2102204 (Refugee) - [2025] ARTA 964

2102204 (REFUGEE) [2025] ARTA 964 (31 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2102204
Tribunal:General Member V Price
Date:31 March 2025

Place:Melbourne
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 31 March 2025 at 10:14am
CATCHWORDS
REFUGEE – protection visa – Venezuela – political opinion – father a member and applicant a supporter of opposition parties – community activism and protests – shot while fleeing from protest – friends arrested and disappeared, cousin killed and family moved to other countries after harassment and threats – interest and engagement in Australia, but no activities – returnee from Western country with visible tattoos – reasonable explanations for new evidence and no adverse inference drawn – detailed, unexaggerated and compelling evidence – fraudulent election, protests and disproportionate force by security forces and armed groups – control of information, monitoring of individuals and detention and torture of activists – risk for returnees with history of political activity – modification of behaviour impermissible – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), (3)(a), (c), 65, 367A
Migration Regulations 1994 (Cth), 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 on 23 February 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is an adult male who states he is a national of Venezuela. He applied for the visa on 27 June 2019. The delegate accepted the applicant held anti-government political views, he had attended protest against the government, and his father was associated with opposition political parties. However, the delegate was not satisfied the applicant was a person of interest to the Venezuelan authorities or that his father was threatened and had to flee the country. The delegate found the applicant did not face a real chance or risk of harm on return to Venezuela.
The applicant appeared before the Tribunal on 6 March 2025 to give evidence and present arguments.The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the reasons discussed below, the Tribunal disagrees with the conclusions reached by the delegate and has decided to set aide the decision under review and remit the application for a protection visa for reconsideration.
BACKGROUND
The applicant’s background and his protection claims were set out in his protection visa application, his oral evidence to the Department delegate at interview, and in written and oral evidence provided to the Tribunal. This evidence is summarised below.
Background
The applicant was born in Caracas but moved to [City] with his family when he was young. He has one [brother]. He attended primary and secondary school after which he was studying to become [a occupation 1]. However, for the reasons set out below, he was unable to finish training. He attended university where he studied [subject 1] for two years before coming to Australia on a student visa.
The applicant was enrolled in a Certificate III and IV in [subject 2]. He has been employed as [occupations 2 and 3] and has undertaken work in [workplaces] and in the [work sector]. For the past six to seven years, he has been working as [an occupation 4]. He has visible tattoos on his [body part].
Protection claims
The applicant’s father was an active member of several (aligned) political parties openly opposed to the current government. Specifically, he was a member of Voluntad Popular and Primero Justicia. He organised party meetings, provided financial support and promoted the parties in the community. His father’s family were also politically active with the majority also supporting opposition parties.
Through his father’s engagement in politics and human rights issues, the applicant also developed an interest in these matters. He attended party meetings with his father, but his father did not want him to officially join an opposition party for safety reasons, as his father was aware people would be targeted in different ways for anti-government political activities. His mother’s employer was taken over by the government and she was fired due to her political beliefs and those of their family.
The applicant was expelled from his [occupation 1] training when his father’s political affiliations became known. He was able to enrol in a private [subject 1] school where he became politically active. He and some fellow [subject 1] students undertook community outreach on political matters advocating against the government. He also actively participated in demonstrations protesting oppression and authoritarianism by the government. He attended protests outside government buildings.
He could not recall exactly how many protests he had attended, but stated it was more than ten. He witnessed acts of violence and aggression against protestors by the authorities. In one incident towards the end of 2014, he was shot at a demonstration while trying to flee from the authorities and their tanks. A passerby took him to hospital where, with help from his father who bought medical supplies to the hospital, the bullet was removed. He still has a scar from the wound.
Many of the applicant’s friends who were politically active were arrested and have disappeared. Eventually, his father felt it was too dangerous for the applicant to remain in the country. His cousin was already coming to Australia on a student visa, and suggested they come together. The applicant agreed and began arrangements to travel to Australia. However, before they could leave, his cousin was murdered. They are unsure who killed his cousin or the reasons behind his death.
After the applicant arrived in Australia, the situation in Venezuela deteriorated further, and his parents received direct threats against them and were harassed by the Colectivos. They sold their home and fled the county in 2019, moving to [Country 1]. In 2020, his father returned to Venezuela to finalise some matters, and see if circumstances had improved, but he was kidnapped and threatened. He was released by his assailants and he reported the incident to the police. They did not assist him, and with the assistance of one of the applicant’s friends, his father departed Venezuela immediately, returning to [Country 1].
The applicant’s parents now reside in [Country 2] on humanitarian visas. His brother remains in [Country 1], and they have lost contact due to a falling out. His father’s family have all left Venezuela, and variously reside in [Countries 2 and 3]. The only relative with whom he has any contact in Venezuela is his aunt.
He has not undertaken political activities against the government during his time in Australia. His friends have invited him to do so, and while he remains interested and engaged in the political situation in Venezuela, he believes real change requires grassroots action within the country and that protests in Australia will achieve little. If he returns to the country, he will continue to protest the actions of the government.
He fears he will experience serious harm on return to Venezuela due to his actual/imputed political opinion against the government. It was also submitted that Colectivos target returnees from Western Countries exporting them due to their perceived wealth. Further, his visible tattoos will make him stand out and he will be more recognisable on return.
Evidence before the Tribunal
The following supporting evidence was before the Tribunal:
·Protection visa application.
·The applicant’s Venezuelan identity documents.
·A statement dated 27 June 2019.
·Photograph depicting the scar on the applicant’s [body part 2] resulting from the bullet wound.
·Father’s party ID cards for Primero Justicia, and Voluntad Popular.
·Pre interview submission dated 20 January 2021.
·Post interview submission email dated 1 February 2021.
·Legal submission from the applicant’s current representative dated February 2025.
·Statement from the applicant dated 25 February 2025.
·Records of Payments for Counselling Sessions for the applicant.
·A copy and translation of a police report dated January 2020 regarding the kidnapping and threats against the applicant’s father.
·Screenshot of two social media posts made by the applicant in April 2013 and February 2014.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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.
REASONS AND FINDINGS
Nationality, area of return and s 36(3)
The applicant has provided documents establishing his Venezuelan nationality. The Tribunal accepts this evidence and finds that Venezuela is his receiving country. The applicant was born in Caracas but for the most part he resided in [City]. His parents are currently in [Country 2], and his brother is in [Country 1]. He has one Aunt that still lives in [City] and given his past connection with the area, the Tribunal finds this is the area to which he would return in the future.
There is nothing in the applicants’ profile or evidence to indicate he has a current right to enter and reside in any other country apart from Venezuela, including [Countries 1-3] where other family members are residing, and the Tribunal is not satisfied that he does. The Tribunal finds that s 36(3) does not apply in this case.
New Evidence s 367A of the Act.
In accordance with s 367A of the Act, if the Tribunal is satisfied that the applicant does not have a reasonable explanation for not raising or presenting claims or evidence before the primary decision was made, the Tribunal is to draw an adverse inference regarding the credibility of those matters.
New claims and evidence were submitted to the Tribunal that were not before the Department. This included a claim and evidence regarding his father’s return and kidnapping in Venezuela in 2020, screen shots of applicant’s old [Social media] pages, and evidence of the applicant’s counselling. In his statement the applicant explained that the 2020 incident happened before his 2021 interview with the delegate. At that point he had not raised it, and then felt doing so over a year later would undermine his credibility and hurt his case. I accept this explanation. In relation to the [Social media] and counselling evidence, I accept these were provided to counter the findings of the delegate, and to evidence the applicant’s current frame of mind. I find that there are reasonable explanations for failing to provide the new evidence before the making of the primary decision. I find that s 367A of the Act does not apply. I am not required to draw an adverse inference of the credibility of the new claims and evidence, and I do not do so.
Issues for consideration
The issues in this case are whether the applicant has a well-founded fear of persecution in Venezuela or, if not, whether he has a real risk of significant harm in that country.
As noted above, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Refugee Assessment
The applicant has claimed to fear harm on return to Venezuela due to his actual and perceived political opinion against the current government.
I found the applicant to be forthright in his evidence to the Tribunal. He provided detailed and unexaggerated evidence regarding the political views and activities of he and his family demonstrative of genuine interest and engagement in Venezuelan political and human rights issues. His evidence regarding the events leading up to, and following, his shooting was emotive and compelling, including details such as the adrenaline rush he experienced, the delayed reaction to his injury, and the moment he realised he had been shot. The level of specificity in his account is indicative of real lived experience. His evidence was also internally consistent with evidence he provided to the Department, and was consistent with available country information on the circumstances and political environment in Venezuela during the time of the claimed past events.
Relevantly, information confirms that Voltund Popular and Prima Justiça are aligned within the Unitary Platform Party and are in opposition to the government led by Maduro since his election in 2013.[1] Widespread demonstrations and violence broke out across Venezuela in 2013 and into 2014 after Maduro’s election.[2] Demonstrations occurred largely at or near university campuses or gathering places such as public squares and plazas, and opposition supporters were called to marches and public gatherings during that period.[3] Dissent against Maduro, including by low-level protestors and opposition activists, was met with suppression and violence, with authorities ordered to shoot at demonstrators.[4] The government has acknowledged 455 cases of enforced disappearance since 2015, the majority of which remain unresolved.[5]
[1] Immigration Review Board of Canada (IRBC), ‘The political party Voluntad Popular, its structure, as well as its main positions and officials; the conditions to become a party member, including a description of the membership card; the treatment reserved for members of this political party by the authorities’, 2013-September 2014; ‘Voluntad popular - Leopoldo López’, party website, most recently accessed 25 March 2025; Wikipedia, ‘List of political parties in Venezuela, last updated 7 November 2024; Wikipedia, ‘Unitary Platform, ’ last updated 8 March 2025; and Netherlands Ministry of Foreign Affairs,' General Country of Origin Information Report Venezuela, June 2020, 11 June 202 (NMFA 2020 Report), pages 32-34.
[2] 'Venezuela: Background and U.S. Relations', Sullivan M P, United States Congressional Research Service, 28 February 2014, pages 9-10; 'Venezuela: Background and U.S. Relations' (R43239), Sullivan M P, United States Congressional Research Service, 22 August 2016, page 10; and 'Venezuela 2014 Crime and Safety Report', Overseas Security Advisory Council (OSAC), Bureau of Diplomatic Security, U.S. Department of State, 26 February 2014.
[3] and 'Venezuela 2014 Crime and Safety Report', Overseas Security Advisory Council (OSAC), Bureau of Diplomatic Security, U.S. Department of State, 26 February 2014.
[4] NMFA 2020 Report, page 35.
[5] Amnesty International (AI), ‘State of the Worlds Human Rights – Venezuela’, 23 April 2024, (AI 2024 Report), pages 402-407.
Reports also state that individuals who supported referendums against Maduro presidencies lost their government jobs and that authorities monitor family members of opposition party members, dissidents, and political activists.[6] Information states that between 2014 and the end of 2019, approximately 15,000 people were arrested during demonstrations, including actual protesters as well as spectators and passers-by. Many were also arrested after returning to their homes. At the end of 2019, around 8,900 of these individuals had been released, but remained subject to prosecution.[7]
[6] NMFA 2020 Report, page 36.
[7] HRW 2025 Report; and NMFA 2020 Report, page 35.
The applicant’s claims are also supported by [Social media] posts dated 2013 and 2014 evidencing his participation at a demonstration and his political views, the party membership cards of his father, the photograph of his bullet wound, and the police report regarding the 2020 kidnapping of his father. There is nothing before me to indicate this material is not genuine. I accept this evidence.
On the totality of the evidence before me I accept that the applicant’s father was an active member of political parties opposed to the current Venezuelan government. I accept that the applicant’s father provided financial support to these parties, attended party meetings, and undertook community engagement against the government. I accept the applicant attended party meetings but did not officially join the party at his father’s direction due to safety concerns.
I accept that the applicant was expelled from [occupation 1] school due to the political views of his father, that his mother lost her government job for the same reason. I accept that the applicant was a member of a university group engaged in grass roots political activism educating communities about the government and opposition parties and attending numerous protests. I accept that he was shot at once such protest. I accept that after he came to Australia, the situation deteriorated, his parents received harassing calls, were threatened, and left the country. I accept that his father was kidnapped on a brief return to Venezuela in 2020, that it was reported to the police who did not act on the report, and that the applicant called his friend to assist his father to leave the country.

I accept that the applicant’s immediate family no longer reside in Venezuela. His parents are in [part of Country 2], his brother is in [Country 1] and other family members are elsewhere in [Countries 2 and 3]. I accept he has contact with one aunt in Venezuela. I also accept that the applicant has highly visible [body part] tattoos which would be obvious on his return.
I accept the applicant’s evidence that he does not engage in political activism in Australia for reasons that he claimed. In the circumstances of this case, I do not consider this demonstrates he is no longer interested or engaged in the politics of Venezuela, or that he will not be politically active on return. On the contrary, the applicant’s evidence demonstrated a strongly held belief in grassroots activism and that real change can only be made from within the country. His evidence demonstrated an appreciation and understanding of the current political and humanitarian issues in Venezuela and given the actions of his father and his own past activities, I accept he will engage in political activism against the government on his return to Venezuela in the reasonably foreseeable future.
Country information regarding current circumstances in Venezuela
President Nicolás Maduro was re-elected in late 2023 in an election that independent, commentators view as fraudulent.[8] Independent examinations of credible voting tallies showed that opposition candidate, Edmundo González Urrutia, won the presidency.[9] However, a warrant was issued for his arrest, and he was forced to flee the country in September.[10] In the wake of this, credible international commentators state that the Venezuelan authorities continue to detain and punish government critics and have closed off virtually all channels for political dissent, restricting civil liberties and prosecuting perceived opponents without regard for due process.[11]
[8] Freedom House, ‘Freedom in the World 2025- Venezuela’, (Freedom House 2025 Report), March 2025; OSAC, ‘Venezuela Country Security Report’, 12 March 2025 (OSAC 2025 Report); Human Rights Council (HRC), ‘Report of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela’, A/HRC/57/57, 17 September 2024, pages 5-6; HRC, ‘Detailed Findings of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela - A/HRC/57/CRP.5 ‘,14 October 2024, pages 99- 132; and Human Rights Watch (HRW), ‘World Report of 2025- Venezuela’, 16 January 2025, (HRW 2025 Report) pages 523-529.
[9] Freedom House 2025 Report; HRW 2025 Report; and OSAC 2025 Report.
[10] Freedom House 2025 Report; HRW 2025 Report; and OSAC 2025 Report.
[11] Freedom House 2025 Report; HRW 2025 Report; OSAC 2025 Report; HRC, ‘Detailed Findings of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela - A/HRC/57/CRP.5 ‘,14 October 2024, pages 99- 132; and HRC, ‘Report of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela’, A/HRC/57/57, 17 September 2024, pages 5-6.
Mass protests following the purported re-election of Maduro were met with disproportionate force by security forces and pro-government armed groups, including the so called ‘Colectivos’, and tear gas and live ammunition were used to disperse crowds.[12] Approximately 24 people were killed, mostly young men, and the number of political prisoners rose dramatically as the government violently cracked down on dissent. The authorities launched ‘operation’ Tun-Tun’ (Operation Knock Knock)’, sending security forces to the homes of individuals who participated in the protests or who had voiced opinions critical of the Government, to arrest them.[13] The government also established two prisons specifically to hold these political prisoners.[14] Over 2,400 people were arbitrarily arrested in the two weeks following the election.[15] President Maduro described these individuals as ‘terrorists’.[16]
[12] Freedom House 2025 Report; HRW 2025 Report; OSAC 2025 Report; HRC, ‘Detailed Findings of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela - A/HRC/57/CRP.5 ‘,14 October 2024, pages 99- 132; and HRC, ‘Report of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela’, A/HRC/57/57, 17 September 2024, pages 5-6.
[13] HRC, ‘Report of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela’, A/HRC/57/57, 17 September 2024, pages 5-6; and
[14] Freedom House 2025 Report.
[15] Freedom House 2025 Report; HRW 2025 Report; OSAC 2025 Report; HRC, ‘Detailed Findings of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela - A/HRC/57/CRP.5 ‘,14 October 2024, pages 99- 132; and HRC, ‘Report of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela’, A/HRC/57/57, 17 September 2024, pages 5-6.
[16] Human Rights Council, Detailed Findings of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela - A/HRC/57/CRP.5 ‘, 14 October 2024, page 110.
The government initiated an intimidation campaign to demonstrate the consequences of criticising the government on social media.[17] Videos of arrests and of detainees apologising for criticizing Maduro were published, and supporters of the regime marked the houses of critics and opposition supporters with a black “X’.[18] Citizens were encouraged to report political protests and suspected dissidents through a government backed app, and many people were detained for expressing critical opinions regarding the election on social media and in WhatsApp conversations.[19]
[17] Freedom House, 2025 Report
[18] Freedom House, 2025 Report.
[19] Freedom House 2025 Report.
There are numerous mechanisms by which the government and government supported agencies, monitors the population. Several Chinese companies provide the government with technical assistance to implement cyber surveillance mechanisms against dissidents and the political opposition, including by facial recognition.[20] The government also manipulates and controls information, blocking digital platforms including Twitter, WhatsApp, Facebook, and Instagram.[21] The government requires individuals to hold a ‘Carnet de la Patria’ (Homeland Card) to access health care, housing, pensions, petrol, and food provided through the Local Committee of Supply and Production, among other things. To obtain the card, citizens must provide their identification number, telephone number, address, date of birth and gender, and the card has a QR code which must be scanned by holders on every use.[22] Commentators consider it is used to track citizens, including their political preferences and to identify those who do not support the government.[23]
[20] European Union Agency for Asylum (EUAA), 'Venezuela: Country Focus (November 2023)', 16 November 2023, (EUAA 2023 Report), pages 29-31.
[21] EUAA Report, page 31-97.
[22] EUAA Report, page 31-97; NMFA 2020 Report, pages 28-29: IRBC ‘VEN200881.E - Venezuela: Requirements and procedures to obtain the Homeland Card (Carnet de la Patria); content, appearance, and security features; social services available for holders; availability of documentation to prove that a person does not posses’, 28 January 2022 (IRBC 2022 Homeland Card Report).
[23] EUAA Report, page 31-97; NMFA 2020 Report, pages 28-29: IRBC 2022 Homeland Card Report.
The National Assembly approved a law enabling the suspension of nongovernmental organizations (NGOs) accused of promoting hate speech or fascism or engaging in political activities.[24] Further, pursuant to existing laws, insulting the president is punishable by six to 30 months in prison without bail, and there are lesser penalties for insulting lower-ranking officials.[25] Crimes for inciting hatred and terrorism are used to silence freedom of expression by activists and journalists, and carry sentences of up to 30 years in prison.[26]
[24] Freedom House 2025 Report.
[25] United States Department of State (USDOS),'Country Reports on Human Rights Practices for 2023 - Venezuela', 22 April 2024 (USDOS 2024 Report), page 25.
[26] HRC Detailed Findings of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela - A/HRC/57/CRP.5 ‘,14 October 2024, page 131; NMFA 2020 Report; and USDOS 2024 Report page 25.
There are credible reports that political activists experience treatment amounting to serious harm and torture during periods of questioning, arrest, and detention. Numerous sources including the Human Rights Council, the United States Department of State (UDSOS) and the European Union Agency for Asylum (EUAA), report that law enforcement agencies, the military, pro-government groups and prison guards, regularly beat and humiliate suspects and, among other things, there are reports of individuals being raped, asphyxiated, electrocuted, and subjected to waterboarding.[27] The 2023 EUAA report states that torture is used to obtain confessions and information, to punish, humiliate, intimidate, coerce, and/or to extort detainees.[28] Extortion within prisons is common by prisoners and authorities, with ‘protection’ fees ranging from 5 to 50 USD; non-payment usually results in acts of torture and homicide.[29]
[27] EUAA Report Pages 23-24; USDOS 2024 Report, pages 6-7:and HRC Detailed Findings of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela - A/HRC/57/CRP.5 ‘,14 October 2024, page 126; and HRC, ‘Report of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela’, A/HRC/57/57, 17 September 2024, pages 7, 9, and 13-14.
[28] EUAA Report page 23-24
[29] EUAA Report page 23-24
A 2025 report by Freedom House states that Venezuelans arriving in the country by air are required to have a valid Venezuelan passport or special travel documents.[30] Further information states that if an individual had spoken out against the government, participated in anti-government protests, or belongs to a known political opposition group, there is a risk of imprisonment, persecution and enforced disappearance upon their return to Venezuela.[31]
Assessment future harm
[30] Freedom House 2025 Report.
[31] IRBC,’ Venezuela: Requirements and procedures to re-enter Venezuela after travelling abroad; treatment of Venezuelans who have travelled abroad, including those who have sought asylum (2017-October 2019)’, 23 March 2020.
The applicant’s evidence was that he would be detained on arrival at the airport in Venezuela, particularly given his tattoos which make him stand out from the crowd. He stated that he would be questioned, and that even if the authorities do not have records on him, they will have information on his father.
In this case, I accept that the applicant’s tattoos would make him stand out. I place weight on the information above, that on return a person’s political activities would be known to the authorities and that the population are heaving monitored for their political affiliations. The country information before me does not clearly state whether individuals are arrested and detained on arrival into the country, or whether this occurs later. However, in any event, I accept that the authorities are highly likely to have information on his own past political activities, as well as those of his father.
I accept that there is a real chance he will be detained and questioned, either at the airport, or on his return to his home area. I give weight to information above that political detainees are subjected to mistreatment amounting to significant physical harassment and ill-treatment and torture. I accept here is a real chance he will experience this treatment.
Even if he is not arrested on or soon after his arrival into the country, given his past active political engagement and that of his father, I find that there is a real chance he will participate in anti-government political activities on return, including attending protests and promoting opposition ideologies. I give weight to independent information that individuals are heavily monitored for their political views, and those who attend protests are followed to their home where they are arrested, detained and subject to prosecution. I accept there is a real chance this will happen to the applicant, and on the information set out above, I find that he will face significant physical ill-treatment, harassment and torture.
On the totality of the evidence before me, including the applicant’s accepted claims and evidence and the independent country information, I find that he faces a real chance of serious harm on return to Venezuela now or in the reasonably foreseeable future for the essential and significant reason of his political opinion. I find this treatment amounts to systematic and discriminatory conduct.
As the perpetrators of the harm are the government, and agencies or armed groups acting for the government, I find that the real chance of harm arises throughout the country, and that effective protection measures are not available to the applicant.
I find that it would not be reasonable for the applicant to modify his behaviour, as to do so conflicts with a characteristic that is fundamental to his identity and conscience and requires him to alter or conceal his true political beliefs. These are impermissible modifications for s 5J(3)(a) and (c). I find s 5J(3) does not apply.
On the totality of the information before me, I find that the applicant has a well-founded fear of persecution.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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 Migration Act.
Dates of hearing:  6 March 2025
Representative:  Ms Stacey Nitchov
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.
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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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