2003468 (Refugee)

2003468 (Refugee) [2024] AATA 4188 (2 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ricardo Vicente Viana
CASE NUMBER:  2003468
COUNTRY OF REFERENCE:                   Venezuela
MEMBER:Mia Bailey
DATE:2 August 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 02 August 2024 at 5:39pm
CATCHWORDS
REFUGEE – Protection Visa – Venezuela – applicant genuinely holds a political opinion in opposition to the Maduro government – membership of Primero Justicia – worked in various high-profile roles – a returned failed asylum seeker who is opposed to the government – inability to obtain a Carnet de la Patria without concealing or modifying his political opinion –– applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 46, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 3 February 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 14 March 2019. The delegate refused to grant the visas on the basis that the first named applicant (applicant) does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and the second named applicant (second applicant), as a member of the same family unit as the applicant, does not satisfy the criteria in s 36(2)(b) or

s 36(2)(c) of the Act. The applicants provided a copy of the delegate’s refusal decision to the Tribunal as part of the review application.
The applicants were represented in relation to the review. They appeared before the Tribunal, with their representative, on 15 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence via video from ‘[Mr A], a former work colleague of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act 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. Relevant provisions of the Act are extracted in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether any of the applicants engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Act. For the following reasons, I have concluded that the matter should be remitted for reconsideration.
Background and receiving country
The applicant is a [age]-year-old male. The second applicant, a [age]-year-old female is his wife. They provided a copy of their Venezuelan marriage certificate to the Department and I accept that they are married.
They arrived in Australia on [date] February 2017 on [specified visas]. They departed Australia on [date] March 2019 for [a] trip to [a country], returning on [date] March 2019. They have not returned to Venezuela since departing in February 2017.
The applicants presented their Venezuelan passports and other identity documents to the Department in support of the protection visa application. The delegate accepted them to be citizens of Venezuela and there is no contrary evidence before me. I find that the applicants are citizens of Venezuela, and that Venezuela is their receiving country for the purposes of assessing their claims for protection.
Evidence before the delegate
The applicants received assistance from the Refugee and Immigration Legal Service (RAILS) with their protection visa application. The second applicant did not raise protection claims in her own right. Relevant biographical information from the protection visa application regarding the applicant is summarised below:
i.He was born and resided in Caracas until 2001. Between 2001 and February 2017, he primarily resided in [City 1].
ii.His parents and [brother] are deceased. His [sister] resides in Venezuela. He has a [child] from a previous relationship who resides in [Country 1]. He also has several half-siblings, most of whom reside in [Country 1].
iii.He completed high school in Caracas. Between [year range] he completed a [degree]. Between [year range] he completed [another] degree. He has completed a [Master’s degree] in Australia.
iv.Since 1992 he was employed in various roles in Caracas and [City 1], including as an [occupation] for [Government Employer 1] (2006 – 2008); [Position 1] for the [Government Employer 1] and [Government Employer 3] (2012 – 2013), [Position 2] for the [Employer 2] (August 2013 – April 2015) and [another role] for his family [business] in [City 1] (June 2015 – January 2017).
Regarding his protection claims, the applicant provided a detailed 13-page statement which includes several photos and an extract of a screenshot of his name on the ‘Maisanta database’ or ‘Tascon list’, together with documents confirming his employment in Venezuela. He attended 2 interviews with the Department, accompanied by a RAILS lawyer: on 17 June 2019 and 12 December 2019. Following the first interview, RAILS provided legal submissions dated 27 June 2019. Following the second interview, the applicant provided a statutory declaration dated 21 January 2020 in response to additional questions from the Department relating to the period between April 2015 and February 2017.
The key claims raised by the applicant before the Department are as follows:
Tascon list
In 2003 and again in 2004 he signed a petition in support of the recall of the then President, Hugo Chavez. This subsequently became known as the Tascon list and prevented him from securing government jobs and having access to the benefits of government employment, including subsidised food, health care and other basic services. If he were to return, he would again be discriminated against in relation to government employment because of his political opinion against the government.
[Government Employer 1]
While employed with the [Government Employer 1] between 2006 to 2008, he uncovered incidents of corruption, leading to questioning, threats and eventually termination of his employment.
He secured employment with the [Government Employer 1] and later the [Government Employer 3] between 2012 to 2013 because his [brother] was appointed as [position]. In this role he was responsible for implementing [deleted] and uncovered incidents of corruption [which] led to threats against him.
Pro-opposition activities
While working for the [Government Employer 1], he was a member of the opposition political party, Primero Justicia, and participated in protests or rallies against the Maduro government and in support of opposition candidate, Capriles Radonsky (photos are included in the written submission).
When asked at the second protection visa interview about his membership of Primero Justicia, he responded that he was never a member of the party but supported them, including through his work with [Government Employer 1] and [Government Employer 3] which were then controlled by the opposition.
[Employer 2]
In August 2013 he was contacted by his nephew – whose brother-in-law held a senior position with [a government agency] – asking him to perform short-term specialist and sensitive [work] for the [Employer 2]. Given the circumstances, no background check was performed.
After successfully performing this work, he was asked to remain as [Position 2]. He agreed and requested that [Mr A], a former work colleague from the [Government Employer 1], join him at the [workplace]. In the course of their employment, they discovered evidence of embezzlement or corruption in relation to inter-governmental digital money transfers.
Following a change in senior management, his employment was terminated after a background check revealed his inclusion on the Tascon list.
Following his departure, he learnt from [Mr A], who had remained working for [Employer 2], that secret microphones had been found in the office ceilings (photos are included in the written submission) and he (the applicant) was under [investigation] .
When asked at the first protection visa interview about the investigation, he stated that [Mr A] was often asked about the applicant’s whereabouts and activities by senior [officials].
In his statutory declaration dated 21 January 2020, in response to the question of whether he was ‘actively investigated by the authorities for any reason’, he stated ‘I have never been investigated by the authorities for any reason.’
Carnet de la Patria
Between April 2015 and February 2017, he tried repeatedly to enrol his family in the government’s food distribution system but was never approved. He was told that he had to have a Carnet de la Patria or be registered as a member of a comuna which requires support of the Bolivarian movement.
The Carnet de la Patria is essential to access basic goods and social services and would require him to pledge his support for the Maduro government, contrary to his political opinion.
Harm on return
When departing the airport in Venezuela in February 2017, he was questioned by an officer of the National Guard about his permission to exit the country and was warned that he would experience consequences if he were to return.
He fears that, as a returned failed asylum seeker who is opposed to the government and has worked in various high-profile public sector roles, he would be viewed as a traitor and be detained, questioned and falsely accused of a crime.
Delegate’s findings
The delegate accepted the applicant’s claimed employment history, including with [Employer 2], and his inclusion on the Tascon list. The delegate found that he was not a member of any political party, including Primero Justicia, but accepted that he attended some pro-opposition political rallies and was a ‘low-level opposition supporter’.
The delegate accepted that the applicant had discovered evidence of embezzlement at [Employer 2] but did not accept that he came under investigation following his termination. The delegate was not satisfied that the applicant was of adverse interest to the authorities at the time of his departure from Venezuela, or that he would be of adverse interest if he were to return.
Regarding the Carnet de la Patria, the delegate was of the view that there was nothing preventing the applicant being able to obtain this card if he were to return, noting that he had previously willingly worked for the government-owned [Employer 2] and had no political profile of interest to the authorities.
Evidence before the Tribunal
Pre-hearing evidence
Prior to hearing, the Tribunal received a 3-page written submission from the applicant’s representative, a statutory declaration dated 8 July 2024 from the applicant and a statement from [Mr A] (untranslated version dated 21 September 2021 and English translation dated 3 July 2024).
Relevant evidence from the applicant’s statutory declaration is summarised below:
i.In 2003 and again in 2004 he signed a petition, later known as the Tascon list, calling for the recall of President Chavez. Signatories of the Tascon list were subject to persecution and discrimination by the government.
ii.In 2013 he and his wife participated in anti-government marches.
iii.While working at [Employer 2], he was required to remove any social media posts in support of the opposition and was coerced into participating in government marches in support of Maduro.
iv.In 2015 he was dismissed from [Employer 2] due to his affiliation with the opposition. He was unofficially told that he should remain in Caracas because an investigation was pending to determine whether he had exfiltrated confidential information.
v.He was unable to secure any other government employment because of his inclusion on the Tascon list. He had to return to [City 1] to work in his family business.
vi.In early 2016, [Mr A] warned him that he was under surveillance and his safety was not guaranteed. [Mr A] left Venezuela due to threats from [executives] affiliated with the government. He has been granted refugee status in [Country 2]. Fearing for their lives, he and his wife decided to leave Venezuela.
vii.Between 2015 and their departure in early 2017, he and his wife faced discrimination from government-affiliated groups. His wife was physically and verbally assaulted by government supporters in their neighbourhood while trying to purchase food.
viii.In 2018, his [brother] passed away due to cancer. He was denied health care in public hospitals and access to necessary medications because of his affiliations with the opposition. His brother’s death led to the closure of the family business in [City 1].
ix.He fears that if they return to Venezuela, they will face unemployment and lack of access to medical services and adequate food.
Relevant evidence from [Mr A]’s statement is summarised below:
i.He worked with the applicant at the [Government Employer 1] between 2012 and 2013 and at [Employer 2] between 2013 and 2015.
ii.While employed with [Employer 2], they were forced to participate in political rallies in support of the government. Attendance was monitored and any [employees] who refused to participate were dismissed.
iii.Dismissal from public-sector employment involves removal from the food distribution system, public housing program, private health care, household goods and the Carnet de la Patria system.
iv.Following the applicant’s dismissal from [Employer 2], an internal investigation was commenced in relation to his alleged involvement in leaking information about [deleted]. He was told this by the new [Position 1]. [Mr A] was also under investigation and was threatened with dismissal if he did not provide information concerning the applicant’s address, travel and involvement in any anti-government political activity.
v.He obtained permission to take holiday leave and left Venezuela for [Country 2], where he applied for political asylum.
Applicant’s oral evidence
Regarding the applicant’s family, he confirmed that his parents are deceased; his father passed away in 2014 and his mother a few years earlier. His father was a [occupation] and his mother a [occupation]. His [brother] passed away in 2018. He is not in contact with his [sister] but believes she continues to live in Caracas.
Following their departure from Venezuela in February 2017, he was told by friends and neighbours that their home in [City 1] was taken over by colectivos (pro-government paramilitary groups). The family [business] in [City 1], which was owned by his [brother], closed down about one year after his brother’s death. The website remains on the internet, but the business is not operational.
Asked whether he undertook any overseas travel between leaving [Employer 2] in April 2015 and departing for Australia in February 2017, he stated that they went on a trip to [Country 2] before learning of the investigation against him. He did not experience any difficulties on departure or return but noted that they travelled from [City 1], not Caracas.
Asked about his involvement in anti-government political activities, he stated that he regularly attended pro-opposition protests and events in [City 1], including in support of Capriles Radonsky’s presidential campaign in 2013. He voted against the Maduro government in the 2013 presidential election. Asked to clarify whether he was a member of any opposition political party, he stated that he was a member of Primero Justicia during the periods that he worked for the [Government Employer 1] and [Government Employer 3]. He explained the discrepancy with his evidence at the protection visa interview as arising because he did not use the interpreter for most of the interview. While he was a member of Primero Justicia, he did voluntary [work] for the party. His [brother] was also a member of Primero Justicia and was the party’s [role].
Asked whether he was involved in any anti-government political activities between April 2015 and February 2017, he stated no; after learning that he was being investigated by [Employer 2], he was afraid that this would cause problems for him.
I discussed with the applicant his claims regarding [Employer 2]. Asked whether he formally reported the information about embezzlement to anyone, he stated that he told his director who advised him not to tell anyone and [to] prevent others from seeing it. Asked what reason he was given for his termination, he stated that when a new director was employed, they learnt of his connections to the opposition, and he was told that his services were no longer required.
Asked about his statement to the Department in his statutory declaration dated 21 January 2020 that he has never been investigated by the authorities for any reason, he stated that his intention was to clarify that the has no criminal record and has never been legally investigated for any reason. He did not intend to refer to unofficial investigations, such as that being carried out by [Employer 2].
Asked whether anything occurred between April 2015 and February 2017 to indicate that he was under surveillance, he stated that [Mr A] kept him updated about what was occurring at the [workplace]. They kept insisting that he return to Caracas to receive his final payments, but he did not. He eventually received payment about one year after leaving the [workplace].
I discussed with the applicant that in his statutory declaration dated 8 July 2024, he claims to have been warned by [Mr A] in early 2016 that he was under surveillance and his safety could not be guaranteed and as a result they decided to leave Venezuela as they feared for their lives, yet they remained in Venezuela until February 2017. He responded that they had previously applied in 2016 for [visas] to Australia but were refused as they failed to provide all the necessary documents. It took at least one year to make arrangements to depart for Australia and their intention was to come to Australia and see what happened after the next election. Asked whether they considered going to a neighbouring country such as [Country 2], as many other Venezuelans have done, he responded no, as they had the protection of a private security detail in [City 1] which was arranged by his [brother].

I discussed with the applicant that his evidence to the Department about the [investigation] appears less serious than his claims to the Tribunal. He stated to the delegate that [Mr A] was often asked questions about the applicant, whereas he is now claiming that he was actively under surveillance and in fear for his life. He responded that the rule of law does not apply in Venezuela. There is no requirement for an official investigation to be commenced; if someone ‘points a finger at you’, that can mean trouble, including from government-affiliated paramilitary groups. He has knowledge of crimes committed by senior officials of the Maduro regime through [Employer 2]. If he were to return, he is sure he would be on a list of those to be ‘purged’.
I raised with the applicant that in his statutory declaration dated 21 January 2020 he refers to appearing on [TV] shows in June and July 2016 and making [radio] appearances as part of his role with his [business]. I queried why this did not result in an increased risk for him if he was under surveillance or targeting by the authorities. He responded that these appearances occurred in [City 1] where he had the protection of security/bodyguards and his [brother] was present.
I raised with the applicant that, according to his evidence to the Department, in 2018 he emailed [Employer 2] to ask for an updated letter confirming his employment. Asked why he did so if he was aware that he was under surveillance and [investigation], he responded that he needed this for his [visa] application as proof of his work experience. I noted that he already had a letter from [Employer 2] confirming his employment, a copy of which was submitted to the Department.
I asked the applicant about the claim in his statutory declaration dated 21 January 2020 that between April 2015 and February 2017 he repeatedly tried to enrol his family into the government’s food distribution system but was told that he required a Carnet de la Patria or registration as a comuna member. He stated that this is a government card that allows you to access essential goods such as gasoline and food. The system is run by the comuna which are affiliated with the government. Asked whether he had tried to apply for the Carnet de la Patria while in Venezuela, he stated that between 2016 and 2017 they filled in the forms but were never approved and were called ‘opposition scum’ by members of the comunas and colectivos. Asked how they knew that he was affiliated with the opposition, he stated that many people know him in [City 1] because of his involvement with [Government Employer 1] and the opposition party.
I raised with the applicant that country information indicates the Carnet de la Patria was introduced in January 2017, being shortly prior to his departure from Venezuela. Both applicants responded that is not correct; the card was available prior to that. Asked whether his [brother] received the Carnet de la Patria before he passed away, he stated no, which is why he did not receive medical care when he was sick with cancer.
Asked about the claim in his statutory declaration dated 8 July 2024 that between 2015 and 2017 he and his wife faced discrimination from government affiliated groups, he stated that his wife was subjected to mistreatment while queuing for food. The second applicant explained that the comunas are run by armed paramilitary groups which are very dangerous. She was called ‘opposition scum’ and pushed while in the queue. She did not return after that incident.
Asked about involvement in any political activities while in Australia, including on social media, he stated that he doesn’t post anything of a political nature because they still have relatives in Venezuela. They attended a few marches in Brisbane in 2017 in support of the opposition.
The second applicant confirmed that she is not raising her own protection claims and wishes to rely on her husband’s claims. She provided evidence to the Tribunal that she fears for their safety and lives in Venezuela. Because of their experience on exiting the airport in February 2017, she fears they are now on a ‘blacklist’ of some kind. She also expressed a fear of harm from pro-government paramilitary groups.
Oral evidence of [Mr A]
[Mr A] confirmed that he departed Venezuela for [Country 2] in April 2016 and has not returned since that time. Asked about the discovery of the concealed listening devices at [Employer 2], he clarified that he was not the one who found them. The devices were found in early 2016 in the ceiling of [a] room of the [Employer 2] offices. He was summoned to explain the devices because of his [role]. There was subsequently a sweep of the entire building and listening devices were found in several other concealed locations. This led to a joint investigation being established by [Employer 2] and [an agency]. He is not aware of whether any incriminating information was found on the listening devices.
Regarding the photos submitted by the applicant as part of his protection visa application, [Mr A] confirmed that he took these photos when the devices were found. He was in the presence of personnel from [Employer 2] and [an agency]. They were annexed to a report submitted as part of the joint investigation. He sent a copy of the photos to the applicant.
Asked why they targeted the applicant, given he had departed the [workplace] by that time, he explained that they were suspicious of the applicant because of the level of clearance required to access the [room]. While employed with the [workplace], the applicant was one of the few people who held this clearance level. As it was commonly known that he was close to the applicant and had secured the job with [Employer 2] through the applicant, he was questioned about his knowledge of the applicant’s whereabouts and activities. When he did not provide them with the information, he was told that his own safety and job could be at risk.
Findings and assessment
Factual findings
In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility[1] and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]
[1] Administrative Appeals Tribunal, Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015
[2] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
[3] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
I find the applicant’s claims to be overall credible. They have remained substantially consistent since he lodged his protection visa application. He has provided detailed written evidence together with documentary evidence in support of key elements of his claims. His oral evidence was also detailed and plausible and, as discussed below, his claims are generally consistent with country information.
Tascon list
I accept that the applicant signed petitions in 2003 and 2004 in support of a recall referendum regarding the presidency of Hugo Chavez. The details of all signatories were later published online by Luis Tascon, hence becoming known as the Tascon list. In 2005, the ‘Maisanta program’ was developed, comprising a database of all registered voters which identified those who had supported the recall referendum and providing details of other political allegiances. This was widely disseminated on CDs to government offices around the country. The terms ‘Tascon list’ and ‘Maisanta program’ are often used interchangeably. They were both used by the government to discriminate against existing and prospective job applicants on the basis of their political affiliation.[4]
[4] Country information as cited in the delegate’s refusal decision
In his written statement provided as part of his protection visa application, the applicant included a screenshot showing his details on the Maisanta database, including his name, and national identity number and that he had signed twice ‘against the President’. The delegate noted that the format of the screenshot is consistent with details of the Maisanta database obtained via an open-source internet search.
According to a May 2017 report from the Immigration and Refugee Board of Canada, the Maisanta database, known as ‘the present-day form of the Tascón List’, was still in use. Those on the ‘wrong side’ of the list are prevented from obtaining public sector jobs and can be denied government services. If someone's name appears on this list, it is impossible for that person to get a government job, or they may have issues accessing housing.[5]
Pro-opposition support
[5] Immigration and Refugee Board of Canada, Venezuela: Treatment of suspected whistle-blowers or former government employees, by the government or pro-government groups (2015 - May 2017) VEN105784.E, 19 May 2017
I accept that the applicant was an opposition supporter and participated in pro-opposition marches or rallies in the lead up to the 2013 Presidential election. He provided several photos of his and his wife’s attendance at these events as part of his written statement to the Department. As discussed above, there are some inconsistencies in his evidence of whether he was a member, as opposed to a supporter, of the opposition party Primero Justicia (Justice First). According to sources cited in a 2016 report from the Immigration and Refugee Board of Canada, Justice First started as a civil society organization focused on legal reform and became a political party in 2000, positioning itself as a centrist party, committed to social liberalism and Christian-democrat principles. Although in Venezuela Justice First is considered a centre-right party, it has been characterised as a social democratic party, and has been ‘consistently anti-Chavista’. Supporters of the government view Justice First as a ‘right-wing group’ or ‘coup-mongers’ (golpistas) and an ‘enemy of the government’.[6]
[6] Immigration and Refugee Board of Canada, Venezuela: information on the political party Justice First (Primero Justicia), including membership procedures, structure and leadership at the national level and in Maracaibo (2014 - May 2016), VEN105518.E, 11 May 2016
I do not consider the distinction between the applicant being a supporter or member of the Justice First party to be significant. He has never claimed to hold any position of significance or public profile in this party. I accept that he was a supporter of the Justice First party and agrees with the party aims. I accept that the applicant genuinely holds a political opinion in opposition to the Maduro government.
[Employer 2]
I accept that the applicant was employed with [Employer 2] between August 2013 and April 2015, initially for a short-term [role] and subsequently as [Position 2]. He has provided a letter [confirming] his employment and there is no reason to not accept this as genuine. His evidence regarding his employment [has] been consistent and detailed and is supported by the written and oral evidence of [Mr A]. I accept that the applicant has provided a plausible explanation for his ability to secure employment with [Employer 2], despite being on the Maisanta database.
The ALBA or ‘Bolivarian Alliance for the Peoples of Our America’ (previously the Bolivarian Alternative of the Americas) was conceived by then President Chavez and came into effect in December 2004. ALBA is a regional bloc that aims for social, political, and economic integration in Latin America and the Caribbean, in the alternative to the US-led Free Trade Area of the Americas (ALCA). Since its founding in Cuba in 2004, ALBA has grown from 2 to 8 members (Antigua and Barbuda, Bolivia, Cuba, Dominica, Ecuador, Nicaragua, Saint Lucia, Saint Vincent and the Grenadines, and Venezuela) with 3 observer countries: Haiti, Iran and Syria.[7]
[7] Americas Quarterly, Hirst JD, A Guide to ALBA
To fund its social projects, the ALBA created a bank with offices in Venezuela and Cuba, and an initial $1 billion in resources, as well as a regional trade currency called the Sistema Único de Compensación Regional or SUCRE to replace the US dollar. The SUCRE entered into use in 2010 and is used for government-to-government exchanges. Nicolas Maduro was previously the Bank’s President, while also serving as Venezuela’s Foreign Minister (2006 to 2013).[8]
[8] Americas Quarterly, Hirst JD, A Guide to ALBA
I accept that the applicant’s employment was terminated in April 2015 due to a background check revealing his inclusion on the Maisanta database. He claims that he subsequently came under investigation [when] concealed listening devices were located in the [offices] in early 2016. Taking into account the photographic evidence and [Mr A’s] written and oral evidence, I accept as credible that listening devices were found in the [offices] in early 2016, leading to a joint investigation by the [employer] and the [an agency].
I find it plausible that the applicant would have come under some degree of scrutiny given that he held a senior position of trust [until] April 2015 and had been identified as an opposition supporter. I accept that [Mr A] was questioned in early 2016 (prior to his departure for [Country 2] in April 2016) regarding the applicant’s conduct. However, I have some concerns with the applicant’s claims that he was under ‘surveillance’ and in fear for his life due to an [investigation].
I have placed no weight on the inconsistency in his statutory declaration dated 21 January 2020 stating that he was never the subject of any investigation by the authorities. I accept his explanation to the Tribunal that he was referring to the absence of any official criminal investigations.
Aside from [Mr A] being questioned in early 2016, there is no evidence of any active surveillance or investigative action being taken against the applicant between early 2016 and his departure for Australia in February 2017. The applicant was not in hiding during this period, rather he was living openly in [City 1] including making multiple TV and radio appearances. He did not receive any contact or experience any harm or threats of harm during this period from the [workplace] or anyone affiliated with the [workplace] and departed lawfully via the airport in Caracas.
I also have concerns that he would contact [Employer 2] in 2018 seeking an updated letter confirming his employment if he was under active [investigation]. I have taken into account his explanation to the Tribunal that he required this letter for the purposes of his [visa]. However, I do not find this convincing given he had an employment letter issued in August [2015], a copy of which was submitted to the Department.
Carnet de la Patria
The applicant claims that from mid-2015 until his departure in February 2017 he was unable to access the government food distribution system and was refused a Carnet de la Patria because of his support for the opposition. This generally accords with country information discussed below.
Venezuela is experiencing one of the worst economic and political crises in its history. During Maduro’s tenure from April 2013, hyperinflation set in and supermarket shelves emptied. Venezuelans’ socio-economic status as of 2015 was reported to have dropped to 1975 levels.[9] After nearly two decades of ‘unsustainable rentier populism’, the government had ‘made poverty a state policy, discouraged private initiative and the work ethic, wrecked the economy, depleted the nation’s financial reserves and heavily mortgaged its future revenues, sunk public-service ethics in a morass of corruption, and ended up by suspending democracy’.[10] US-based academic economist Steve Hanke has annually since 2014 rated Venezuela as the world’s most miserable economy, deriving from high inflation, steep borrowing costs and high unemployment.[11]
[9] US Congressional Research Service, Venezuela: Background and U.S. Policy, CRS Report R44841, 14 June 2017; Bertelsmann Stiftung’s Transformation Index, BTI 2018 Country Report: Venezuela, December 2017
[10] Bertelsmann Stiftung’s Transformation Index, BTI 2018 Country Report: Venezuela, December 2017
[11] Forbes, Hanke's Annual Misery Index: The World's Saddest (And Happiest) Countries, 28 February 2018,
Venezuela's economy has experienced perhaps the most severe hyperinflation in the region’s history. People face widespread shortages of food, consumer goods and medicine. According to National Surveys on Living Conditions for 2020 and 2021, 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.[12]
[12] Amnesty International, The State of the World’s Human Rights, 6 April 2021; Amnesty International, 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, 21 July 2021
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 (CLAPs), using both the military and political organisations affiliated with the ruling United Socialist Party of Venezuela (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.[13] According to a 2021 Amnesty International report, food distribution systems such as CLAPs, ‘continued to fail to meet nutritional needs and operated according to politically discriminatory criteria’.[14]
[13] International Crisis Group, Watch List 2017, Special Report Nº3, 24 February 2017
[14] Amnesty International, The State of the World’s Human Rights, 6 April 2021
On 29 December 2016 President Maduro introduced the Carnet de la Patria (or Homeland card); an electronic card which would initially serve to ration and distribute the food sold by the CLAPs and social missions. The process to obtain the Carnet de la Patria commenced from 20 January 2017.[15] As discussed below, there are reports that the Carnet de la Patria is used to discriminate against those who do not support the government.
[15] Perfil, Maduro launched the "Carnet de la Patria", which will regulate the access to food, 5 January 2017
I accept that the applicant was unable to register in the government-controlled food distribution system on the basis of his political opinion against the government. I accept that he and his wife were called ‘opposition scum’ and refused access to subsidised foods and other goods. However, given the timing of his departure from Venezuela and the introduction of the Carnet de la Patria, I find that he did not actually apply for this card in its current form.
Refugee assessment
For the below reasons, I am satisfied that there is at least a real chance, being a possibility that is not remote or far-fetched,[16] that the applicant will face harm amounting to serious harm in the reasonably foreseeable future if he were to return to Venezuela. This is based on a cumulative assessment of his accepted claims, namely his anti-government political opinion, previous employment with [Employer 2], his return as a failed asylum seeker and his inability to obtain a Carnet de la Patria without concealing or modifying his political opinion.
[16] Chan Yee Kin v MIEA [1989] HCA 62

While Venezuela is formally a multiparty constitutional republic, for over a decade political power has been concentrated in a single party, the PSUV, with an increasingly authoritarian executive exercising significant control over the legislative, judicial, citizens’, and electoral branches of government. Venezuela does not function as a representative democracy.[17]
[17] Freedom House, Freedom in the World 2019 - Venezuela, 5 February 2019; United States Department of State, 2023 Country Reports on Human Rights Practices – Venezuela, 22 April 2024
According to Freedom House, the authorities have closed virtually all channels for political dissent, supplanting the National Assembly in 2017 with a National Constituent Assembly serving the executive’s interests, restricting civil liberties and prosecuting perceived opponents without regard for due process.[18] Human Rights Watch similarly reported that no independent government institutions remain to check executive power. The government stripped power from the opposition-led legislature and represses dissent through often-violent crackdowns on street protests, jailing opponents and prosecuting civilians in military courts. Maduro and his predecessor Chavez stacked the courts. 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.[19]
[18] Freedom House, Freedom in the World 2019 - Venezuela, 5 February 2019
[19] Human Rights Watch, Human Rights Watch World Report 2019, 17 January 2019
According to the US Department of State, the Maduro government restricted participation in the May 2018 presidential elections so that they ‘were not free or fair’, violently supressed peaceful demonstrations, held political prisoners, was pervaded by corruption, and took no effective action against officials who committed human rights abuses. Maduro’s re-election in May 2018 was not recognised by many American and European Union (EU) governments.[20]
[20] United States Department of State, Country Reports on Human Rights Practices for 2018 - Venezuela, 13 March 2019
A presidential election was recently held on 28 July 2024. Pre-election polls favoured the opposition candidate Edmundo González, who was representing an alliance of opposition parties known as the Unitary Platform.[21] Days after the election, the National Electoral Council, which is loyal to Maduro’s ruling PSUV, officially declared him the winner, handing him his third six-year term. The head of the National Electoral Council, Elvis Amoroso - who is a close ally of Mr Maduro - said that with 80 per cent of ballots counted, President Maduro had 51 per cent of the vote, compared to 44 per cent for Edmundo González. The Venezuelan opposition dismissed the announcement as fraudulent and promised to challenge the result. There have since been several demonstrations in the streets across the country.[22]
[21] Americas Society/Council of the Americas, Explainer: Venezuela’s 2024 Presidential Elections, 11 July 2024
[22] Associated Press, Venezuelan opposition says it has proof its candidate defeated President Maduro in disputed election, 30 July 2024; BBC News Online, Venezuela’s Maduro declared winner in disputed vote, 29 July 2024
According to a 2017 report from the Refugee and Immigration Board of Canada, the treatment of failed refugee claimants who return to Venezuela depends on the person’s situation, including the reasons why they left the country, their role or occupation, and the nature of the conflict with the government. According to one source, a lawyer or judge who leaves Venezuela because they ‘are literally on the wrong side of the regime’ could face difficulties upon their return, such as being monitored. In the case of a person who worked for the government but not in a politically sensitive area, they might not be monitored when they return, but they might not be able to find a job in the same sector or within the government.[23]
[23] Immigration and Refugee Board of Canada, Venezuela: Treatment by the authorities and progovernment groups of failed refugee claimants who return to the country (2016-December 2017), 5 January 2018
While I have not accepted that the applicant was under active surveillance or investigation in connection with his employment with [Employer 2] prior to his departure, I accept that he came under scrutiny as part of [joint] investigation with [an agency]. I accept that his work with [Employer 2] can be characterised as politically sensitive. In conjunction with the manner of his return as a failed asylum seeker whose name is on the Maisanta database and the current political instability, I find that there is at least a real chance that he could be of sufficient adverse interest to the authorities on return to warrant detention for further questioning. There are credible reports that arbitrary detention for political activities is common in Venezuela, as is serious abuse of detainees, particularly those detained on political grounds.[24]
[24] United States Department of State, 2023 Country Reports on Human Rights Practices – Venezuela, 22 April 2024; Amnesty International, Silenced by Force. Politically-Motivated Arbitrary Detentions in Venezuela, 26 April 2017; United Nations Human Rights Council, Report of the independent international fact-finding mission on the Bolivarian Republic of Venezuela, 15 September 2020
I also find there to be a real chance that, unless he were to conceal or modify his political opinion, the applicant would be unable to obtain a Carnet de la Patria if he were to return to Venezuela. Following the introduction of the Carnet de la Patria there was immediate adverse reaction that the government was preparing to increase social control and retaliation against dissent. Opposition political leaders said the card was a means to collect information to limit political activism.[25]
[25] Panam Post, Avendaño O, Homeland card: the new food rationing in Venezuela, Avendaño O, 29 December 2016; Freedom House, Freedom on the Net 2017 - Venezuela, 14 November 2017
According to a report of the European Asylum Support Office, while the Tascón list and the Maisanta program had been favoured during the Chávez era for discrimination and persecution on political grounds, during the Maduro government the monitoring and discrimination tool most used is the Carnet de la Patria. The report indicates that monitoring of low-profile targets is carried out by armed colectivos and ‘boliches’ (the pro-government Patriotic Forces of National Liberation), and that ‘access to government databases by colectivos ‘takes place sui generis rather than officially’.[26]
[26] European Asylum Support Office, Venezuela Country Focus: Country of Origin Information Report, August 2020
According to sources cited in a 2017 Immigration and Refugee Board of Canada report, the Venezuelan authorities exclude citizens opposing the Maduro government from food aid distribution; Venezuelan authorities rely on the Carnet de la Patria to deliver humanitarian aid to citizens on the basis of ‘loyalty’ to the regime; there are reports that citizens who sympathise with the opposition are denied social services such that the Carnet de la Patria is regarded by many as a means of government control; and human rights groups believe that the Maduro government uses the Carnet de la Patria to monitor the populace and ‘allocate scarce resources to his loyalists’.[27] An October 2021 report by the UN Human Rights Office found there to be continued reports of some persons allegedly being denied food assistance on political grounds, for criticism of the government.[28]
[27] Immigration and Refugee Board of Canada, Venezuela: Treatment of citizens by the authorities based on whether or not they participate in anti-government protests, including whether some are more targeted than others and for what reasons; whether access to social security programs may be affected by political activities (2017–January 2021), VEN200429.FE, 3 February 2021
[28] United Nations Human Rights Council, Situation of human rights and technical assistance in the Bolivarian Republic of Venezuela, 21 October 2021
A report from the Caracas Chronicles on the experiences of Venezuelans in Caracas registering for the Carnet de la Patria in 2017 indicates that applicants are questioned about any social media accounts, whether they are part of any Government Missions and which political party they belong to or support. The process was carried out by members of the ‘Robert Serra Brigades’, a local pro-government group.[29]
[29] Caracas Chronicles, Hernandez C, Getting the Carnet de la Patria, 5 April 2017
A March 2017 article on Venezuelan website Acceso Libre stated that, to obtain the Carnet de la Patria, a citizen had to provide, not only basic information such as their address and date of birth, but social and political information, such as membership of a certain party. In some places, the registration was carried out by communal councils, that is, ordinary people.[30] The NGO ‘Transparency Venezuela’ reported in early 2018 that some of the data asked for at the time of the registration were: identity card number, social networks (Twitter, Facebook and Instagram), belonging to a social movement and belonging to a political party or other organisations.[31]
[30] Acceso Libre, The homeland card and the insatiable thirst for data of the Venezuelan government, Diaz M, 3 March 2017
[31] Transparency Venezuela, Carnet de la Patria, Revolutionary apartheid, 2018
According to a 2020 report of the US State Department, applicants for the Carnet de la Patria are required to present ‘proof of political affiliation’ and answer questions about their social service benefits.[32] The most recent US State Department report notes that China reportedly continues to provide Maduro representatives with technology to monitor citizens’ social, political, and economic behaviour through the Carnet de la Patria. As the card is required to obtain social services, including pensions, medicine, food baskets, and subsidised fuel, citizens had little choice other than to obtain and use the card.[33] Resources and services available via the Carnet de la Patria include some as basic as food, hygiene products, treatment for chronic illnesses and cancer, vaccinations, housing, subsidised gasoline, education, and programs for people with disabilities, among many others.[34]
[32] US Department of State, 2020 Country Reports on Human Rights Practices, March 2021
[33] United States Department of State, 2023 Country Reports on Human Rights Practices – Venezuela, 22 April 2024
[34] Refugee and Immigration Board of Canada, Venezuela: The Homeland card (carnet de la patria), including issuance procedures, usage and physical characteristics, extent to which homeland cards have been distributed, VEN106113.E, 18 May 2018
Considering the above, I find that the applicant is likely to be refused a Carnet de la Patria for reasons of his political opinion. I accept that he cannot be expected to modify or conceal his genuine political opinion in order to avoid persecutory harm. I note that the delegate considered the applicant’s previous employment with the government-owned [Employer 2] to indicate that he did not hold strong political convictions and would be able to obtain the Carnet de la Patria if he wished. I have taken a different view and do not consider the applicant’s employment with [Employer 2] to diminish his political convictions. I accept that he took the role for financial reasons, did not support the government’s policies and did not voluntarily or willingly participate in pro-government marches or other events.
I find that without a Carnet de la Patria the applicant would be unable to access a range of subsidised basic goods and services as outlined above, including foods, medicines and health care. I accept that he may be able to obtain some necessary goods and services via other means. However, given the current economic situation in Venezuela as discussed above, I find that denial of access to subsidised essential goods and services for reasons of the applicant’s political opinion is capable of amounting to persecution involving serious harm as it is likely to threaten his capacity to subsist. I accept that he would be prevented from securing government roles given his inclusion on the Maisanta database, that his family [business] is no longer operating and his house in [City 1] has been acquired by colectivos.
I am satisfied that the applicant’s political opinion is the essential and significant reason for the persecution as required by s 5J(4)(a) and that the persecution involves systematic and discriminatory conduct as required by s5J(4)(c) as it would be targeted toward him for reasons of his political opinion and is non-random. I find the persecution to involve serious harm as required by s 5J(4)(b), including a threat to his liberty, significant physical harassment or ill-treatment and/or significant economic hardship or denial of access to basic services that would threaten his capacity to subsist.
As the persecution emanates from the State, I find that the real chance of persecution relates to all areas of Venezuela as required by s 5J(1)(c) of the Act and that effective protection measures, as defined in s 5LA, would not be available to the applicant. I find that the applicant could not take reasonable steps to modify his behaviour to avoid a real chance of persecution. Such modifications would fall within the exceptions in s 5J(3) of conflicting with a characteristic that is fundamental to his identity or conscience or altering or concealing his true political beliefs.
For the above reasons, I find the applicant has a well-founded fear of persecution and is a refugee within the meaning of s 5H(1) of the Act.
Protection in a third country
Under s 36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
I acknowledge that the Union of South American Nations (UNASUR) provides for entry/residence arrangements for Venezuelan citizens in other UNASUR member countries (currently Bolivia, Guyana and Suriname). Under an agreement made in December 2006, a citizen of a UNASUR country is permitted to enter another UNASUR country as a tourist without permission to work for up to 90 days using only their national identity card rather than a passport.[35] Ongoing residence beyond 90 days would require an application for a visa and is therefore dependent on the discretion of the authorities of the third country.
[35] Center for Economic and Policy Research, Toward a New UNASUR: Pathways for the Reactivation of South American Integration, Guillaume Long and Natasha Suñé, 18 October 2022; Fernando Ayala, Meer, Union of South American Nations Awaiting its resurrection, 21 April 2021; Peoples Dispatch, RUNASUR, a new Latin American regional integration mechanism, created in Bolivia, Peoples Dispatch, 27 April 2021
I find that permission to enter another UNASUR country for 90 days as a tourist does not amount to a right to enter and reside for the purposes of s 36(3) of the Act. Based on the available evidence, I find that the applicant does not have a right to enter and reside in a third country and s 36(3) is therefore not applicable.
Conclusions
For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion in s 36(2)(a) of the Act.
I am satisfied that the second applicant is the applicant’s wife and is a member of the same family unit as the applicant for the purposes of s 36(2)(b)(i) of the Act. It follows that the second applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the applicant satisfies s 36(2)(a) of the Act; and
(ii)that the second applicant satisfies s 36(2)(b)(i) of the Act on the basis of membership of the same family unit as the applicant.
Mia Bailey
Member

ATTACHMENT - Extract 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.
…

[2024] AATA 4188

2 August 2024

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