2102079 (Refugee)

2102079 (Refugee) [2023] AATA 4439 (13 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Elizabeth Fischer (MARN: 0601798)
CASE NUMBER:  2102079
COUNTRY OF REFERENCE:                   Venezuela
MEMBER:Ann Duffield
DATE:13 October 2023
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 October 2023 at 11:08am

CATCHWORDS
REFUGEE – protection visa – Venezuela – political opinion – membership of the Popular Will (Voluntad Popular) Party – anti-Chauvist activity – opposition to Chavist ideology – forced acquisition of apartments – harassed by collectivos – questioned at the airport – credibility concerns – evidence evasive and lacking in relevant detail – delay in seeking protection – Carnet de la patria – current situation in Venezuela – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 48, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
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 on 15 February 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Venezuela applied for the visa on 24 September 2019. The delegate refused to grant the visa on the basis that she was not a person to whom Australia owed protection obligations.
The applicant appeared before the Tribunal on 26 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
The applicant was represented in relation to the review.
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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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, 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is a citizen of Venezuela born in [year]. There was no evidence before the Department to indicate that she is not who she claims to be. Equally, there is no evidence before the Tribunal to question her identity or the authenticity of her identity documents. The Tribunal has therefore conducted this assessment on the basis that the applicant is who she claims to be and that Venezuela is the receiving country.
The applicant provided the Tribunal with a copy of the delegate’s decision along with her application for review.
The applicant provided evidence that she is suffering from hypertension and her representative has stated that she may also have PTSD however has provided no medical evidence to support that diagnosis.
The applicant arrived first arrived in Australia on a tourist visa in November 2016 she departed in February 2017. She again returned [in] May 2018 and departed six months later [in] November 2018. She returned shortly afterwards [in] November 2018 and departed again [in] March 2019. She returned [in] April 2019 and has not departed since that time.
The applicant has two children currently resident in Australia; one is a student, and other daughter is a permanent resident. She also has a grandchild born in Australia in [year].
In September 2019 she applied for a protection visa and was interviewed in relation to that application in December 2020. The delegate refused the application in February 2021.
The applicant claims to have anti-government views and that the Maduro government is a dictatorship. She claims to have participated in anti-government political protests from 2001 to 2018. She claims to be a member of the Popular Will (Voluntad Popular) party in Venezuela and claims to have supported this party since 2001. The delegate noted that the origins of this party date back to 2004 and in 2009 the movement was called Popular Will. It was recognised as a political party in January 2011.
The applicant further claims to have been harassed and threatened by “collectivos” in February 2018 when she travelled back to Venezuela from Australia. She claims that the family apartment has been taken over by collectivos after she left in May 2018. She claims to have worked for [Employer 1] for 26 years and was collecting her pension until her departure.
Before the Tribunal
In her submission to the Tribunal the applicant provided a number of documents including the following:
a.Copy of her passport
b.Evidence of her employment and some payslips from Venezuela
c.Medical evidence of hypertension
d.Letter from Voluntad Popular dated 7 October 2019 – the letter states that the applicant was a member of the Popular Will Party organising youth groups in their sectors to carry out peaceful activities and non-violent demonstrations against Nicolas Maduro’s dictatorship between the periods 2001-2018.
e.Letter from Voluntad Popular dated August 2021 – confirming the above
f.Document showing ownership of the apartment in [City 1] where she, her mother and sister live/lived – her children are identified as co-owners. The document was executed in around July 1990
g.A statement to the police regarding an attack on her outside her apartment in February 2018 – the report was made at the police station by the applicant. She reports an incident of people firing guns near her apartment and yelling her name and the names of other neighbours the previous week accusing them of being members of the opposition. On the day of the report she states that a person jumped at her and hit her in the legs and her back with great force. She fell on the floor and has bruises. She was jumped from behind and did not know if it was a man or a woman. She reports to the police that she accuses the collectivos.
h.Copy of voter registration dated October 2023 allowing the applicant to vote in Venezuelan elections whilst in Australia
i.Some photographs of the applicant, undated, allegedly at a polling station in 2016
j.Country information regarding the ban on people returning to Venezuela during 2021 because of Covid-19
In her statutory declaration dated 20 September 2023, the applicant claims that while she was [working for Employer 1], she was under a lot of pressure to impose Chavista ideology [at work] from around 2001. She states that she refused and in 2003 because of the pressure she was placed under by this decree her blood pressure became so high that she had to be admitted to hospital. She retired from [Employer 1] in 2006. She was also called a traitor for not participating in pro-government rallies and did not vote in the presidential recall referendum in 2004. She worked as a [Occupation 1] for [Employer 2] from July 2006 to July 2010 then as a self-employed [Occupation 2] from July 2010 until May 2017. She worked as an [Occupation 3] in a [workplace] prior to her departure for Australia.
She states she was an active member of the Voluntad Popular from 2001 to 2018. She states that she attended many protests including in 2001, 2002 and 2014. She did not vote for Chavez and was frightened because a lot of people had already lost their jobs. She voted against Nicolas Maduro in 2016. The applicant did not claim to be involved in the organisation of any of these protests but only participated. In 2014 she and her mother and sister attended a protest against chronic food shortages in her town, [City 1].
The applicant said that at the end of 2017 the communal councils were imposed by the government of Nicolas Maduro to interfere with the activities of residential properties around the city. She said that the communal councils wanted to make decisions for the residents who lived abroad and expropriate the apartments in order to move in families that did not have a home. She states that she decided to become actively involved in the residents committee with other neighbours who were against the decisions made by the communal council, including the decision to take ownership of the apartments of people living abroad.
She said that after several meetings where she gave her opinion, she and other owners began to be harassed by the collectivos that were living around the area. She states that in February 2018 she began getting harassed by collectivos connected with the communal council trying to regulate her building. She claims that they also discovered her records from [Employer 1] where she refused to impose Chavist ideology.
She claims that she became actively involved in the residents’ collective of the building where she has an apartment in around the end of 2017 because there was a decree that the residences of people who moved abroad would be confiscated and given to families that did not have a home. (Her husband transferred the family home to her children [in] around July 1990). It was after this she was harassed and attacked by the collectivos in front of her building. She states that the collectivos would park their motorbikes in front of the [workplace] where she was working and watch her. She will be murdered by the collectivos if she returns to Venezuela.
The applicant claims that the main reason she came to Australia in May 2018 was because she was living in fear. (She came for the birth of her grandchild in [year]).
Country information
The following article published in Reuters on 5 May 2023 indicates that the Venezuelan opposition party Voluntad Popular on Friday named a new candidate for a key presidential primary in October, replacing formerly anti-government leader Juan Guaido who left Venezuela unexpectedly in late April. At a news conference, Voluntad Popular named political coordinator Freddy Superlano, a 46-year-old engineer and critic of President Nicolas Maduro, as its nominee, explaining Guaido could not represent the party from "exile." Venezuelan opposition party replaces Guaido as candidate | Reuters
The United States Department of State released the following information on the state of human rights practices in 2021: Venezuela - United States Department of State
Significant human rights issues included credible reports of: unlawful or arbitrary killings, including extrajudicial killings by regime forces; forced disappearances by the regime; torture and cruel, inhuman, and degrading treatment by security forces; harsh and life-threatening prison conditions; arbitrary arrest or detention by security forces; political prisoners or detainees; serious problems with independence of the judiciary; unlawful interference with privacy; punishment of family members for offenses allegedly committed by an individual; serious restrictions on free expression and media, including violence or threats of violence against journalists, unjustified arrests or prosecutions of journalists, and censorship; serious restrictions on internet freedom; substantial interference with the freedom of peaceful assembly and freedom of association, including overly restrictive laws on the organization, funding, or operation of nongovernmental organizations and civil society organizations; inability of citizens to change their government peacefully through free and fair elections; serious and unreasonable restrictions on political participation; serious government corruption; serious restrictions on or harassment of domestic and international human rights organizations; lack of investigation of and accountability for gender-based violence; significant barriers to accessing reproductive
health; trafficking in persons; crimes involving violence or threats of violence targeting indigenous persons and lesbian, gay, bisexual, transgender, queer, or intersex persons; and the worst forms of child labor.
The UNHCR reports on Venezuela. UNHCR Venezuela Situation Fact Sheet June 2022 - Venezuela (Bolivarian Republic of) | ReliefWeb
The outflow of Venezuelan refugees and migrants remains one of the largest displacement crises in the world. To date, over 6.1 million have left their homes, of which 5 million are in the Americas. There are 199,206 Venezuelans recognised as refugees worldwide and 971,170 pending asylum claims. Over 2.7 million regular stay permits have been granted to Venezuelans since 2014. In support to receiving States, UNHCR improves reception conditions, advocates for legal stay and inclusion, mitigate protection risks and boost access to basic services.
A more recent report Fact-Finding Mission on Venezuela tells the Human Rights Council that human rights violations are continuing in Venezuela, reflecting a policy of repressing dissent - Venezuela (Bolivarian Republic of) | ReliefWeb
Marta Valiñas, Chair of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela, said the Mission had examined the various repression mechanisms used by the State apparatus against persons critical of the Government and the linked repression of civil society, and State structures involved in the commission of human rights violations, as well as the new management directorate of the Venezuelan police. The Mission believed that human rights violations have continued. They were not isolated but reflected a policy of repressing dissent. Venezuela’s oppressive State-run mechanism continued to resort to repressive and hardhanded tactics to try to crush people’s will, giving rise to predominant fear and self-censorship.
Ms. Valiñas said the second part of the investigation focused on the new Directorate of Strategic and Tactical Action of the Bolivarian Police Force. There had been reasonable grounds to believe that the disbanded Specialised Action Forces unit had been involved in extrajudicial killings, including crimes against humanity. The new Directorate of Strategic and Tactical Action had been established in 2022, and the Fact-Finding Mission concluded that it was a de facto continuation of the disbanded Specialised Action Forces. There were 50 positions of leadership in the new group and 10 were occupied by leaders of the former group, named in the Mission’s former reports because it believed they were responsible for committing international crimes. There were allegations that the new group was linked to multiple assassinations and over 300 detentions. These warranted more detailed investigation.
Information from a Washington Post article in 2022 indicates: Venezuela refugee crisis near Ukraine’s in scale but not aid, group says - The Washington Post
Although the flow of refugees appeared to have slowed as the country’s authoritarian government adopted economic reforms and some Venezuelans returned home during the coronavirus pandemic, it has picked up again. At least 753,000 Venezuelans have left since November, the Associated Press reported last week, citing data from the countries receiving the refugees. Venezuelan migrants are new border challenge for Biden administration “Unlike other forced displacement crises around the world, which are the result of armed conflicts, in the case of Venezuela, multiple factors — including insecurity and violence, lack of access to food, medicine and essential services, as well as loss of income, aggravated by the impact of the covid-19 pandemic — continue to figure into Venezuelans’ decision to leave,” UNHCR spokesperson William Spindler said in an email.
The Tribunal hearing
The applicant told the Tribunal that she was currently living with her daughter and her family. Her daughter first arrived in Australia in 2014 as a student as in now a permanent resident. Her son came in 2017 on a student visa and is still studying in Melbourne. She said that she came to visit her daughter and stayed with her in November 2016. She returned to Venezuela in February 2017.
The applicant returned to Australia in May 2018 to visit her daughter again and be here for the birth of her grandchild. When asked if she intended to return to Venezuela at that time she claimed that she did. Asked if she had returned to Venezuela since 2018, she said that she had not. The Tribunal put to the applicant that the records indicate that she had travelled out of Australia on several occasions since her arrival in May 2018. The Tribunal put to her that she departed Australia in November 2018 and returned a week later before departing again in March 2019. Records showed that she returned to Australia in April 2019 and has not departed since. The applicant told the Tribunal that the conditions of her visa meant that she had to depart Australia several times. She said the first time she went to [Country 1] and the second time she departed she went to [Country 2] to visit some of her siblings who live there.

The Tribunal asked the applicant if, when she departed Venezuela for the last time in May 2018, she had an intention to return and she said that she did. The Tribunal asked what happened to her personal possessions that she had left behind in her apartment and she said that her mother and sister used to live there and they looked after her things. She told the Tribunal that they had to leave that apartment because the collectivos and the council harassed and persecuted them and sent another family there to live. Asked if she had any evidence of this the applicant said that they did not. She said that the councils took apartments from people who lived abroad. The Tribunal put to the applicant that her apartment was not vacant but occupied by her mother and sister. She said that they harassed them because of her.
The Tribunal asked the applicant to describe the circumstances surrounding the alleged forced departure of her mother and sister from the apartment. She said that they had time to pack a few things then left through the basement and went into hiding in another city. Asked why they were in hiding the applicant said that they were being persecuted by the collectivos because of her. The applicant told the Tribunal later that they had both returned to [City 1] but were living in a poor area and had not returned to the apartment. Her mother had a stroke and contracted Covid and had to seek medical assistance. She said that they were still in hiding because they are being targeted because of her.
The Tribunal asked the applicant why, if her account of what happened prior to her departure was true, she took so long to apply for protection in Australia. The applicant said that she wanted to wait and seek if the situation would improve. The Tribunal put to the applicant that, in the Tribunal’s mind, her claims were thrown into significant doubt and that perhaps she did not make a protection claim because she just wanted to stay in Australia with her children and grandchild. The applicant denied this stating that she was persecuted and harassed by the collectivos. Asked why her daughter, a permanent resident, did not sponsor her to remain in Australia on a parent visa she stated that she was a refugee and needed protection from the Australian government.
The Tribunal asked the applicant to explain why she feared persecution and could not return to Venezuela.
The applicant said that she had been persecuted since 2001 when the government decided to change the [policy] to introduce indoctrination. She said that she opposed the new [policy] and was being harassed into introducing it in her [employment]. She said that she had also been an active member of Voluntad Poplar from 2001 until she left in 2018.
There was a discussion about the origins of the party and its various iterations over time and the Tribunal is satisfied that the applicant was a member of the party in its various forms for the relevant period.
The Tribunal asked the applicant about the role she played in the party and she said that she was in charge of organising youth groups. Asked for further details she said that organised activities for children and recreational activities for children. She said that she tried to gather medical attention for the children and older people. When pressed for more detail the applicant said that it was just a voluntary organiser and did not have a political role.
The Tribunal pressed the applicant and asked whether there was any particular event or activities that she was involved in that might bring her to the attention of someone that might want to harm her and she said that the collectivos checked up on them and made sure that we were doing what we were told. Asked what year she was referring to the applicant said that she was talking about events in 2017. The Tribunal asked her if anything happened to her prior to that date. The applicant said that she went to a protest march in [location] in 2001. She claimed she was protesting against the [policy] that they were trying to impose.
The Tribunal asked her what form her protest against these measures took, She said that the workers union organised for them to protest against this change to the [policy] and changes to the [Occupation 3] profession and the protest was in relation to that. Asked when she stopped [working], she said she resigned from [Employer 1] due to the harassment of the council in 2006. From 2006-2010 she became a [Occupation 1] then a casual [Occupation 2] until 2017. The Tribunal put to her that despite this alleged harassment of her in the past she was still allowed to [work] until 2017.
The Tribunal asked the applicant if anyone had interfered with her being able to [work] or prevented her from doing so and she said that she was working with [clients]. She said that they had to change their meeting places because the collectivos were following her around.
The Tribunal asked the applicant why they would be interested in following her around and she said that she was a member of the body corporate of her apartment building, and they were watching people who were overseas so they could take over their apartments and she opposed that move. The Tribunal put to the applicant that its understanding was that this issue did not arise until the end of 2017. She said that they were following her because she refused to [implement] the [policy]. She said they came to the [workplace] where she worked and harassed her. She said that they followed her because they didn’t want her to say that she opposed the government.
The applicant said that collectivos were armed groups supportive of the government. She said that they were armed and funded by the government. She said that they intimidate, torture and kill people who are opposed to the government.
The Tribunal put to the applicant that she was suggesting that these collectivos had been following her for 17 years because of her refusal to impose a Chavista [policy] and now were interested in her because they wanted to take her apartment? The applicant confirmed this saying that they were like the mafia and were a pro-government, armed militia and were hunting her down to kill her. She said that they intimidate, and torture people and all opposition people are subject to this treatment.
The Tribunal again asked the applicant to describe her political involvement and what about it would bring her to the attention of the government or others such that they would want to hunt her down and kill her.
The applicant said that she used to organise protests and when pressed for more details said that she started mobilising young people to support protests against the government in 2001, 2002 and 2007. She said the media was shut down. When pressed further she said that there was a protest of people that lived in their building, and she went with them to demonstrate. She said that in 2014 they went out with pots and pans and protested against the government because there was no food. The Tribunal put to her that she organised the people in her building to participate in protests that others organised, and she said that it was a nationwide protest that she helped but she was unable to detail her role, if any, in organising any of the protests.
The applicant told the tribunal that she was also very active in the collective of her building protesting the forced acquisition of apartments. In February 2018 they came to the building with guns and were shouting her name. The Tribunal confirmed with the applicant that until 2014 she was living in the apartment with her mother, sister, son and daughter. The Tribunal asked if any of them were involved in her activities or protests.
The Tribunal noted that the applicant was becoming distressed and asked if she needed a break or an adjournment. She said that she wanted to continue.
The Tribunal asked the applicant if they could provide witness statements and she said that her children were sometimes involved in protests and sometimes went on their own. The applicant said that her son was aware of the attack against her in February 2018 and he also knew about the communal councils. She did not want them to provide statements when asked by the Tribunal and did not want her daughter to join her at the hearing (she was waiting outside the hearing room). She said that she would be more nervous if her daughter attended. The applicant also declined the Tribunal’s suggestion that she ask her mother and sister to provide statements. She said that she was not able to communicate with them and she didn’t want them to come out of hiding to provide a statement. She said that her mother was non-verbal, and she couldn’t contact her sister to enable the Tribunal to speak to her. She said that they were staying in a poor area in the house of a relative. They were not paying rent.
The tribunal adjourned whilst the applicant sought out her daughter to ask if she was willing and able to provide the /tribunal with a statement or other evidence.
When the hearing resumed, the applicant said that her daughter and son were not able to provide information. The Tribunal put to the applicant that if it would be helpful the Tribunal would allow two weeks for that information to be provided.
The Tribunal asked the applicant what would happen to her if she went back to Venezuela, and she said she would be killed. She said that they would detain her, and she would be tortured. She said that the collectivos would kill her. She said she would die if she went back. She said that when she was attacked in February 2018, she thought that she was going to die and that her life was in their hands. The Tribunal was directed to the police report on the incident.
The applicant told the Tribunal that she was detained at the airport when she returned to Venezuela in 2016. She said that she arrived at 1am and she was detained for more than a day and was not provided with any food or water and denied bathroom facilities. They were asking her for money and went through her suitcase. They released her at 6pm. The Tribunal asked the applicant why she thought she had been detained and she said it was because all people opposed by the government are listed. She explained that she believed she had been listed since she opposed the [policy] in 2001.
The Tribunal asked the applicant if she had to return to Venezuela whether she would be able to stay with her mother and sister. She said that they were staying in the house of a relative in a very poor area. She said t hat if she was still alive and able to leave the airport she would have nowhere to go and no means of support. She said she has no pension. She said that the pension stopped being paid after she had been overseas for three months. She says she has no savings or property and no job or investments. She said that the apartment had been transferred to the names of her children after she and her partner separated in 1991.
The Tribunal asked the applicant if she had been politically active in Australia or done or said anything that could be construed as anti-government, and which might bring her to the attention of people who might harm her. The applicant said that she had registered for the upcoming election and didn’t have social media. She said that if she went back she would be considered as someone who was a traitor. If she went back she would be tortured and killed.
The applicant was very distressed and the Tribunal proposed that she provide the rest of her evidence in a written submission. The applicant’s adviser proposed that the applicant continue to provide oral evidence as the hearing was already in progress. The applicant agreed to continue.
The Tribunal asked the applicant what happened to her at the airport, and she said that people from the directorate of national security took her out of the queue and took her and her suitcase to a room. They took everything out of the suitcase and asked her where the money was and then they searched her looking for the money. She said that they asked her questions about where she had been and why she had come back. They asked why she was in Australia and why did she leave the country.
The applicant said that they then left her in the room and locked the door. She said that they came back once at midday to open the door and then she was allowed to leave at around 6pm. She said that she thought they were going to kill her. She said they thought they were going to take her to the place where they kill and torture people. The Tribunal asked the applicant why she thought they were going to take her away when all they asked her about was where her money was. She said that’s what they do to people opposed to them.
The Tribunal asked the applicant if the officers asked her about her political activities or her political view and she said that they didn’t. She said that they took things from her suitcase that they wanted to keep and let her go. She said that she thought they were going to take her away and kill her. The Tribunal asked the applicant whey she thought they wanted to take her away to kill her given that they didn’t seem interested in her political activities and she said that that was that these people do to people who are opposed to them.
The Tribunal put to the applicant that this was the first time that she had mentioned this incident and asked why that was the case. The applicant said that thinking about what happened was very traumatic and she forgot.
There was a discussion about the use of the Carnet de la patria by the regime in tracking residents and citizens of Venezuela. The applicant said that the reason she has never had one is because they can track you with it. She said that anyone who had one was considered aligned with the system and pro Chavist. She said she couldn’t buy medicine at a discount price. The Tribunal put to the applicant that she also claimed that the regime tracked people who didn’t have a card that’s how they put her on a watch list and why she was picked up at the airport in 2016 and how they will pick her up if she returns. The applicant said that things in Venezuela have become a lot worse and the collectivos have access to this data and work together with the council and if you don’t have a card you are put on the list and “disappeared”. She said that officially 3,000 people have been disappeared. If she goes back, she will be killed.
At the conclusion of the hearing the Tribunal asked the applicant if she wanted some time to provide additional evidence or information. She indicated that she did and the Tribunal agreed to receive any submissions or evidence that she wanted to provide by 11 October 2023.
The applicant’s representative provided an oral submission to the Tribunal which has been taken into consideration, where relevant, in the formulation of its findings and reasons below.
After the hearing the applicant, though her adviser, provided some additional country information which the Tribunal has taken into consideration in the formulation of its findings and reasons below.
FINDINGS AND REASONS
The Tribunal found the applicant’s evidence to be evasive, and lacking in relevant detail, despite being encouraged by the Tribunal to enlarge on her claims. The Tribunal notes that the applicant was distressed at times during the proceedings but despite being offered the opportunity to complete her evidence in a written submission she and her adviser insisted the hearing proceed. The Tribunal has taken into account the applicant’s situation in the formulation of its findings and reasons below.
The Tribunal accepts that the applicant has a subjective fear of returning to Venezuela but is not satisfied that the fear is well-founded. The Tribunal is not satisfied that the applicant is a person to whom Australia owes protection obligations for the following reasons.
Membership of Voluntad
The Tribunal accepts that the applicant may have been a member of Voluntad however her description of her activities for that party over a very short period did not persuade the Tribunal that she would come to the adverse attention of anyone such that they would want to wish her harm or cause her harm. The party itself confirms that she worked with youth and helped to organise activities for them and recognise her social and party work. They provide no further information and do not suggest that she was an office holder or an organiser in the party. The applicant herself indicated that she could only recall going to protests in 2001, 2004, 2014. She says that she went to others but could not recall. She was not involved in organising any of the protests she allegedly attended, or of speaking at them.
The applicant was unable to provide any details of her alleged involvement with the party except in the broadest terms and without a timeframe. There is no evidence before the Tribunal that she has made any political pronouncements publicly or in the media or that she has been implicated by anyone at any time of being involved in any political activity such that it would come to the adverse attention of anyone who would want to harm her.
The Tribunal is not satisfied that the applicant was persecuted in the past because of her imputed or actual political opinion by reason of her being a member of Voluntad, or for any other reason.
Anti-Chavist activity
The applicant claims that she refused to impose the Chavist [policy] in the [workplace] where she was [working]. She states that this was between 2001 and 2003 when she resigned. She has told the Tribunal that the collectivos have been interested in her since this time and the reason why they have targeted her at her apartment building and forcibly appropriated the apartment where she and her mother and sister were living.
The Tribunal finds this account to lack credibility. Even if the applicant refused to impose the Chavist ideology at her [workplace], she was nevertheless involved in [her profession] at various levels, including through [Employer 1] for around 26 years according to her own evidence and received a pension up until the time she spent more than 3 months overseas (until around 2017). It would seem to the Tribunal that if her refusal in 2001 was taken to be such an adverse thing as to attract and retain the attention of armed collectivos over a period of some 17 years, then at the very least she would not have still be engaged with [Employer 1], and at worst would not be sitting before the Tribunal.
The Tribunal does not accept that her refusal, if she did indeed refuse to impose Chavist ideology in 2001, would, some 17 years later would be a matter of record for the collectivos to access. If the applicant did refuse to impose the Chavist ideology such that people have chased her to try and kill her for 17 years, then it seems to the Tribunal that she would not have survived. She did not go into hiding but continued to [work] until 2010 in the public [sector] and lived in the same apartment for the entirety of the relevant period and yet remained unharmed.
The applicant has provided no corroborating statements from anyone who may have known her at that time including her neighbours or colleagues, for example, to support her claims.
On the basis of the evidence before it, the Tribunal does not accept that the applicant was or could be considered to be a political activist, or anti-government person such that she was or would be or was tracked by collectivos for 17 years and persecuted in Venezuela by reason of her imputed or actual political opinion, or for any other reason.
Collectivos and her apartment
The Tribunal does not accept the applicant’s claim that collectivos have targeted her by reason of her refusal to impose Chavis ideology or for any other reason. The Tribunal does not accept that the applicant’s apartment was seized by the collectivos and that her mother and sister were forcibly evicted, or that they are on the run, or in hiding for the reasons claimed or for any other reason. She has provided no media reports or country information or any evidence that communal councils and the collectivos are involved in forced eviction and acquisition of people who reside in their rightfully owned properties or their properties.

The Tribunal has formed a view that the applicant’s mother and sister remain resident in their apartment and were never evicted. The applicant’s account of this event lacks credibility, relevant detail, and corroborating evidence.
It seems to the Tribunal that if the applicant’s apartment was seized then there would be some evidence of it. She told the Tribunal that there was none. However, even if the communal council did not provide eviction notices it seems to the Tribunal that the applicant could have sought corroborating evidence from her neighbours, the body corporate of her building or even engaged a lawyer to corroborate that her children’s title to the apartment is now void, for example.
The applicant has not said that they have tried to fight the ruling or sought legal advice about the eviction or anything else that would persuade the Tribunal that the event occurred.
The Tribunal is not satisfied that the applicant, or her sister and mother, were forcibly evicted from their apartment or that the apartment has been forcibly acquired, by the communal councils, the collectivos or anybody else, or that they are on the run or in hiding, for the reason claimed, or for any other reason or that they have suffered or fear significant harm for the reasons claimed.
Police report and detention at the airport in 2016
The Tribunal is prepared to accept that there was gunshot outside or near her building and that she was the subject of an assault. However, a report to the police is not corroboration of an event. She has not said that there was an investigation of the report or that anyone was arrested.
Moreover, the report does not confirm her claims that it was the collectivos or provide her with any assistance to corroborate that the alleged assault was for the reason claimed. The Tribunal notes that whilst the applicant has accused the collectivos of the attack, she states that the attack was from behind and she did not see the attacker.
Equally, the applicant may well have been questioned at the airport when she returned to Venezuela in 2016. Despite asking her several times whether the officers questioned her about her political opinion or activity, she said they did not ask her those questions but they were looking for money. It sounds to the Tribunal that the officers were merely seeking to extort money from the applicant, not persecute her for her political views. She was, in any case, allowed to depart the airport at that time and was not prevented from leaving Venezuela in 2018 or questioned about her departure.
The Tribunal notes that the applicant also returned to Venezuela in February 2017 but has not claimed that she was questioned or detained at the airport upon her return at that time. It seems to the Tribunal that if the collectivos or the government and its agencies had any interest in the applicant such that they wanted to kill her, then she would have been arrested or detained or disappeared at the time she presented at the airport on any of those occasions. She was not. Further, that during the one occasion she claims she was detained they did not ask her about her political opinions.
The Tribunal is not satisfied that the applicant is being targeted by the collectivos, or the government or any of its agencies, or that they even have an interest in her such that they harmed her in the past or would seek to harm her in the future for the reasons claimed or for any other reason. The Tribunal is not satisfied that the applicant has suffered significant harm (as defined in the Act) for the reasons claimed or for any other reason whilst resident in Venezuela, or that her fear of significant harm in the future is well-founded.
Carnet de la patria
The Tribunal has not formed a view about whether the carnet de la patria is used for tracking people. However, the Tribunal is not satisfied that the applicant is of such adverse interest to the government and/or its agencies, or indeed anyone else, such that they would want to use any method to track her movements either now or in the future.
Current situation in Venezuela
The Tribunal accepts that the applicant is fearful of returning to Venezuela. The country information indicates that there is little economic or physical security for ordinary people. The healthcare system is collapsing, and the government is failing to respect the human rights of citizens. Extra judicial killings continue. In country information provided to the Tribunal by the applicant through her adviser it states that violence is not arbitrary, but part of a system orchestrated to repress dissidents.
However, the Tribunal is not satisfied that the applicant was a dissident or behaved in any way or involved in any organisation in such a way that would be allow other to perceive her as a dissident, or even come to the adverse attention of anyone such that they would want to harm her. The Tribunal is not satisfied that the applicant is of a profile that would make her any more likely than any other ordinary citizen of Venezuela to suffer significant harm, or any harm, by reason of the generalised violence that may exist in Venezuela at the present time.
The Tribunal accepts that people are fleeing the country in the hundreds of thousands and many hundreds of thousands are seeking asylum or have already been granted protection abroad. A UNHCR spokesman, however, has stated that unlike other forced displacement crises around the world, which are the result of armed conflicts, in the case of Venezuela, multiple factors — including insecurity and violence, lack of access to food, medicine and essential services, as well as loss of income, aggravated by the impact of the covid-19 pandemic — continue to figure into Venezuelans’ decision to leave. Equally, unlike in other situations such as the Sudan and Ethiopia for example, the UNHCR has not directed states not to return failed asylum seekers.
The Tribunal is of the view that the applicant has a place to live, being the apartment that she shared with her mother and her sister and who the Tribunal believes still reside there. She has said that she has no means of support in Venezuela and no longer receives a pension. The Tribunal accepts that she may have difficulty subsisting, in the same way that other ordinary citizens of Venezuela are struggling to find food, healthcare and other necessities.
OTHER MATTERS
The Tribunal accepts that the applicant has a subjective fear of returning to Venezuela. Both her children are resident in Australia and her daughter is a permanent resident who may be in a position to sponsor the applicant to remain under one of the parent or retirement categories.
The Tribunal is also mindful that the applicant will be subject to Section 48 of the Act which limits further applications by a person whose application for a visa has been refused.
In the circumstances of this case, the Tribunal would strongly support any decision the Minister might wish to make to lift the bar and allow the applicant to make an application for a parent visa onshore.
CONCLUSIONS
The Tribunal accepts that the security situation in Venezuela at the present time is volatile and the economy has collapsed. Many hundreds of thousands of people have fled and are fleeing.
Based on the evidence before it, the Tribunal is not satisfied that the applicant was harmed in the past, or that she faces a real chance of serious harm for the reasons claimed, should she be returned to Venezuela either now or in the reasonably foreseeable future. The Tribunal is not satisfied, on the basis of the evidence before it, that the applicant has a well-founded fear of persecution for any of the reasons in s5J(1).
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
The Tribunal has turned its mind to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Venezuela, there is a real risk that that the applicant will suffer significant harm.

100. In the Tribunal’s view the applicant is at as much risk as anyone else of being harmed in any generalized violence that may arise in Venezuela and is therefore excluded from consideration under the complementary protection criteria by virtue of S36(2B)(c). This clause excludes persons from being found to be at a real risk of suffering significant harm in a country if the Minister is satisfied that: the real risk is one faced by the population of the country generally.
101. There is no evidence before the Tribunal that there is a real chance that the applicant will suffer significant harm for any reason should she return to Venezuela. The Tribunal is not satisfied that the applicant meets the criteria set out in s.36(2)(aa).
102. On the basis of the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will suffer harm for the reasons claimed or for any other reason should she be required to return to Venezuela now or in the reasonably foreseeable future.

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

104. The Tribunal affirms the decision not to grant the applicant a protection visa.
Ann Duffield
Senior 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.
…

[2023] AATA 4439

13 October 2023

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