2006374 (Refugee) - [2025] ARTA 1151

2006374 (REFUGEE) [2025] ARTA 1151 (21 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2006374
Tribunal:General Member M Bailey
Date:21 January 2025

Place:Brisbane
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act

Statement made on 21 January 2025 at 5:27pm
CATCHWORDS
REFUGEE – Protection Visa – Venezuela – political opinion – a person who does not support the government – threats and harassment from local chavistas – fear of persecution on the basis of political opinion is well-founded – satisfied that the applicant is a person in respect of whom Australia has protection obligations – decision under review remitted

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 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 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the delegate) on 25 March 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 12 July 2018. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act.
The review application was lodged on 30 March 2020 with the former Administrative Appeals Tribunal (the AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant was represented in relation to the review. She appeared before the Tribunal, accompanied by her representative, on 20 January 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
BACKGROUND
The applicant, a [age]-year-old female, first arrived in Australia as the holder of a Student (TU-570) visa on [date] July 2009. She departed Australia in late December 2017 for a trip [to] visit her family, returning to Australia on [date] January 2018. She has not returned to Venezuela since departing in 2009.
The applicant presented her Venezuelan passport to the Department of Home Affairs (the Department) in support of her protection visa application. I sighted 2 original expired Venezuelan passports at the Tribunal hearing. I find that the applicant is a citizen of Venezuela, and that Venezuela is her receiving country for the purposes of assessing her claims for protection.
Evidence before the Department
As part of her protection visa application, the applicant provided a statutory declaration dated 26 April 2019 together with several supporting documents. Relevant information from these documents is outlined below:
i.The applicant was born and resided in Puerto Cabello, Carabobo state.
ii.Her father passed away when she was around [age]-year old. Her mother’s usual place of residence is Puerto Cabello.
iii.She has 2 older brothers: the oldest resides [overseas] and the second oldest resides in Australia as an Australian citizen. Another younger half-brother currently resides in Australia on a Student visa.
iv.From around 2002, she became involved in anti-government activities due to the political situation in Venezuela. She attended meetings with El Comite de Orgainzacion Politica Electoral Independiente (Committee for the Organization of Independent Electoral Politics or ‘COPEI’) and attended some small peaceful protests in Puerto Cabello. She was too fearful to attend larger protests.
v.In 2004 she voted in the Presidential recall referendum to remove Chavez from power, resulting in her name being included on the ‘Tascon list’. This affected her ability to secure employment after completing her university degree in 2004.
vi.In 2008 she started receiving threats from local chavistas (gangs who supported Chavez) because of her political views. She sought help from the police, but they could not assist her. In late 2008, she travelled [overseas] for one month to visit her oldest brother. After returning to Puerto Cabello, she was threatened again by local chavistas and started making arrangements to come to Australia.
vii.While in Australia, she has voted in the Venezuelan National Consultation on 16 July 2017 and posted some anti-government material on social media (extracts provided). She has not been more politically active on social media because she is afraid.
The applicant attended 2 interviews with the Department – on 3 June 2019 and 12 August 2019 – accompanied by her representative. Following the second interview, the representative provided written submissions addressing concerns raised by the delegate regarding the applicant’s right to enter and reside in a third country under the Union of South American Nations (UNASUR) or the Southern Common Market (MERCOSUR).
In refusing the application, the delegate accepted the applicant’s claims regarding threats and harassment from local chavistas. However, given the significant lapse of time and lack of more serious action taken while she was in Venezuela, the delegate was not satisfied this would give rise to a real chance or risk of future harm. The delegate further considered the almost 9-year delay in applying for protection to undermine the applicant’s claims to have departed Venezuela because she feared for her life.
Regarding her involvement with COPEI, the delegate accepted that the applicant had ‘sporadically’ attended meetings and rallies as part of this group but was not satisfied she had regularly attended COPEI events for a period of 7 or 8 years. The delegate accepted that since arriving in Australia the applicant had attended a gathering in opposition to the Venezuelan government and made limited social media postings critical of the government. The delegate found the applicant’s political activities to be commensurate with low level opposition support and expressed concerns regarding the applicant’s lack of knowledge of political events in Venezuela since arriving in Australia. The delegate was not satisfied that the applicant’s political opinion was fundamental to her identity, such that she would engage in anti-government activities on return to Venezuela of a nature that would result in a real chance of harm.
The delegate accepted that the applicant had signed the 2004 recall referendum, resulting in her name being on the Tascon list and that this ‘identifies her as someone who holds a political opinion against the government’. However, the delegate was not satisfied that her inclusion on the Tascon list would result in a real chance or risk of serious or significant harm. The delegate noted that there was no information to indicate that the authorities are using the Tascon list to target individuals.
Evidence before the Tribunal
Prior to hearing, the applicant submitted a further statutory declaration dated 13 January 2025 together with supporting documents. In summary, she states that she has now lived in Australia for more than 15 years and the uncertainty of her status following the delegate’s refusal decision has had an adverse impact on her mental and physical health. She addresses various findings in the delegate’s refusal decision and reiterates that her protection claims are based on a fear of persecution for reasons of her political opinion as a person who does not support the government.
The expression of her political views is evidenced by her inclusion on the Tascon list, her involvement in opposition activities in Venezuela in the form of attendance at COPEI meetings and demonstrations and her voting in the National Consultation and posting of political material on social media while in Australia. Extracts of the applicant’s social media postings from April 2019 consisting of comments critical of the Venezuelan government and the human rights situation in Venezuela are provided.
In her oral evidence to the Tribunal, the applicant confirmed that all of her brothers continue to reside outside Venezuela. Her mother and a few aunts are residing in Carabobo state. Her mother has never applied for the Carnet de la Patria as this requires being a supporter of the government. Her mother keeps a low profile to avoid any problems. The applicant and her siblings regularly send money to her mother to enable her to purchase basic food and other items.
The applicant was asked about her reasons for signing the 2004 recall referendum and how this impacted on her while in Venezuela; her response to the delegate’s finding that her political opinion is not fundamental to her identity; and what she fears would happen if she were to return to Venezuela in the current political circumstances. Her responses were consistent with her previous evidence to the Department and her pre-hearing evidence to the Tribunal. She referred to fearing serious harm in Venezuela as someone who does not support the government and referred to pervasive monitoring by the authorities of any anti-government activities or communications. She is careful to not speak openly about such issues during communications with her mother.
The applicant’s representative made oral submissions referencing the increase in political repression in Venezuela following the recent disputed re-election of Maduro as president, including targeting of low-level opposition supporters and those who generally do not support the government.
REASONS AND FINDINGS
The issue in this case is
whether the applicant engages 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 set aside and remitted for reconsideration.
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 Department’s ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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 accept the applicant’s claims to be overall credible. They have remained generally consistent throughout the primary and review process and accord with independent country information, including that discussed in the delegate’s decision and below.
I acknowledge the delegate’s concern regarding the significant delay in applying for protection. This issue was addressed by the applicant in her statutory declaration to the Tribunal in which she stated that, at the time of her arrival on a Student visa, she did not think she would need to remain indefinitely in Australia. However, by 2017 she realised that the situation in Venezuela was unlikely to improve, with the government becoming more controlling and powerful. I note that the applicant’s Student visa remained valid until July 2018. In the circumstances, I have placed no adverse weight on the delay in lodging the protection visa application. In any event, as discussed below, whether the applicant had a well-founded fear of persecution at the time of her departure from Venezuela is not the relevant question for the purposes of assessing whether she currently engages protection obligations.
I accept that the applicant became involved with COPEI from around 2002. She has consistently claimed that this was limited to attending some meetings and participating in small rallies or street protests in her local area. COPEI, also known as the Social Christian Party, was a Christian democratic political party founded in 1946. Together with the Democratic Action party, COPEI was one of the two principal political parties in Venezuela in the second half of the twentieth century. In protest toward the Chavez government, COPEI did not participate in the 2005 elections and no longer has representation in the legislature.[4]
[4] Encyclopedia.com: Social Christian COPEI Party, Social Christian Copei Party | Encyclopedia.com
I accept that from 2008 the applicant came to the adverse attention of local chavistas – apparently for reasons of her involvement with COPEI or her lack of support for the government – and was subjected to several threats. As outlined in the delegate’s refusal decision, these claims are generally supported by country information.
I accept that the applicant signed the 2004 referendum in support of recalling the presidency of Hugo Chavez and the subsequent publication of this information adversely affected her employment prospects. According to country information, the details of all signatories of the recall referendum 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.[5]
[5] Country information as cited in the delegate’s refusal decision
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.[6]
[6] 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 signed the Venezuelan National Consultation in Brisbane in July 2017. Reports indicate that this was an opposition-organised referendum which included a vote on the government’s plans for a new constituent assembly with the power to scrap the National Assembly and rewrite the constitution. Approximately 6.5 million people voted within Venezuela and almost 700,000 at polling stations abroad.[7]
[7] BBC News, Venezuela referendum: Big show of support for opposition, 17 July 2017
Based on the supporting documentary evidence, I accept that the applicant has posted some material critical of the Maduro government on social media while in Australia. While I acknowledge that this is limited in terms of volume and content, I accept that it is consistent with the expression of views critical of the government.
Considering all the above, I accept that the applicant genuinely holds a political opinion in opposition to the Maduro government and has previously expressed her views in Venezuela and while in Australia. While I agree with the delegate that the applicant’s previous involvement is indicative of a low-level general opposition supporter, I do not consider that this necessarily means that her political opinion is not fundamental to her beliefs. I accept that she previously felt fearful of being more actively involved in anti-government political activities, such that to some degree she has modified her behaviour to avoid harm. I accept that, if it were not for a fear of persecution, she would wish to continue to express her political opinion against the government in a similar manner if she were to return to Venezuela.
Refugee criterion assessment
I acknowledge that the applicant did not previously experience serious harm in Venezuela for reasons of her political opinion. However, more than 15 years have elapsed since her departure. As discussed below, during this time, circumstances in Venezuela have significantly deteriorated. My assessment is forward looking and involves consideration of whether the applicant would face a real chance of serious harm in the reasonably foreseeable future if she were to return to Venezuela.
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,[8] that the applicant will face harm amounting to serious harm in the reasonably foreseeable future for reasons of her political opinion if she were to return to Venezuela.
Political situation
[8] 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 United Socialist Party of Venezuela (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 and is experiencing one of the worst economic and political crises in its history.[9]
[9] 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.[10] 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.[11]
[10] Freedom House, Freedom in the World 2019 - Venezuela, 5 February 2019
[11] 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.[12] 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.[13]
[12] United States Department of State, Country Reports on Human Rights Practices for 2018 - Venezuela, 13 March 2019
[13] 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
In a widely disputed election result in July 2024, Maduro was declared the winner over opposition candidate Edmundo González, giving Maduro a further six-year term as president.[14] The opposition has dismissed the outcome as fraudulent, and several countries have refused to recognise the result. In response, the government expelled diplomatic personnel from 7 Latin American countries. Experts who have studied the voting results have described it as the ‘the largest electoral fraud in Latin America’s history’.[15]
[14] Americas Society/Council of the Americas, Explainer: Venezuela’s 2024 Presidential Elections, 11 July 2024
[15] UN Human Rights Council, Detailed findings of the independent international fact-finding mission on the Bolivarian Republic of Venezuela, 14 October 2024; 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; The Guardian, Rogero T, Evidence shows Venezuela’s election was stolen – but will Maduro budge?, 7 August 2024
On 29 July 2024, thousands of citizens took to the streets throughout Venezuela, protesting against the opacity of the electoral body and demanding transparency. The protests were met with violent repression by government security forces and government-aligned colectivos, resulting in 25 deaths and hundreds of persons injured or detained.[16]
[16] Sources cited in UN Human Rights Council, Detailed findings of the independent international fact-finding mission on the Bolivarian Republic of Venezuela, 14 October 2024
In September 2024, González left Venezuela to seek asylum in Spain, following serious criminal accusations by the government. According to statements by opposition leader Maria Corina Machado, González was forced to leave because his life was in danger.[17] In early January 2025, Machado was reportedly briefly arrested and then freed after addressing a protest rally on the eve of Maduro's presidential inauguration. According to the opposition, Machado was ‘violently intercepted’ in eastern Caracas after the motorcycle convoy in which she was riding was shot at.[18]
[17] The Guardian, Venezuela opposition leader Edmundo Gonzalez lands in Spain after fleeing country, 9 September 2024
[18] BBC News, Venezuela opposition leader arrested then freed after protest rally, 10 January 2025
According to the October 2024 UN Fact-Finding Mission, arbitrary detentions of real or perceived opponents of the government increased during the election campaign and particularly in the days following the election. In response to post-election protests, the government launched a campaign of mass and indiscriminate detentions, while continuing to target opposition and civil society actors. In all cases documented and investigated by the Fact-Finding Mission, the persons were detained without warrants, on charges that had no legal basis, and without informing relatives and friends where they were being taken. In many cases, the detentions were the result of anonymous complaints or through electronic applications such as the ‘VenApp’. The mass nature of the detentions and the uncertainty of what awaited the persons detained caused widespread alarm and fear among the population.[19]
[19] UN Human Rights Council, Detailed findings of the independent international fact-finding mission on the Bolivarian Republic of Venezuela, 14 October 2024
According to government figures, by 6 August 2024, 2,229 persons – described by the President as ‘terrorists’ – had been detained. According to the NGO ‘Foro Penal’ 1,542 people had been detained throughout the country between 29 July and 24 August 2024. Most of the people detained in the post-election context were not politicians or persons with a known public profile, as was the case in the period prior to the election. Rather, they were persons who expressed their rejection of and dissatisfaction with the government and the announced election results, many of whom were from working-class neighbourhoods, especially young men.[20]
Carnet de la Patria
[20] UN Human Rights Council, Detailed findings of the independent international fact-finding mission on the Bolivarian Republic of Venezuela, 14 October 2024
Venezuelans 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.[21]
[21] 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 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.[22] According to a 2021 Amnesty International report, food distribution systems such as CLAPs, ‘operated according to politically discriminatory criteria’.[23]
[22] International Crisis Group, Watch List 2017, Special Report Nº3, 24 February 2017
[23] 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. 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.[24] 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’.[25]
[24] 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
[25] 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’.[26] 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.[27]
[26] 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
[27] 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.[28]
[28] 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.[29] 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.[30]
[29] Acceso Libre, The homeland card and the insatiable thirst for data of the Venezuelan government, Diaz M, 3 March 2017
[30] 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.[31] 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.[32] 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.[33]
Assessment
[31] US Department of State, 2020 Country Reports on Human Rights Practices, March 2021
[32] United States Department of State, 2023 Country Reports on Human Rights Practices – Venezuela, 22 April 2024
[33] 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 my factual findings together with the above country information, I am satisfied that the chance of the applicant being harmed in connection with her anti-government political opinion in the reasonably foreseeable future is more than remote and amounts to a real chance. I find this to arise cumulatively from her accepted holding of genuine anti-government views, which she could not be expected to conceal in order to avoid persecution, and the application process to obtain the Carnet de la Patria.
The country information discussed above indicates that targeting of persons holding anti-government views is not limited to persons with a public or high-profile and has increasingly extended to ordinary opposition supporters such as the applicant, particularly since the July 2024 election. Further, I find that if the applicant were to apply for a Carnet de la Patria – without which she would be unable to access a range of subsidised basic goods and services, including foods, medicines and health care – this would increase the chance of her political views coming to the adverse attention of the authorities and local colectivos. The above country information indicates that the registration process is undertaken by members of local colectivos and involves scrutiny of social media accounts and political affiliations. Country information indicates that colectivos act with impunity and are responsible for extra-judicial killings and other acts of violence.[34]
[34] United States Department of State, 2023 Country Reports on Human Rights Practices – Venezuela, 22 April 2024
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 her for reasons of her political opinion and is non-random. I find the persecution to involve serious harm as required by s 5J(4)(b), including threats to the applicant’s life or liberty and significant physical harassment or ill-treatment.
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 her 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 her identity or conscience or altering or concealing her 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 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.
Conclusion
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Act.
Hearing date: 20 January 2025
Representative: Mrs Elizabeth Collins Fischer (MARN: 0601798)
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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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