
Primary applicant’s evidence
The primary applicant gave evidence, summarised by the Tribunal as follows:
7.1.The primary applicant grew up with his parents, brother and sister in Caracas. His father ran a [business], which his brother worked in, as he did, from time to time. The parents separated a long time ago; his father started another family and has moved addresses a few times. His mother has lived in the same apartment for more than 30 years; the applicant also lived there while in Venezuela, and his brother and family continue living there with their mother. His brother does small informal jobs; he hasn’t had stable employment for a few years. His sister is a [Occupation 1] practising in Caracas.
7.2.The primary applicant became politically aware when he was at university, around age [age]. He was [age] when Chavez came to power. Before then, politics wasn’t widely discussed.
7.3.While the primary applicant was at university, he worked for his father running the [business]. After he had completed his technical qualifications in [Discipline 1], he worked for two different private companies. While working, he continued his university studies, aiming to be a fully qualified [Occupation 2], however he never completed these qualifications due to the problems he experienced during and after his employment with [Department 1].
7.4.The primary applicant’s old friend was a manager at [Department 1]. They had known each other since childhood. The friend came from the town where the primary applicant was born and where his father’s family lived. They spent holidays together. They didn’t go to university together; the primary applicant studied in Caracas whereas the friend studied at a university in his region, which explains the origins of their opposing political beliefs, the friend being strongly pro-Chavez. The friend let the primary applicant know about an administrative role in the area he managed in [Department 1], and he jumped at it. He started in April 2015.
7.5.The friend was aware of the primary applicant’s anti-Chavez political views, however the two of them didn’t discuss the issue at the start. The primary applicant needed the work, he and the friend got on well, and the friend had chosen him for the role. It was a contract role; ongoing positions are rare as when there are internal conflicts in the government, a new minister wants to be able to bring in their own people. The primary applicant’s job was [specified tasks] and he reported directly to his friend.
7.6.The primary applicant realised he would have problems working at [Department 1] when he observed workers from [Agency 1] (the national agency that [provide specified service]) in the hallways exchanging greetings and openly proclaiming their support for Chavez.
7.7.The primary applicant soon discovered that there were infiltrators in the ministry who were members of the collective (“small stone”) that was the armed branch of government that terrorised citizens privately. They took staff, including the primary applicant, out of their workplace to attend marches, and repeat pro-Chavez mantras. The primary applicant was open about objecting, and as a result was singled out and called an opposer, or a nickname that translates to weak, untrustworthy, not respectable. On one occasion, someone threw a banner bearing red pro-government slogans in his face and told him to march. He threw it back at them as if in jest, not realising until told that the person was a member of the collective. Knowing the collective’s reputation for torture and killing, the primary applicant began to fear for his own safety.
7.8.Part of the primary applicant’s job with [Department 1] was [specified task]. Here he witnessed what he believed was widespread indoctrination of children under the guise of large meetings that were ostensibly about information sharing. Sixty thousand people worked for [Agency 1]. He attended a gathering of around 20,000 people in a stadium where he and a few others spoke out against the government. Members of the collective in the crowd took the opposers out by force. He had a confrontation with a collective member. At the time, the primary applicant escaped their treatment because his friend and supervisor ensured he was protected. Nonetheless, since that time, he was marked; he was repeatedly insulted, told to shut his mouth, threatened with death, and accused of sabotaging the revolution.
7.9.The primary applicant held up photos to demonstrate the presence and profile of the collective, their uniform and signage, their armoury, and their relationship with high profile and powerful political figures.
7.10.Over time, the situation escalated until the friend and supervisor told the primary applicant that he must fire him as that would be his best protection. He left the job the day he was fired, in November 2015. The friend told him that he was on a list that the government keeps as a register of opposers, though the primary applicant hasn’t seen the list.
7.11.The primary applicant continued to be insulted, harassed and receive death threats by phone similar in nature to what he was subjected to by collective members when working at [Department 1].
7.12.[In] December 2015, the primary applicant was the victim of an express kidnapping. It is referred to as such because the collective members hold the person captive for a few hours while extorting the family for money. If the money is not paid in that short period, the victim is killed. In the primary applicant’s case, he was arriving home in the late afternoon/early evening when two men wearing masks came at him and put a hood over his head, threw him into a car, hit and insulted him, and told him it was his time to die. They then rang his mother and told her that they would kill her son if the money is not paid. They initially demanded $50,000, which was an impossible amount for his family to pay. The family managed to raise $10,000, which the collective members took, though they tried to push for more. In the hours it took for the family to raise the money, the primary applicant was held on the floor of the back seat of the car while driving as they continued to hit and insult him, and he begged for his life believing they would kill him. When the money was paid, they let him go in the carpark near his home. It is the most traumatic incident the primary applicant has ever experienced, and he remains in fear.
7.13.The collective members were able to contact the primary applicant’s mother because, as a result of his employment with [Department 1], all of his personal and family details are recorded by the government and accessible by the collective.
7.14.For about a week after the kidnapping the primary applicant wasn’t able to leave the house as the trauma and fear were overwhelming. When he told his friend and former supervisor about the kidnapping, the friend believed it was the work of the collective and reminded him that he had said this would happen if he voiced his opposition to the government. The primary applicant has kept in friendly contact since. He knows the friend was always trying to protect him, and if not for him, he’s sure he would have been tortured by the radical collective elements. The friend still works in a senior role for the Venezuelan government, but in a different ministry. He has never opposed the government.
7.15.After the kidnapping, the insults, threats to kill, and demands for more money continued. He also observed that the collective maintained a presence near his home. The primary applicant reported to police later in December 2015, however the police told him they were afraid of collective members, and refused to record a complaint against a named collective because that information would become known to them and there would be repercussions for the police.
7.16.The primary applicant decided that he needed to leave Venezuela to get away from the pressure and fear, do some study, and return when the situation calmed down. He remained public about his opposition to the government, he posted photos on Facebook of his support for the opposition, he genuinely believed that change was coming to Venezuela, and he hoped to return to a changed Venezuela. He got a 3 year student visa to study in Australia.
7.17.The primary applicant felt fear at the airport when he and his wife were departing for Australia. Although the friend and former supervisor had told him he was listed on the government’s register of opposers, at that stage there was no legal accusation against him that prevented him from exiting Venezuela.
7.18.The primary applicant and his wife came to Australia in May 2016, and applied for protection in March 2019 when his student visa was about to expire. In the intervening years, the primary applicant’s sister, brother, mother and father in Venezuela were targeted with harassment and threats as detailed in the applicant’s written statements and the representative’s submissions. His fears heightened because he realised the collective were pursuing his family to get at him. He feared that if he returned to Venezuela he would be kidnapped, harmed and tortured or killed.
7.19.The Tribunal referred to the translated court documents the primary applicant had provided. After his mother’s home was attended by government officials in August last year and they apprehended his brother believing him to be the primary applicant, his mother went to the government to request information about what they were alleging, however her request was denied. His mother then asked her second cousin, who is an administrative judge in Caracas, to find out what was going on. The cousin was able to get access to the court documents, which relate to proceedings against the primary applicant for breach of the Venezuelan Hate Law. The cousin’s advice is for the primary applicant to stay out of the country because these are politically driven charges, there is no legal avenue to oppose the charges. The primary applicant has not engaged a lawyer in Venezuela and does not want to because he would have to disclose his whereabouts, which he believes is too risky.
7.20.The Tribunal referred to the minutes of meeting of the board of [Building 1]. The primary applicant explained that [Building 1] is where his mother, brother and family live, and that after the attendance by government officials in August last year, he requested that the board provide a document verifying the harassment of his family.
7.21.The Tribunal referred to the primary applicant’s letter to the US Secretary of State. He explained that it was a proforma letter that many disaffected Venezuelan citizens signed. He has been targeted by the collective members and experienced strong fears, however he has never given up hope for a free Venezuela, and welcomes help from other countries to bring the dictatorship to an end. While in Australia, the primary applicant has continued to be involved in activities promoting the liberation of Venezuela.
7.22.The Tribunal noted that the Facebook extracts over the period 2015 to 2022 he had provided are not in English and queried what they are about. The primary applicant explained that they show him actively engaging in anti-government ideas and literature. The sites and platforms he engages with are often hacked, so the evidence he is able to provide is limited.
7.23.The primary applicant’s family members in Venezuela haven’t applied for homeland cards because they know they are recognised as opponents of the regime and they would be rejected. The primary applicant left Venezuela before the homeland card was introduced.
7.24.Given the primary applicant’s past experiences with the collective and the government charges against him, his biggest fear if he returns to Venezuela is that he could be tortured and his family, including his young son, harmed by the authorities.
7.25.The primary applicant and his wife had been trying to have a child in Venezuela for many years, then finally their miracle son was born in Australia. They have done their best to protect and care for him, but they don’t know what would happen to him if they returned to Venezuela.
Witness evidence – friend/former supervisor
The representative explained to the Tribunal that the friend/former supervisor had decided it was too risky for him to give oral evidence in further support of his written statement previously provided.
The Tribunal invited the representative to make a written submission in this regard following the hearing.
Witness evidence – [Building 1] resident
The [Building 1] resident gave evidence via video link with the assistance of the interpreter, summarised by the Tribunal as follows:
10.1.He has lived in the same apartment building as the primary applicant’s mother and brother for a very long time. He is on level [number], they are on level [number]. He knows them well; their mothers are friends. They are good neighbours, reliable, helpful; it is sad and regretful that they are experiencing this because they oppose the government. He hopes it can be resolved soon, it is very unjust to be under constant threat.
10.2.On different occasions from the end of 2015 to 2022, government employees and violent armed groups easily identified as collective members have come to the apartment building and harassed the primary applicant’s family. The most significant incident was when they came and mistook the brother for the primary applicant. He hasn’t always directly witnessed the incidents because he is on a different level of the building. When he has, he has been too afraid to take photos or videos on his phone because he may be dobbed in to the authorities.
Witness evidence – primary applicant’s brother
The primary applicant’s brother gave evidence via video link with the assistance of the interpreter, summarised by the Tribunal as follows:
11.1.He lives with his mother and wife and child. He’s not working right now.
11.2.His brother has had problems since 2015 when he worked for [Agency 1] and he didn’t agree with particular activities; he left because of problems he had with the collective.
11.3.When his brother was kidnapped, he had to deliver the money. It was clear they were collective members, not common criminals.
11.4.Last year government officials tried to arrest him, thinking he was his brother. He produced his ID then they let him go.
11.5.The last trouble was 4 to 5 months ago when government officials were asking his brother’s whereabouts. On one occasion previously, he had told them his brother was in Australia, so they know where he is.
11.6.The officials and collective members have told them often that if his brother returns to Venezuela, he will be arrested the moment he enters, then he thinks he could be tortured or forcibly disappeared as commonly occurs. They could say he hanged himself or died of food poisoning. These things happen to high profile people, so it can happen to someone much less important like his brother. There won’t be any court case. There is an apprehension order against his brother, which can be executed without legal process. Over time, if his brother does not return, the government officials and collective members will likely retreat because they’ll realise he's not coming back; they’re aware that when there’s too much pressure on people, they move.
Witness evidence – primary applicant’s mother

The primary applicant’s mother gave evidence via video link with the assistance of the interpreter, summarised by the Tribunal as follows:
12.1.She has lived in her apartment building for 38 years. Her son in Venezuela lives with her, and her son in Australia, lived with her for 31 years, before he left Venezuela.
12.2.Her son’s problems with the collective started in 2015 at his work because he was opposed to the government, as they all are. He started to receive threats because he refused to attend marches; they told him to shut his mouth or they would kill him. He felt terror and fear and finished in the job in November 2015.
12.3.When her son was kidnapped, she answered the kidnapper’s phone call. They told her they had her son, called him a cursed weakling; she could hear his cries over the phone, so she knew they had him. They demanded money. Some came from his father, the rest from her and other family members. Her other son delivered the money to them. When she saw how her son had been beaten, she told him to remain quiet or they would kill him. He was extremely scared and traumatised. It was painful for her to see him in this condition. He was so afraid, he didn’t want to make a police complaint; he did go to the police, however they told him the collective couldn’t be named, it could only be treated as a common crime.
12.4.After her son left Venezuela, threats came to her and her family in notes and phone calls. In 2019, she was robbed near her home. Judging by the way they dressed and spoke, she believed it was the collective. It was their way of getting to her son, through his family. When she told her other son about this, he became worried and arranged to spend three months in [Country 1] with his wife and child.
12.5.In 2021, the collective members came to her home and accused them of being the son’s accomplices. She and her son and family went to Trujillo state for a time because of escalating fears.
12.6.In 2022, officials came to her home with an arrest order for her son in Australia, but wouldn’t tell her the nature of it. They had already gone to her daughter’s [workplace] so they were prepared for their arrival and recorded them. They arrested her other son, but let him go when they realised he wasn’t the right person. They said they would arrest her son on his return to Venezuela because they have an order against him. She contacted her cousin and got copies of the accusations against her son: betrayal of the fatherland and inciting hatred.
12.7.During this nightmare, they haven’t obtained the fatherland card. The card grants access to benefits, public health, food packages, medicines. They can’t get the card because they oppose the regime. She and her son don’t work, she is elderly with diabetes and needs to have a cataract operation at a private clinic; they rely on the son in Australia for financial support.
12.8.The threats come out of the blue; it’s been a few months since the last, but this is often the pattern.
12.9.She is worried that if her son returns, he will be imprisoned, the regime does what it likes.
Witness evidence – primary applicant’s wife
The primary applicant’s wife gave evidence in person with the assistance of the interpreter, summarised by the Tribunal as follows:
13.1.She has witnessed the entire process as his partner. His health has deteriorated. Sometimes his blood pressure goes above 189. It is also difficult to witness her son’s distress when he is aware of his father’s stress and physical reactions. There is no peace for them even though they are so far away from Venezuela. She grew up in the area where the collective originated; she’s seen the terror they invoke when people think differently from the government. It terrorises her that this could happen to her husband. It is common in Venezuela that people are forcibly disappeared for holding a different political opinion.
Representative’s oral submissions
The representative submitted that:
14.1.The evidence from the primary applicant is compelling and credible, and the witnesses’ evidence is consistent.
14.2.They couldn’t have done much more to get evidence of the arrest warrant.
14.3.The primary applicant’s fear of harm is supported by media and witness evidence.
14.4.There is no way for the primary applicant to return to Venezuela knowing that his risk of being persecuted can’t be mitigated; it is quite likely he will be arrested on his return, there is no guarantee of protection, but this can’t be proven.
14.5.The primary applicant can’t obtain the homeland card not only because he is on the government ‘black list’; he must also sign a political declaration in support of the government, which is not consistent with his beliefs. His mother demonstrated that without the card, they can’t even have medical procedures done in the public hospital.
Representative’s post-hearing submissions
The representative made the following written submission by email sent later on the day of the hearing:
1.    [The friend/former supervisor] provided a signed statement with verifiable contact details dated 27 May 2019 in support of the Application (provided to the Department at the time of visa application).
2.    While the Department Officer gave this statement “little weight” due to [the friend/former supervisor’s] decades-long friendship with the Applicant, the delegate did accept that the Applicant’s employment was terminated due to his anti-government views.
3.    Our office organised a pre-hearing conference call with the Applicant and all supporting witnesses on 7 August 2023 through videoconference. We confirm that [the friend/former supervisor] attended the conference call. Despite explanation being provided on the administrative procedures and safeguards on anonymity of witness/evidence, he remained extremely concerned for his family’s safety and potential retaliation. We were only notified this morning that he no longer wished to participate in the Hearing.
4.    [The friend/former supervisor’s] support statement was and still is verifiable, although we acknowledge the practical and procedural restrains for the Tribunal to do so.
5.    The Applicant’s oral evidence provided today is consistent with all previous statements and evidence provided in the process (including [the friend/former supervisor’s] statement). Through his sworn evidence, the Applicant confirmed the authenticity and content of this statement.
6.    While we acknowledge that the Tribunal may not place significant weight on [the friend/former supervisor’s] statement, we respectfully submit that his evidence has probative value when viewed in conjunction with the entirety of evidence before the Tribunal in favour of the Applicant’s claims.
Country information
The Australian Government Department of Home Affairs Common Claims for Venezuela dated 5 November 2021 provides (inter alia) that:
16.1.Political opinion
Rival Presidential claimants Nicolás Maduro and Juan Guaidó have been locked in a power struggle since Guaidó proclaimed himself acting president on 23 January 2019 amid fierce protests over economic issues.[1] The United States (US) Department of State refers to Maduro’s administration as ‘the illegitimate Maduro regime’,[2] a description ‘not intended to indicate that the United States considers such entity a government’.[3] The most significant human rights issues in Venezuela are unlawful or arbitrary killings, including extrajudicial killings by security forces including government-sponsored colectivos, torture by security forces, detention and imprisonment of activists with political aims, harsh and life-threatening prison conditions, serious problems with the independence of the judiciary, and unlawful interference with privacy.[4]
[1] ‘Pope fears ‘bloodbath’ in Venezuela’, AFP [Agence France-Presse], 28 January 2019, 20190129090848
[2] 'Country Reports on Human Rights Practices for 2020 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, pp.1-2 Executive Summary, et seq., 20210331125015
[3] ‘2020 Report on International Religious Freedom: Venezuela’, Office of International Religious Freedom, United States Department of State, 12 May 2021, p.1 [Introduction]., 20210513110848
[4] ‘Country Reports on Human Rights Practices for 2020 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.2 Executive Summary, 20210331125015
The UN Human Rights Council, in a 27 September 2019 resolution, established an independent international fact-finding mission on Venezuela ‘to investigate extrajudicial executions, enforced disappearances, arbitrary detentions and torture and other cruel, inhumane or degrading treatment since 2014 with a view to ensuring full accountability for perpetrators and justice for victims’. The mission reported its findings to the Human Rights Council in September 2020 in two reports (summary and detailed).[5] It reported that in 110 cases it investigated of state repression of government opponents, the principal targets were often ‘social activists and political leaders at the forefront of protests, opposition politicians and military dissidents accused of rebellion, plotting coups or other conspiracies’.[6]
[5] ‘Report of the independent international fact-finding mission on the Bolivarian Republic of Venezuela. Advance Unedited Version’ (A/HRC/45/33), Independent international fact-finding mission on the Bolivarian Republic of Venezuela, [United Nations] Human Rights Council, 15 September 2020, p.2 paragraphs 1 & 2, 20201102104217; 'Detailed findings of the independent international fact finding mission on the Bolivarian Republic of Venezuela (A/HRC/45/CRP.11)', [Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela,], United Nations Human Rights Council, 15 September 2020, p.2 paragraphs 1 & 3, 20200917074633
[6] ‘Report of the independent international fact-finding mission on the Bolivarian Republic of Venezuela. Advance Unedited Version’ (A/HRC/45/33), Independent international fact-finding mission on the Bolivarian Republic of Venezuela, [United Nations] Human Rights Council, 15 September 2020, p.4 paragraph 22, 20201102104217; 'Detailed findings of the independent international fact finding mission on the Bolivarian Republic of Venezuela (A/HRC/45/CRP.11)', [Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela,], United Nations Human Rights Council, 15 September 2020, p.66 paragraph 243, 20200917074633. There are detailed studies of 19 (of the 110 investigated) cases in the full report ‘Details of the security framework and the security institutions are at 'Detailed findings of the independent international fact finding mission on the Bolivarian Republic of Venezuela (A/HRC/45/CRP.11)', [Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela,], United Nations Human Rights Council, 15 September 2020, pp.67- 196 paragraphs 246-997, 20200917074633.
The mission reported:
The Mission has reasonable grounds to believe that most of the violations and crimes documented in this report were committed as part of a widespread and systematic attack directed against a civilian population, with knowledge of the attack, pursuant to or in furtherance of two distinct State policies: Firstly, there was a policy to silence, discourage and quash opposition to the Government of President Maduro, including by targeting individuals who, through various means, demonstrated their disagreement with the Government, or were perceived as being against the Government, as well as their relatives and friends who were targeted for being associated with them. Secondly, there was a policy to combat crime, including by eliminating individuals perceived as “criminals” through extrajudicial execution.
… The Mission has reasonable grounds to believe that both the President and the Ministers of People’s Power for Interior Relations, Justice and Peace and for Defence, ordered or contributed to the commission of the crimes documented in this report, and having the effective ability to do so, failed to take preventive and repressive measures. …[7]
[7] ‘Report of the independent international fact-finding mission on the Bolivarian Republic of Venezuela. Advance Unedited Version’ (A/HRC/45/33), Independent international fact-finding mission on the Bolivarian Republic of Venezuela, [United Nations] Human Rights Council, 15 September 2020, pp.18 & 19 paragraphs 160 & 164, 20201102104217. This is expanded upon at 'Detailed findings of the independent international fact finding mission on the Bolivarian Republic of Venezuela (A/HRC/45/CRP.11)', [Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela,], United Nations Human Rights Council, 15 September 2020, pp.398-402 paragraphs 2086-2105, 20200917074633.
16.2.Other political opponents of the government
Widespread politically-motivated detentions occur in Venezuela. The Maduro government’s legitimacy is questioned by broad sectors of society.[8] According to FP, more than 12,800 people were arrested from 2014 (in a January 2019 report) in connection with anti-government protests;[9] and at least 15,045 people were detained for political reasons between January 2014 and May 2019; the majority in the context of demonstrations.[10] FP verified 15,688 arrests for political purposes in 2014-2020, 1745 of them of women.[11] 8900 had been conditionally released as of November 2019, but remained subject to criminal prosecution.[12]
[8] 'Religious Freedom in the World. Report 2021. Venezuela', Aid to the Church in Need (ACN), [20 April 2021,] p.[3], 20210423083901
[9] ‘Report: Military officers, relatives tortured in Venezuela’, Associated Press (AP), Lugo L A, 9 January 2019, 20200204083232. It has been contrastingly stated ‘From 1 January 2014 to 15 July 2020, the NGO Foro Penal registered 3,479 cases of politically motivated detention of which 902 (26 per cent) were selective detentions (with the remainder taking place in the context of protests).’: ‘Report of the independent international fact-finding mission on the Bolivarian Republic of Venezuela. Advance Unedited Version’ (A/HRC/45/33), Independent international fact-finding mission on the Bolivarian Republic of Venezuela, [United Nations] Human Rights Council, 15 September 2020, p.4 paragraph 25, 20201102104217; 'Detailed findings of the independent international fact finding mission on the Bolivarian Republic of Venezuela (A/HRC/45/CRP.11)', [Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela,], United Nations Human Rights Council, 15 September 2020, p.67 paragraph 246, 20200917074633.
[10] Human rights situation in the Bolivarian Republic of Venezuela. Report of the United Nations High Commissioner for Human Rights on the situation of Human rights in the Bolivarian Republic of Venezuela‘ (A/HRC/41/18), [United Nations High Commissioner for Human Rights,] United Nations Human Rights, Office of the High Commissioner, 5 July 2019, p.8 paragraphs 41, 20190708154125
[11] ‘Women Victims of Political Repression in Venezuela. Year 2020’, Foro Penal, [23 February 2021,] p.4, 20210604094142
[12] 'World Report 2020. Events of 2019', Human Rights Watch (HRW), 14 January 2020, pp.626-627, 20200115082903, which states ‘The Penal Forum counts more than 15,000 people arrested since 2014 in connection with protests, including demonstrators, bystanders, and people taken from their homes without warrants.’
After over a year of stonewalling AN,[13] on 30 March 2017 TSJ annulled AN’s constitutional functions, threatened to abolish parliamentary immunity, and assumed significant control over social, economic, legal, civil, and military policies.
[13] ‘Freedom in the World 2018. Venezuela Profile’, Freedom House, Accessed 2 February 2018, p.[3] & [2], NGED867A64
The TSJ action triggered large-scale street spring and summer protests. Security forces and colectivos used force, at times excessively, against protesters. Credible NGOs reported indiscriminate household raids, arbitrary arrests and use of torture, to deter protest. The government arrested thousands and tried hundreds of civilians in military tribunals.[14] It is estimated that 133 people were killed, 4000 were injured, and more than 5000 were arbitrarily detained during the April-July 2017 protests, IACHR reported in December 2017.[15] FP reported 5462 protest-related cases of arbitrary detention from April to December 2017.[16] Human Rights Watch reported that while no massive demonstrations occurred in 2018, security forces continued to repress spontaneous protests and carried out targeted arbitrary arrests of opponents or perceived opponents.[17]
[14] ’Country Reports on Human Rights Practices for 2017. Venezuela’, United States Department of State. Bureau of Democracy, Human Rights and Labor, pp.1-2, Executive Summary, 20 April 2018, OGD95BE927489
[15] ‘Democratic Institutions, the Rule of Law and Human Rights in Venezuela. Country Report’, Inter-American Commission On Human Rights, on OAS Organization of American States website, 31 December 2017, p.110 paragraph 193 (detailed at pp.128-141 paragraphs 237-256), CISEDB50AD9024
[16] ‘Country Reports on Human Rights Practices for 2018 - Venezuela’, United States Department of State, Bureau of Democracy, Human Rights, and Labor, 13 March 2019, p.10 Section 1.d, 20190314114120
[17] ‘Human Rights Watch World Report 2019’, Human Rights Watch, 17 January 2019, p.647, 20190118091502.
FP reported that 570 people were arbitrarily detained from August 2017 to April 2018 in the District Capital and 20 states.[18] FP reported 498 cases of arbitrary detention in 2018 to 15 November.[19]
[18] ‘Human Rights Violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight. Report by the Office of the United Nations High Commissioner for Human Rights’, [United Nations. Office of the United Nations High Commissioner for Human Rights,] June 2018 [document created 21/6/2018], p.23, CIS7B839411554
[19] ‘Country Reports on Human Rights Practices for 2018 - Venezuela’, United States Department of State, Bureau of Democracy, Human Rights, and Labor, 13 March 2019, p.10 Section 1.d, 20190314114120
A UN human rights spokesman said more than 850 people were detained between 21 and 26 January, including 696 on 23 January, including children;[20] Amnesty International said more than 900 people were detained during protests in the five days, 770 of them in a single day.[21] According to FP, 527 people were detained for political motives in 2018 and 2019 from January to May 2019,[22] 2169 people were arbitrarily detained from January to 31 August 2019,[23] and by October 2019 2182 people had been arbitrarily detained.[24]
[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.
16.3.Economic conditions
Most households in Venezuela are in income poverty, and unable to meet the cost of a basic food basket. Venezuela's 2017 GDP per capita has been variously estimated, including at USD 6850.10,[60] USD 12,400[61] and USD 13,800.[62] While the official national unemployment rate in 2017 was 8.1 per cent,[63] others estimated it to be 26.4 per cent.[64] The July 2020 National Survey on Living Conditions (ENCOVI) reported that 96 per cent of households in Venezuela were in income poverty and 79 per cent in extreme income poverty and unable to purchase the basic food basket.[65]
[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]
By the 2020-2021 ENCOVI, based on February to April 2021 questionnaires by 17,402 families in 14,000 households in 21 of the 23 states, released on 29 September 2021, 94.5 per cent of Venezuelans live in poverty, a figure unmatched elsewhere in the region, and 76.6 per cent live in extreme poverty, up from 67.7 per cent the previous year. The report attributed the increase both to the COVID-19 pandemic and to chronic fuel shortages, a major obstacle to employment.[70] The 2020-2021 ENCOVI report estimated that GDP contracted 74 per cent from 2014 to 2020.[71]
16.4.Welfare and social services
The government responded to mid-2016 shortages, particularly of food, which led to rioting and looting in a number of cities, by replacing a large part of the retail food distribution network with Local Supply and Production Committees (Comités Locales de Abastecimiento y Producción[72](CLAPs), using both the military and political organisations affiliated to the PSUV. The private sector was legally obliged to sell 50 per cent of its production to the government for distribution through this network. The scheme reduced the number and length of queues, a frequent trigger for riots, and enabled the government to use food as a political weapon, favouring its supporters and the politically docile.[73] The Documentation and Analysis Centre for Workers reported that in December 2017 the basket of consumer goods for a family of five, which is used to define the consumer price index, was 60 times the minimum wage, representing a 2123 per cent increase since November 2016. The government failed to acknowledge the worsening food shortage caused by the economic and social crises. In its Global Report on Food Crises 2017, the UN Food and Agriculture Organization stated that it lacked reliable official data on Venezuela and that the deepening of the critical economic situation could lead to a greater absence of consumer goods such as food and medical supplies.[74] According to Reuters news agency in 2018, life in Venezuela’s poor barrios (neighbourhoods) ‘revolves around the CLAP boxes’, received, according to the government, by six million families: ‘Stamped with the faces of Maduro and Chavez, the CLAP boxes usually contain rice, pasta, grains, cooking oil, powdered milk, canned tuna and other basic goods. Recipients pay 25,000 bolivars per box, or about [US]$0.12 at the black market rate. That is a godsend in a country where the minimum monthly wage is less than $2 at that rate - and would be swallowed up by two boxes of eggs or a small tin of powdered milk.’ Recipients told Reuters the boxes often arrived half-full and only every few months, and even more sporadically outside of the capital Caracas.[75]
Amnesty International stated that food distribution systems, such as CLAP’s, in 2020 ‘continued to fail to meet nutritional needs and operated according to politically discriminatory criteria’.[76]
President Maduro introduced the Carnet de la Patria (Homeland Card,[77] or Fatherland Card[78]) on 29 December 2016 as an electronic card which would initially serve to ration and distribute the food sold by the CLAP system and social missions [[79]].[80] There was immediate adverse reaction that the government was preparing to increase social control and retaliation against dissent.[81] Opposition political leaders said the card was a means to collect information to limit political activism.[82] The Carnet de la Patria program became by 2020 the Sistema Patria (Fatherland System,[83] or Homeland System[84]) web platform through which Venezuelans could register personal and family data to receive social benefits.[85] Citizens registered with the platform have received bonus public salaries, extra state benefits and priority COVID-19 vaccinations.[86] Freedom House reported in October 2020 that, in ‘the absence of personal data protection legislation, the destination, storage, and ultimate purpose of the government’s collection of information remains unknown’.[87]
Netherlands Ministry of Foreign Affairs cited a February 2020 ‘confidential source’ saying that while they did not know ‘to what extent’ voting behaviour could be assessed by using the Homeland Card, ‘people who have voted for the opposition have been threatened and have experienced difficulties in obtaining social services’.[88]
16.5.State protection
Venezuela is formally a multiparty constitutional republic, but for over a decade political power has been concentrated in a single party with an increasingly authoritarian executive exercising significant control over the legislative, judicial, citizens’, and electoral branches of government.[89]
…No independent government institutions remain to check executive power.[90] The government stripped power from the opposition-led legislature and represses dissent through often-violent crackdowns on street protests, jailing opponents and, in violation of international law, prosecuting more than 840 civilians in military courts.[91] The outgoing PSUV-controlled legislature in late 2015 ‘stacked’ the TSJ with its own appointees, and the ANC subsequently installed over a dozen regime loyalists on the TSJ. High courts generally do not rule against the government.[92] Supreme Court members have publicly rejected the separation of powers principle and have pledged to advance the government’s political agenda, and the Court has consistently upheld abusive practices.[93] In the World Justice Project (WJP) Rule of Law Index 2017–2018, based on surveys of households and experts, Venezuela (in which 1000 respondents were surveyed in 2016) ranked 113th of 113 countries.[94]
[66] ‘Human Rights Violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight. Report by the Office of the United Nations High Commissioner for Human Rights', Office of the United Nations High Commissioner for Human Rights (OHCHR), June 2018 [document created 21/6/2018], p.3, CIS7B839411554. Stated as 61 per cent in ‘A Double-Edged Sword. Protection Risks Facing Venezuelan Children During the COVID-19 Pandemic’, World Vision, 2020 [released 28 October 2020], pp.11 & 10, 20201104071650.
[67] ‘Oral Update on the Human Rights Situation in the Bolivarian Republic of Venezuela’, Bachelet M, United Nations High Commissioner for Human Rights, United Nations Human Rights Office of the High Commissioner, 9 September 2019, 20190910132410
[68] 'Amnesty International Report 2020/21. The State of the World’s Human Rights’, Amnesty International, 6 April 2021, pp.390-395 ‘Venezuela’ at 394, 20210407093348; ‘Venezuela: Human rights lose whilst impunity prevails: Amnesty International submission for the UN Universal Periodic Review, 40th session of the UPR working group, January 2022' (AMR 53/4488/2021), Amnesty International, 21 July 2021, p.10 including footnote 35 & p.37 at recommendation 133.223, 20210729080757
[69] ‘A Double-Edged Sword. Protection Risks Facing Venezuelan Children During the COVID-19 Pandemic’, World Vision, 2020 [released 28 October 2020], pp.13 & 10, 20201104071650. Cf. ‘World Vision, a global Christian humanitarian organization, conducted a survey of 420 households in Caracas and the neighboring state of Miranda in August 2020 to determine how the pandemic had affected the risks faced by children. Respondents were those aged 30 and over, of which 71% were women. "The problems that put children at greater risk during the pandemic are associated with food shortages, increased child labor (...) domestic violence and neglect," World Vision said in the study, which was released in November.’: 'Pandemic's hard realities worsen Venezuelan child labor crisis', Ramirez C E & Sequera V, Reuters, Thomson Reuters Foundation, 10 May 2021, 20210519091004
[70] ‘Extreme poverty in Venezuela rises to 76.6% - study’, Reuters, 30 September 2021, 20211027113203; ‘Encovi 2021: Venezuela Is The Poorest Country in Latin America’, Soto N, Caracas Chronicles, 30 September 2021, 20211027115322; ‘Venezuela crisis: Three in four in extreme poverty, study says’, BBC News, 30 September 2021, 20211027124240; ‘AMERICA/VENEZUELA - National survey (ENCOVI): poverty at the highest levels, employment decreases, only 5% of emigrants return’, Agenzia Fides, 1 October 2021, 20211027123245
[71] ‘Venezuela crisis: Three in four in extreme poverty, study says’, BBC News, 30 September 2021, 20211027124240
[72] ‘For poor Venezuelans, a box of food may sway vote for Maduro’, Andreina Aponte & Ana Isabel Martinez, Reuters, 12 March 2018, CXBB8A1DA34199
[73] ‘Watch List 2017‘, International Crisis Group (Brussels: Special Report Nº3, 24 February 2017), p.35, on Refworld website, CISEDB50AD378
[74] ‘Amnesty International Report 2017-18’, Amnesty International, 22 February 2018, pp.393-397 ‘Venezuela’ at p.397, NGED867A612
[75] ‘For poor Venezuelans, a box of food may sway vote for Maduro’, Andreina Aponte & Ana Isabel Martinez, Reuters, 12 March 2018, CXBB8A1DA34199
[76] March 2018, CXBB8A1DA34199 239 'Amnesty International Report 2020/21. The State of the World’s Human Rights’, Amnesty International, 6 April 2021, pp.390-395 ‘Venezuela’ at 394, 20210407093348
[77] ‘More than 16 Million Venezuelans Enrolled in the Carnet de la Patria System’, RNV (Radio Nacional de Venezuela), 2 November 2017, now only accessible on Internet Archive Wayback Machine website, captured 21 February 2018, CXC90406621214; ‘Freedom on the Net 2017 - Venezuela’, Freedom House, 14 November 2017, p.20, NG2A465F5210; ‘Transparency International denounces “Venezuelan apartheid”’, MercoPress, 17 March 2018, CXBB8A1DA26569; ‘Country Reports on Human Rights Practices for 2017 – Venezuela’, United States Department of State. Bureau of Democracy, Human Rights and Labor, 20 April 2018, p.27 Section 3, OGD95BE927489; ‘President Maduro's Likely Re-election in Breadline Venezuela’, Gunson P, International Crisis Group, 17 May 2018, CIS7B839411363.
[78] ‘With low turnout, Venezuela’s election will create what opponents call ‘puppet congress’’, Washington Post, The, 31 July 2017, CXC90406611372; ‘Venezuela's Maduro re-elected amid outcry over vote’, Reuters, 20 May 2018, CXBB8A1DA27642; ‘Poor Venezuelans crowd pro-Maduro stations in hope of vote 'prize'’, Luc Cohen & Francisco Aguilar, Reuters, 21 May 2018, CXBB8A1DA27653; 'Venezuela. Humanitarian crisis. Thematic report - 23 May 2018', ACAPS, 23 May 2018, pp.3 & 8, CIS7B839411184; ‘Maduro's tweeters, activists cash in on Venezuela election win’, Berwick A, Reuters, 26 May 2018, CXBB8A1DA34198.
[79] ‘Carnet de la Patria ha otorgado protección social a más de 250.000 familias venezolanas [Carnet de la Patria has granted social protection to more than 250,000 Venezuelan families]’, AVN [Agencia Venezolana de Noticias], Gobierno del Estado Bolivariano de Yaracuy [Government of the Bolivarian State of Yaracuy], 16 May 2017, CXC90406621223 (Google Translate translation ore%2F14885-Carnet-de-la-Patria-ha-otorgado-proteccin-social-a-ms-de-250000-familias-venezolanas%20)
[80] ‘“Carnet de la patria”: el nuevo racionamiento de comida en Venezuela [“Homeland card”: the new food rationing in Venezuela]’, Avendaño O, Panam Post, 29 December 2016, CIS38A80129134 (Google Translate translation ‘Carnet de la Patria. El apartheid revolucionario’ [Homeland Card. Revolutionary apartheid], Transparencia Venezuela [Transparency Venezuela], undated [2018], [document created 15 March 2018], p.5, CIS7B839419024; ‘Special Report: How ZTE helps Venezuela create China-style social control’, Berwick A, Reuters, 15 November 2018, 20211028102358.
[81] ‘“Carnet de la patria”: el nuevo racionamiento de comida en Venezuela [“Homeland card”: the new food rationing in Venezuela]’, Avendaño O, Panam Post, 29 December 2016, CIS38A80129134 (Google Translate translation ‘Freedom on the Net 2017 - Venezuela’, Freedom House, 14 November 2017, p.20, NG2A465F5210; the reference in footnote ‘147 Yoerli Viloria Diario de Los Andes, “El Carnet de la Patria pone en peligro la privacidad” [The Homeland Card endangers privacy] January 29, 2017, is not accessible
[83] 'Freedom on the Net 2020. Venezuela', Freedom House, [14 October 2020], p.[26] section C5, 20201105094017
[84] '‘Sistema Patria’: a new digital tool for social control in Venezuela', Singer F, El Pais, 24 April 2021, 20210603091407
[85] 'Freedom on the Net 2020. Venezuela', Freedom House, [14 October 2020], p.[27] section C5, 20201105094017
[86] '‘Sistema Patria’: a new digital tool for social control in Venezuela', Singer F, El Pais, 24 April 2021, 20210603091407
[87] 'Freedom on the Net 2020. Venezuela', Freedom House, [14 October 2020], pp.[27] & [26] section C5, 20201105094017
[88] 'General Country of Origin Information Report Venezuela (June 2020)', Netherlands Ministry of Foreign Affairs, 11 June 2020, p.36 including footnote 323, 20200806083533
[89] 'Country Reports on Human Rights Practices for 2019 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 11 March 2020, p.1 Executive Summary, 20200312111107; 'Country Reports on Human Rights Practices for 2020 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.1 Executive Summary, 20210331125015
[90] 'World Report 2020. Events of 2019', Human Rights Watch (HRW), 14 January 2020, pp.625 & 627, 20200115082903. Regarding the judiciary see also ‘Report of the independent international fact-finding mission on the Bolivarian Republic of Venezuela. Advance Unedited Version’ (A/HRC/45/33), Independent international fact-finding mission on the Bolivarian Republic of Venezuela, [United Nations] Human Rights Council, 15 September 2020, p.3 paragraph 17, 20201102104217; 'Detailed findings of the independent international fact finding mission on the Bolivarian Republic of Venezuela (A/HRC/45/CRP.11)', [Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela,], United Nations Human Rights Council, 15 September 2020, p.39-43 paragraphs 148-165, 20200917074633; and 'World Report 2021. Events of 2020', Human Rights Watch, 13 January 2021, pp.732-742 ‘Venezuela’ at 736, 20210114072851.
[91] 'World Report 2020. Events of 2019', Human Rights Watch (HRW), 14 January 2020, pp.625 & 627, 20200115082903; ‘Human Rights Watch World Report 2019’, Human Rights Watch, 17 January 2019, pp.645 & 649, 20190118091502.
[92] 'Freedom in the World 2019 - Venezuela', Freedom House, 5 February 2019, sections ‘Overview’ & F1, 20190218085724. See also 'Freedom in the World 2020 – Venezuela', Freedom House, 4 March 2020, sections ‘Overview’ (p.[2]) & F1 (p.[17]), 20200305095111
[93] 'World Report 2020. Events of 2019', Human Rights Watch (HRW), 14 January 2020, p.629, 20200115082903; 'World Report 2021. Events of 2020', Human Rights Watch, 13 January 2021, pp.732-742 ‘Venezuela’ at 736, 20210114072851 308 ‘World Justice Project Rule of Law Index 2017-2018’, World Justice Project, 31 January 2018, pp.151, 163, 3, 29 & 31, CIS7B83941372
[94] 'Country Reports on Human Rights Practices for 2019 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 11 March 2020, p.1 Executive Summary, 20200312111107; 'Country Reports on Human Rights Practices for 2020 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.1 Executive Summary, 20210331125015

The United Nations Human Rights Office of the High Commissioner press release dated 20 September 2022 provides (inter alia) that:
Targeted repression by State intelligence agencies
In its past reporting, the Mission had highlighted the roles of the two State military and civilian intelligence services — respectively, the Directorate General of Military Counterintelligence (DGCIM) and the Bolivarian National Intelligence Service (SEBIN)— in committing human rights violations since 2014, in the context of targeting real or perceived Government opponents. The Mission determined that some of these violations amount to crimes against humanity.
The current report provides a more detailed understanding of the role of individuals at different levels in the chains of command of both agencies in the implementation of a plan orchestrated by President Nicolas Maduro and other high-level individuals to suppress opposition to the Government, including through the commission of extremely grave acts of torture amounting to crimes against humanity.
The Mission has documented 122 cases of victims who were detained by DGCIM, 77 of whom were subjected to torture, sexual violence and/or other cruel, inhuman, or degrading treatment. Torture was carried out in its Boleíta headquarters in Caracas and in a network of covert detention centres across the country.
SEBIN has tortured or otherwise ill-treated detainees - including opposition politicians, journalists, protesters, and human rights defenders - mainly in the El Helicoide detention centre in Caracas. The Mission has investigated at least 51 cases since 2014. The report details how orders were given by individuals at the highest political levels to lower-ranking officials. Both SEBIN and DGCIM made extensive use of sexual and gender-based violence to torture and humiliate its detainees.
The Venezuelan authorities have failed to hold perpetrators to account and provide reparations to victims in a context where judicial reforms announced from 2021 have failed to address the justice system´s lack of independence and impartiality. Violations and crimes by SEBIN and DGCIM continue to this day. The same structures, dynamics and practices remain in place, while relevant officials continue to work for the agencies, and in some cases have even been promoted. The Mission's analysis furthermore details how these efforts were put into action by President Maduro and other high-level authorities as part of a deliberate plan by the Government to suppress criticism and opposition.
“The human rights violations by State intelligence agencies, orchestrated at the highest political levels, have taken place in a climate of almost complete impunity. The international community must do everything to ensure that victims’ rights to justice and reparations are guaranteed,” said Francisco Cox, Member of the FFMV Mission.
The Human Rights Watch World Report 2023, Venezuela: Events of 2022, provides (inter alia) that:
18.1.In November 2021, the International Criminal Court (ICC) prosecutor Karim Khan opened an investigation into possible crimes against humanity in Venezuela. In 2020, the United Nations Fact-Finding Mission (FFM) had found sufficient grounds to believe crimes against humanity have been committed as part of a state policy to repress opponents.
The UN Office of the High Commissioner for Human Rights (OHCHR), which has a presence in Venezuela, lost access in 2022 to detention centers where political prisoners are held.
Judicial authorities have participated or been complicit in the abuses, serving as a mechanism of repression.
Venezuela faces a severe humanitarian emergency, with millions unable to access adequate health care and nutrition.
Authorities harass and persecute journalists, human rights defenders, and civil society organizations. Persistent concerns include brutal policing practices, lack of protection for Indigenous people, and poor prison conditions.
An exodus of some 7.1 million Venezuelans represents one of the largest migration crises in the world.
A 2022 report by a European Union electoral observation mission laid out concrete recommendations to pave the way to free and fair elections.
Negotiations, that were stalled since October 2021, resumed in November.
18.2.Persecution of Political Opponents, Arrests, and Torture
The government has jailed political opponents and disqualified them from running for office. As of October, the Penal Forum, a network of pro-bono defense lawyers, reported 245 political prisoners.
At least 114 political prisoners have spent more than three years in pretrial detention, despite time limits included in a recent Criminal Code reform. Approximately 875 of the 15,770 civilians arbitrarily arrested from 2014 through June 2022 have been prosecuted in military courts, the Penal Forum reported.
While some detainees have been released or transferred from Bolivarian National Intelligence Service (SEBIN) facilities to prisons, new critics have been subject to arbitrary detention.
OHCHR continued receiving complaints of torture, ill-treatment, and incommunicado detentions in 2022.
Security forces and colectivos—pro-government armed groups—have repeatedly attacked demonstrations since 2014, including with violent raids, brutal beatings and point-blank range shootings.
According to official sources consulted by OHCHR, the Attorney General’s Office recorded 235 complaints of human rights violations involving deprivation of liberty, from May 2021 through April 2022, including 20 in terrorism-related charges.
OHCHR and the UN Working Group on Arbitrary Detentions, reported persistent challenges to ensuring the rights to liberty and fair trials. There are also delays in implementing judicial release orders.
In September, the UN FFM reported that crimes committed by intelligence services, on orders of high-level authorities, including Nicolás Maduro, were part of a deliberate policy to repress government opponents. The mission again described these as crimes against humanity.
18.3.Alleged Extrajudicial Killings
Agents of the Special Action Forces (FAES) and other police and military units have killed and tortured with impunity in low-income communities, including during security raids called “Operations To Liberate the People.”
Between 2016 and 2019, security forces alleged “resistance to authority” in more than 19,000 killings. Evidence showed many were extrajudicial killings. OHCHR documented continuing patterns of such killings in marginalized neighborhoods but reported a significant reduction in number in 2022.
18.4.Judicial Independence, Impunity for Abuses
The judiciary stopped functioning as an independent branch of government in 2004.
There has been no meaningful justice for crimes committed with knowledge or acquiescence of high-level authorities.
Judicial authorities have been complicit in abuses, the FFM reported in 2021, including by issuing retrospective warrants for illegal arrests, ordering pre-trial detention routinely, upholding detentions based on flimsy evidence, and failing to protect victims of torture.
Venezuela’s National Assembly, controlled by supporters of Nicolás Maduro, revised the Organic Law of the Supreme Court of Justice in January, requiring an entirely new Supreme Court, which plays a critical role in appointing and removing lower court judges, of 20 justices—down from 32. The selection process, was not independent. Although Venezuela’s constitution allows only one 12-year term, justices who had failed to act as a check on executive power were reappointed for longer.
CONSIDERATION OF CLAIMS AND EVIDENCE
In considering the primary applicant’s claims and evidence, the Tribunal has taken account of the:
19.1.Migration and Refugee Division Guidelines on the Assessment of Credibility.
19.2.Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
19.3.Country information set out in this decision record and provided by the representative.
In particular, the Tribunal notes the following credibility guideline:
20.1.[7] The tribunal is not bound by legal forms and technicalities or the rules of evidence. The tribunal considers all of the evidence available in order to make the correct or preferable decision. Evidence is assessed in its entirety, not just in isolated parts. The tribunal assesses evidence by weighing up its probative value and relevance to an applicant’s claims. There is no requirement in law that evidence must be independently corroborated before it can be accepted by the tribunal.
20.2.[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.
20.3.[9] Findings made by the tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances.
20.4.[36] The period of time that has elapsed between an applicant’s arrival in Australia and the time when he or she claims protection may be considered when assessing the genuineness or extent of an applicant’s subjective fear of persecution or significant harm.
20.5.[37] A delay in applying for protection should not be the sole reason for doubting an applicant’s claims. There should be other reasons to support a finding that an applicant’s claims are not credible. The significance of delay will depend upon the particular circumstances surrounding the delay and the reasons given for the delay.
The Tribunal notes the country information submitted by the primary applicant and representative is consistent with and adds to the country information set out 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 his account of what happened to him when he was in Venezuela and to his family in Venezuela after he came to Australia. 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.
The Tribunal considers each of the witness’s oral and/or written evidence credible.
The Tribunal considers it is reasonably understandable that, in the interests of his own protection, the primary applicant’s friend/former supervisor did not wish to give oral evidence.
The Tribunal considers that the minutes of the [Building 1] board are on the whole consistent with the oral evidence of the [Building 1] resident, however do not serve as stand-alone corroboration of the facts they assert.
Directly relevant to the primary applicant’s claims for protection, the Tribunal accepts:
28.1.The primary applicant was politically aware since a young adult in Venezuela and openly expressed his anti-government opinions.
28.2.The primary applicant was targeted, insulted, harassed and threatened while employed at [Department 1] for his opposition to the government, including by members of the collective.
28.3.The primary applicant was fired from his position with [Department 1] for his opposition to the government.
28.4.The primary applicant continued to be targeted, insulted, harassed and threatened after he was no longer employed at [Department 1] until he left Venezuela.
28.5.The primary applicant was kidnapped and harmed and his family were forced to pay a ransom for his release.
28.6.The primary applicant reported the kidnapping and harm to the police.
28.7.The primary applicant’s family have been targeted, insulted, harassed and threatened after the primary applicant left Venezuela.
28.8.Government officials attended the primary applicant’s mother’s home in August 2022 and attempted to arrest the primary applicant’s brother believing him to be the primary applicant.
28.9.The court documents are authentic.
28.10.The primary applicant continued to openly express his opposition to the Venezuelan government while he was in Venezuela and later in Australia.
28.11.The primary applicant remains traumatised by his experiences in Venezuela, his fears for his family in Venezuela, and his fears for himself and his wife and son if he returns to Venezuela.
The Tribunal considers it is likely:
29.1.The primary applicant was targeted, insulted, harassed and threatened by the collective members after he was no longer employed at [Department 1].
29.2.The primary applicant was kidnapped and harmed and his family was extorted by collective members.
29.3.The primary applicant’s family have been targeted, insulted, harassed and threatened by collective members.
29.4.The Venezuelan government maintains a record of the primary applicant’s opposition to the regime.
29.5.The primary applicant is known by the Venezuelan government and collective members to have left Venezuela.
29.6.The primary applicant is a person of adverse interest to the Venezuelan government for his known opposition to the regime and the court orders made against him.
The Tribunal considers it is reasonably understandable that the primary applicant did not apply for a protection visa until his student visa was close to expiring as he had come to Australia with the intention of allowing time for his own situation to settle down and for political change to occur in Venezuela, in the hope that he could return there. As it transpired however, the primary applicant’s problems escalated in his absence, heightening his risks should he return to Venezuela.
The Tribunal considers that the primary applicant’s expression of his opposition to the Venezuelan government while in Australia is consistent with his conduct throughout his time in Venezuela, and not engaged in for the purpose of strengthening his claims for protection.
The Tribunal considers that if the primary applicant returns to Venezuela, there is a real or substantial chance within the reasonably foreseeable future that he would be arrested and detained by Venezuelan authorities for an extended period with or without charge, deprived of his liberty, monitored, subjected to mistreatment and torture or death during detention, denied a fair trial, and/or subjected to enforced disappearance.
The Tribunal considers that if the primary applicant returns to Venezuela, there is a real or substantial chance within the reasonably foreseeable future that he would be targeted, insulted, harassed, threatened and harmed by collective members as he was in the past.
The Tribunal considers that if the primary applicant returns to Venezuela, there would be no effective protection available to him from the Venezuelan authorities as they would be the perpetrators or enablers of the targeting and harm, and it is likely no legal protection or judicial review would be available to the primary applicant.
The Tribunal considers that the primary applicant would be exposed to targeting and harm by the Venezuelan authorities and collective members regardless of where he lived in Venezuela.
The Tribunal considers that the primary applicant would be unable to modify his behaviour to avoid being targeted and harmed by the Venezuelan authorities and collective members as his vulnerability to targeting and harm relates to his past experiences in Venezuela and the court orders that have been made against him. The Tribunal further considers that if the primary applicant returns to Venezuela, it is likely he would continue to express his opposition to the 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:
38.1.The primary applicant is a citizen of Venezuela and non-citizen in Australia.
38.2.The wife and son are citizens of Venezuela and non-citizens in Australia.
38.3.The wife and son are members of the same family unit as the primary applicant.
38.4.The primary applicant fears being persecuted in Venezuela for the essential and significant reason of political opinion, that being his opposition to the Venezuelan government.
38.5.There is a real chance that, if the primary applicant returns to Venezuela, he would be persecuted for that reason.
38.6.The persecution would involve serious harm.
38.7.The real chance of persecution relates to all areas of Venezuela.
38.8.There are no effective protection measures available to the primary applicant in Venezuela.
38.9.The primary applicant could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Venezuela.
38.10.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 wife 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 wife 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 4374

22 September 2023

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Remedies