2111541 (Refugee)
[2025] ARTA 1545
•6 June 2025
2111541 (Refugee) [2025] ARTA 1545 (6 June 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 2111541
Tribunal:General Member M Bailey
Date:6 June 2025
Place:Brisbane
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that:
(i)the first named applicant meets s 36(2)(a) of the Migration Act; and
(ii)the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Statement made on 06 June 2025 at 9:43am
CATCHWORDS
REFUGEE – protection visa – Venezuela – political opinion – anti-government political beliefs – employer supported the opposition – government corruption via fees – foreign currency exchange debt – victim of theft, vandalism, harassment and death threats – attempted kidnapping – refrained from any public expression – fear of harm to his mother – intensified surveillance – arbitrary detention for political activities is common – widespread human rights violations – serious abuse of detainees – low-profile targets monitored – widespread shortages – denied access to food and healthcare – application process to obtain Carnet de la Patria will reveal political beliefs – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Kopalapillai v MIMA (1998) 86 FCR 547
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347Any 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 (delegate) on 30 August 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 15 March 2019. The delegate refused to grant the visas on the basis that the first named applicant (applicant) does not engage Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act. The second and third named applicants (second and third applicant) were accepted to be members of the same family unit as the applicant. However, as the applicant was found to not engage protection obligations, they did not satisfy the criteria in s 36(2)(b) or s 36(2)(c) of the Act.
The applicants were represented in relation to the review. The first and second applicants appeared before the Tribunal at the Brisbane Registry on 8 May 2025, accompanied by their representative. The first applicant gave evidence to the Tribunal, as outlined below. The second applicant confirmed that she was not raising her own claims for protection and did not wish to give evidence to the Tribunal. She attended the hearing as a support person. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
BACKGROUND
The applicant is [an age]-year-old male from Caracas, Venezuela. The second applicant, [an age]-year-old female from Caracas, is his wife. The third applicant, currently [age] years old, is their [child] who was born in Australia.
The first and second applicants arrived in Australia [in] July 2015 on Student (subclass 572) visas and have not departed since that time. They presented their original Venezuelan passports to the Department of Home Affairs (Department), together with documentary evidence of their marriage in Venezuela. A copy of a Queensland birth certificate was provided for the third applicant recording the first and second applicants as [his/her] parents.
The second and third applicants have not raised protection claims in their own right and rely on their membership of the same family unit as the applicant. Based on the available evidence, I am satisfied that the applicant is a citizen of Venezuela, and that Venezuela is his receiving country for the purposes of assessing his claims for protection. I am satisfied that the second applicant is the applicant’s wife, and the third applicant is his [child].
CLAIMS AND EVIDENCE
Evidence before the Department
The applicant’s protection claims were outlined in the protection visa application; submissions dated 26 March 2020 and 16 June 2021 prepared by Mr [A] who is stated to be a ‘Refugee Paralegal Volunteer’ and ‘Pro-bono McKenzie Friend’; and a Statement of Claims dated 10 June 2021 signed by the applicants and prepared by Mr [A] (Statement of Claims).
According to the protection visa application, the applicant ‘totally disagrees’ with the dictatorships of former President Chavez and current President Maduro and has always publicly expressed his disagreement. Due to his ‘previous involvements, complaints and records in protests against the dictatorship’ he has been listed as an enemy of the regime. He left Venezuela because of political persecution resulting from his actions in exposing corruption in ‘CENCOEX’, a government-controlled foreign exchange agency. He was targeted by the government and pro-government groups.
Relevant information from the Statement of Claims is summarised below:
i.The applicant worked as [an Occupation 1] for [a company], [Business 1], which was owned by three (named) partners. The business was required to deal with the National Centre of Foreign Trade (CENCOEX) to acquire foreign currency. CENCOEX was corrupt and deducted a percentage from foreign exchange transactions.
ii.In September 2014 the three partners fled Venezuela due to death threats resulting from one partner’s refusal to pay the fees demanded by CENCOEX. The authorities started calling the office asking for this partner and sent someone to the company office.
iii.In December 2014 the applicant went to the CENCOEX offices to finalise [a business transaction]. On leaving the offices he was approached by an armed person on a motorbike who asked him about one of the company’s partners and stole his mobile. Following this incident, threatening calls were received at the office, the motorbike of an employee was stolen, and the applicant’s car was damaged. One day while travelling to the office the applicant was followed by a motorbike and a van and was threatened that if the payments were not made, he would be killed.
iv.The applicant was experiencing mental and physical symptoms because of these issues. His manager suggested that he leave Venezuela and offered to support him to study overseas. He and his wife decided to apply for student visas to Australia.
v.He fears returning to Venezuela because he has been listed as a political dissident and will be targeted and seriously harmed by the government and pro-government groups.
The applicant attended a telephone interview with the Department on 25 June 2021. The interview was conducted with the assistance of an interpreter in the Spanish language. Mr [A] attended in the capacity of an observer or support person. Relevant evidence from the interview, as outlined in the delegate’s refusal decision, is summarised below:
i.The applicant participated in many demonstrations against the government as an ordinary protester. He did not experience any harm or come to the adverse attention of the authorities as a result of his participation. The applicant indicated that he had photos showing his participation, however, as noted in the refusal decision no photos were submitted to the Department.
ii.The applicant twice signed petitions against the government while in Venezuela. Asked when he did this, he stated that he signed once in 2015. He also referred to twice signing petitions in Australia, however, as noted in the refusal decision no supporting evidence was submitted to the Department.
iii.Regarding the harassment in connection with his employment with [Business 1], he stated that after the incident in December 2014 he was followed and threatened on three other occasions and his car was damaged (photos of the latter were submitted). He hid at home for his safety. He did not report these incidents to the police. Asked why he was being specifically targeted, he stated that as the company’s partners could not be located, they wanted to kidnap him to recover the outstanding debt.
In refusing the application, the delegate found it plausible that the applicant holds anti-government views. Despite expressing some concerns with his evidence, the delegate also accepted that the applicant had participated in anti-government protests in Venezuela as an ordinary protester with no particular profile. Based on the available evidence, the delegate was not satisfied that the applicant had been involved in any anti-government activities since arriving in Australia. While the delegate accepted the applicant’s claimed employment with [Business 1], they did not accept that he had been targeted or harmed by the authorities for reason of this employment or for any other reason.
Evidence before the Tribunal
Pre-hearing evidence
The applicants’ representative provided an Outline of Submissions dated 1 May 2025, together with a Statutory Declaration of the applicant dated 1 May 2025; supporting documents as outlined below; country information; and copies of several Tribunal decisions for Venezuela which are asserted to be relevant to the applicant’s case.
A letter dated 28 April 2025 from a [neighbour] in Venezuela, [Neighbour A], was provided relevantly stating that the applicant ‘actively worked with the governorship of Miranda State during the administration of Enrique Capriles Radonski, Nicolas Maduro's main competitor in the 2013 Presidential elections. For these reasons, like so many other young Venezuelans, for having critical opinions about the regime of Nicolás Maduro Moros, he was the object of intimidating accusations by groups sympathetic to that government to the point of hindering any activity he carried out. This situation became much more critical during 2014 and 2015, since the government's response to the protests of citizens, and especially young people, was repression.’
Relevant details from the applicant’s Statutory Declaration are summarised below:
i.He started to become politically aware in 1998 when Chavez began his rise to power. In 2003, when he was [age] yrs old, he signed a petition in support of a recall referendum against Chavez, which included providing his personal details. This petition later became known as the ‘Tascon List’. Although he was under voting age at the time and his name may have been filtered out of the final list, he believes the regime may have retained his personal details.
ii.In 2009 he began working for [Business 1] which was based in Miranda State and owned by [Business owner A]. Her husband, [Business owner B], and his brother, [Business owner C], owned affiliated businesses. All three were [Country 1] nationals and their businesses, which paid significant taxes, were known to have close ties to the opposition-led Miranda State government. As the [Occupation 1], he was a visible representative of the company.
iii.In 2012 he joined the opposition party, Accion Democratica (Democratic Action). He submitted an untranslated copy and accredited English translation of a letter issued on 20 March 2025 by the Municipal General Secretary of Democratic Action stating that the applicant has been a ‘member of our Organisation since 2012, actively participating in all the events convened by this political organization, in favour of the recovery of Democracy in Venezuela.’ A further document issued by the Municipal General Secretary of Democratic Action on [date] April 2025 (untranslated copy and accredited English translation) was submitted which refers to the applicant being an ‘important [member] within our ranks, carrying the [Democratic Action] banner wherever it was required in the City of Caracas, even when his life was in danger’; ‘together with his family, have represented us with dignity in every protest of a political and social nature’; ‘he became a target to be silenced by the ruling party’ and decided to leave Venezuela about 10 years ago ‘to safeguard his integrity, and that of his family’.
i.He actively participated in demonstrations, meetings and events. Photos were submitted which are said to depict the applicant’s participation in protests held in Caracas in 2012 against the Chavez government and in 2014 against the Maduro government. He was also regularly involved in election-related activities [in] his neighbourhood. These roles brought him to the attention of the government-aligned local communal council which are described as being ‘publicly insulted by a communal council representative while shopping’ and while attempting to renew his national ID card.
ii.He was not directly targeted prior to mid-2014. In August 2014, the government began targeting [Country 1] business owners. The foreign exchange authority, CENCOEX, began demanding bribes in USD for currency exchange, particularly from companies perceived as supporting the opposition. In September 2014 [Business owner C] fled Venezuela after receiving threats for refusing to pay a 3% USD ‘quota’. By October 2014, [Business owners A and B] also left Venezuela. Following their departure, unidentified persons posing as distributors came to the office under false pretences and [Business owner A] instructed all employees to ‘work behind closed doors’ and move to online operations.
iii.In December 2014, while visiting the CENCOEX office as part of his role, an armed man on a motorbike demanded information about [Business owner C]. After informing him that [Business owner C] had left the country, the man stole the applicant’s mobile and wallet. His phone contained information relating to his involvement with anti-government activities and membership of the Democratic Action party. He believes this exposed his anti-government involvement to the colectivos. Threats from the colectivos escalated; he received phone threats and his car was vandalised. In January 2015, he was followed by a motorbike and SUV while taking a taxi to work. One of the men who wore identifiable colectivo clothing threatened to kill the applicant for being an opposition supporter.
iv.The applicant was suffering severe emotional distress and anxiety and developed [Health condition 1]. He remained at home between January and June 2015 and, with the support of his employer, decided to leave Venezuela for his safety.
v.His student visa was approved in May 2015; the applicant and his wife departed in July 2015 for Australia. He hoped that the political situation in Venezuela would improve but this did not occur and in 2016 he extended his stay. In 2017 he participated in the National Consultation against Maduro’s Constituent Assembly (photos submitted).
vi.In 2015, following his departure from Venezuela, his mother filed a report with the police about his attempted kidnapping. No investigation was conducted. In July 2024 colectivo members raided his mother’s house looking for him. His mother filed another police report but again no action was taken. Untranslated copies and accredited English translations of two police reports dated 4 August 2015 and 31 July 2024 were provided, the content of which is outlined below:
a. The 2015 report refers to the applicant being a ‘victim of persecution, death threats and attempted kidnapping’ by colectivos from late 2014 in apparent connection with his employment with [the] company. The report provides an account of various threats and harassment experienced by the applicant including an attempted kidnapping incident [in] January 2015 and the incident in December 2014 where the applicant’s phone and wallet were stolen.
b. The 2024 report states that on 30 July 2024 five persons who identified themselves as members of pro-government armed groups violently broke into the applicant’s mother’s house. They stated that they were looking for the applicant whom they described as a ‘traitor to the homeland’ and ‘opponent of the revolutionary process’ because of his membership of the Democratic Action party. They searched parts of the house, threatened and insulted his mother and warned that if the applicant returned to Venezuela, ‘they are waiting for him to put him in prison’ and that ‘they already know where to find him’.
vii.He has received three ‘citacions’ (summonses) from the Forensic and Criminal Investigation Corp. He believes these indicate an active arrest order. Untranslated copies and accredited English translations of three summonses were provided, as outlined below. Each summons contains a section for acknowledgement of service, including the date, time and place of service and details of the person on whom the document was served. These are blank for all three documents:
a. Summons dated [date] February 2017 requiring the applicant to appear as a witness on [date] February 2017 in a criminal investigation relating to an ‘investigation for irregularities and alleged crimes in donation contracts’ between [Business 1] and the Government of the State of Miranda’.
b. Summons dated [date] March 2017, issued as a result of non-compliance with the summons dated [date] February 2017, requiring the applicant to appear as a witness on [date] March 2017 in relation to the above criminal investigation.
c. Summons dated [date] April 2017, issued as a result of non-compliance with the summonses dated [date] February 2017 and [date] March 2017, requiring the applicant to appear as a witness on [date] April 2017 in relation to the above criminal investigation.
viii.His mother has been denied the Homeland Card (Carnet de la Patria) because of her association with him and he believes he would also be denied access to this card. He provides financial support to his mother as evidenced by supporting bank statements.
ix.He continues to suffer psychological trauma from his experiences in Venezuela, for which he has engaged with mental health services since 2015. A letter dated 15 June 2021 from a Venezuelan psychiatrist was submitted stating that the applicant first received treatment around five and a half years ago following an attempted kidnapping. A further letter dated 11 April 2025 certifies that the applicant has attended 57 online sessions with a psychologist since July 2021.
x.He fears that if he returns to Venezuela he will be arrested on arrival due to the summonses. He would be detained and seriously harmed or killed by the authorities or colectivos. His political identity is known and cannot be concealed.
The Outline of Submissions reiterates the above claims and includes the following additional information:
i.In 2019 the applicant lost hope of his safe return to Venezuela and decided to apply for a protection visa. He sought advice from Mr [A], but did not realise Mr [A] was not a licensed registered migration agent or solicitor with a practising certificate. The applicant did not receive proper migration advice despite paying thousands of dollars in professional fees, which resulted in ill-preparation for the protection visa interview and ultimately refusal of the visa application.
ii.The applicant did not participate in as many political events in Australia after 2017. This is because he was warned by fellow Venezuelans that political events in Australia were monitored by the regime, and his ongoing participation may lead to safety concerns for his family in Venezuela.
iii.While the applicant was in Australia, his mother continued to receive intimidation and harassment from colectivos. Apart from the raid at her property in July 2024, she was frequently stopped and harassed by colectivo members who were looking for the applicant.
iv.The applicant’s Venezuelan passport has expired and he has been unable to renew it through the Venezuelan Embassy in Australia. He was advised that this is due to his protection visa application and political background.
Evidence from Tribunal hearing
Asked about the development of his political views, the applicant stated that his awareness began around the time of the coup d’etat led by Chavez when he was about [age] years old. He heard gun shots and witnessed people being killed. In 1998, when he was around [age] years old, he attended a rally with his mother in support of the opposition candidate, Henrique Salas Romer.
Regarding the signing of the 2003 recall referendum, he stated that opposition supporters came to his home while collecting signatures in his neighbourhood. He and his mother signed and provided their identification details. He acknowledged that his signature may have subsequently been invalidated because of his age. Asked whether he has any reason to believe that his name was on the Tascon List, he stated yes, because they were denied access to food under the Local Supply and Production Committees (CLAPs). This was because his mother was not registered with a government-aligned political party and was considered ‘opposition’.
I discussed with the applicant that according to the delegate’s refusal decision he stated that he signed a petition against the government in 2015, not 2003. He responded that he was very stressed during the protection visa interview and suffered a panic attack when the delegate unexpectedly asked his wife to leave the interview.
Asked about his involvement with the Democratic Action party, he stated that he was feeling a lot of hatred toward the government, so he felt that the only option was to join an opposition party. Democratic Action was the strongest opposition party at the time. He confirmed that none of his family members were involved with the Democratic Action party. He described the activities in which he was involved as part of this party as providing support with and attending rallies.
Asked how he obtained the supporting documents from Democratic Action, he stated that he asked his mother to request them; she sent them to him a few weeks ago. I discussed with the applicant that the letter from the Democratic Action party dated [April] 2025 refers to him being an important [member] of the party and his family members being involved with the party, which appears inconsistent with his evidence to the Tribunal. He responded that through his employment with [Business 1] he provided support to the party which may be considered as financial support. Although his mother was not a member of Democratic Action, she was considered opposition and holds views in support of the opposition. He confirmed that he has had no involvement with the Democratic Action party since he departed Venezuela, stating that he was fearful of doing so.
I discussed with the applicant that he made no mention of his involvement with the Democratic Action party, or any other political party, in his evidence to the Department. Asked why he did not obtain evidence of his involvement with the Democratic Action party earlier and submit this to the Department, the applicant responded that he did not receive the right advice from Mr [A]. He was not advised to obtain or provide any evidence and was told that he only needed to explain why he left Venezuela. I noted that at the interview the delegate asked him questions about how he expressed his political views in Venezuela. He responded by referring to attendance at demonstrations and signing of petitions against the government and did not refer to any involvement in an opposition political party. The applicant responded that he did not leave Venezuela because of his participation in demonstrations or support for the opposition; he left because of the harassment from colectivos.
Regarding the photos submitted to the Tribunal of claimed participation in protests in 2012 and 2014, I discussed with the applicant that these had not been submitted to the Department, despite the delegate requesting evidence of his attendance at any demonstrations. He stated that he provided the photos to Mr [A] to submit to the Department. I also raised that the photos appear to depict a group of friends at a public event but there is nothing in the photos to indicate that they relate to gatherings of a political nature. The applicant acknowledged this and added that after he was targeted by colectivos, he deleted any material from his own social media accounts that showed his involvement in opposition rallies. He obtained these photos through a friend’s social media account.
Regarding the three summonses, the applicant stated that these were served on his mother by a police officer. Asked when he became aware of these documents, he stated that his mother told him in 2017 that summonses had been delivered for him. He only asked her to send him copies of the documents after he engaged his current representative in March 2025. Asked what the criminal investigation related to, the applicant stated that the government was trying to prevent Henrique Capriles from running in the 2018 presidential election. The criminal investigation was an attempt to implicate him in wrongdoing regarding donations. He was summonsed, together with others involved in government contracts with Miranda State, because as the [Occupation 1] for [Business 1] his name was on contractual documents. Asked why the summonses do not contain any acknowledgment of service, he stated that it was because he was not there to personally receive them.
I discussed with the applicant that he made no reference to these documents in his evidence to the Department despite confirming that he was aware of their existence prior to lodging his protection visa application. He agreed and reiterated that he received the wrong advice from Mr [A]. He also feared telling the Australian government that he had been issued summonses relating to a criminal matter. I noted that he was given the opportunity at the protection visa interview to raise any issues that may bring him to the adverse attention of the Venezuelan authorities. Despite knowing about these significant documents, he made no mention of them to the delegate. I also raised that there was a delay of around two years between his learning of the summonses and his application for protection. I explained to the applicant that in the circumstances, I may have concerns regarding these documents and may not give them any weight.
Regarding the 2015 police report, the applicant was asked why his mother decided to report these incidents in August 2015. The applicant stated that he told her not to report to the police, but she did this against his wishes after he left Venezuela. He only became aware of the police report in around 2022 or 2023, after the protection visa interview. Regarding the incident outlined in the 2024 report, the applicant was asked why colectivos would come to his mother’s house searching for him considering he departed Venezuela 10 years ago and the report acknowledges that the colectivos were aware that he had left the country. The applicant responded that this was part of ‘Operation Tun Tun’ in which the government was seeking to silence the opposition. All known members of the opposition were threatened in order to create a climate of fear.
Regarding political activities while in Australia, the applicant confirmed that, other than signing the National Consultation in July 2017, he has had no involvement. He wanted to, but was fearful that this would result in reprisals against his mother who lives alone in Venezuela. The applicant added that he never wanted to leave his country permanently and apply for a protection visa and has significant fears for his mother who he had to leave behind in Venezuela.
The applicants’ representative made oral submissions acknowledging that the applicant had not provided all relevant evidence to the Department; this was due to his reliance on a person who was not a registered migration agent. The applicant was not adequately prepared for the protection visa interview, which was conducted by telephone, and did not have access to important evidence. Reference was made to the applicant’s documented mental health issues which exacerbated his difficulties in providing evidence to the delegate. It was also submitted that the delegate failed to understand or consider the connection between the applicant’s employment with [Business 1] and support for the opposition-affiliated Miranda State government.
FINDINGS AND ASSESSMENT
The issue in this case is whether any of the applicants engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Act. For the following reasons, I have concluded that the matter should be set aside and remitted for reconsideration.
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. Relevant provisions of the Act are extracted in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the Department’s ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Factual findings
In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the AAT Guidelines on the Assessment of Credibility[1] and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]
[1] Administrative Appeals Tribunal, Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015
[2] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
[3] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
I acknowledge that the applicant’s protection visa application and supporting documents were prepared by Mr [A] who was not qualified to provide migration assistance. In the circumstances I have not placed any adverse weight on inconsistencies or omissions arising from the written material presented to the Department. As discussed below, I have significant concerns with the late disclosure of key claims and evidence presented to the Tribunal in circumstances where the applicant attended an interview with the delegate and was given the opportunity to provide further details of his claims.
I accept that the applicant was employed as [an Occupation 1] with [Business 1], [a company] based in Miranda State, from 2009. I accept that [Business 1] and affiliated businesses had links with the Miranda State government which between 2008 and 2017 was governed by high profile opposition leader and presidential candidate, Henrique Capriles.[4] I accept that from around September 2014 [Business owner C] was targeted by the Venezuelan authorities in connection with a claimed foreign currency exchange debt, causing the family to depart for [Country 1]. I accept that following their departure, the applicant was subject to harassment and threats from government-aligned colectivos due to his employment with [Business 1], including the claimed incidents in December 2014 and January 2015. I am satisfied that these claims have remained overall consistent and plausible and are generally supported by independent country information.
[4] Britannica online, Henrique Capriles: Biography and Facts
According to sources cited in a recent report by the European Union Agency for Asylum, colectivos were initially created as community, social or student organisations, but over time changed their objectives to engage in the control of territory, proselytise in support of the government, engage in criminal activities, and carry out intelligence activities. Colectivos are present throughout the country and have the support of the state. Civil authorities at all levels reportedly use colectivos as a ‘clandestine armed wing to carry out dirty work’ to target dissidents. Colectivos also act as a paramilitary shock-force to repress anti-government demonstrations and political dissidents, including through raids, beatings, and point-blank shootings. Since colectivos have control over their areas of presence and operation, they can easily identify political opponents and dissidents, prohibit demonstrations or the exhibition of dissent, and mobilise residents to participate in pro-government demonstrations. Most incidents of targeting by colectivos are due to political motivations, including participation in, or support of, demonstrations; support of political opposition parties; and criticism of the government.[5]
[5] European Union Agency for Asylum, Venezuela – Country Focus, November 2023
While I have some concerns with the late disclosure of the 2015 police report, I am prepared to accept the applicant’s explanation that he was not aware of this document until after the delegate’s decision was finalised. I acknowledge that the details in the police report are consistent with the applicant’s evidence of targeting and harassment by colectivos from late 2014 in relation to his employment with [Business 1]. The letters from a psychiatrist and psychologist regarding the applicant’s mental health treatment also provide some support for these claims.
Based on his evidence to the Department and the Tribunal and in light of the country information discussed below, I accept that the applicant held views against the Venezuelan government while residing in Venezuela. I accept the applicant’s evidence to the Tribunal regarding the development of his political views at an early age and his signing in 2003 in support of removing Chavez as President. I have not placed any adverse weight on inconsistencies in his oral evidence to the delegate regarding when he signed the recall referendum. I have taken into account his explanation to the Tribunal that he experienced significant anxiety and stress during the interview, which is consistent with the supporting medical evidence. I also acknowledge difficulties in recollecting specific dates after a significant lapse of time and that the interview was conducted via telephone.
However, considering that the applicant was [age] years old at the time that he signed and therefore under the legal voting age, I do not accept that his name was ultimately published on the Tascon List or the subsequent ‘Maisanta’ database which were widely used by the government to discriminate against signatories on the basis of their political affiliation.[6] The applicant has provided no evidence to indicate that he personally was subject to any repercussions in connection with his name being on the Tascon List or the Maisanta database. I accept that his mother was denied access to food under the CLAP scheme because she was not registered with a government-aligned political party. This is consistent with reports that the CLAP scheme enabled the government to use food as a political weapon, favouring its supporters and the politically docile.[7] According to a 2021 Amnesty International report, food distribution systems such as CLAPs, ‘operated according to politically discriminatory criteria’.[8] However, I do not accept that this discrimination had any connection to the applicant’s signing of the recall referendum in 2003.
[6] European Asylum Support Office, Venezuela Country Focus: Country of Origin Information Report, 21 August 2020; Immigration and Refugee Board of Canada, Venezuela: Treatment of suspected whistle-blowers or former government employees, by the government or pro-government groups (2015 - May 2017) VEN105784.E, 19 May 2017
[7] International Crisis Group, Watch List 2017, Special Report Nº3, 24 February 2017
[8] Amnesty International, The State of the World’s Human Rights, 6 April 2021
As discussed above, I accept that the applicant was employed with a company which openly supported the opposition-led Miranda State government. I consider it plausible that as part of his employment with [Business 1], the applicant was involved in activities in support of the Miranda state opposition government. The letter from [Neighbour A] referring to the applicant actively working with the governorship of Miranda State during the Capriles administration provides some support for this claim.
I do not consider the photos submitted to the Tribunal to present probative evidence of participation in anti-government protests in Venezuela. However, considering my findings regarding his political views and the prevalence of such protests in Venezuela during the relevant period, I accept that the applicant participated in some anti-government demonstrations.
I have some concerns with the new claims and evidence presented to the Tribunal regarding the applicant’s involvement since 2012 with an opposition political party, Democratic Action. The Democratic Action party, founded in around 1940, is one of the oldest Venezuelan political parties. It was one of two parties that alternated in power for four decades before Chávez was elected president in 1998. It is described as a social-democratic party which has long opposed the socialist government of current President Maduro and his predecessor Chavez.[9]
[9] Immigration and Refugee Board of Canada, Venezuela: The Democratic Action (Acción Democrática) political party, including ideology, objectives, structure, key positions, and leadership; requirements and procedures to become a member; appearance of membership cards; treatment by authorities (2013-June 2017) [VEN105828.E]
Despite being specifically asked by the delegate about any ways in which he expressed his political views in Venezuela, the applicant made no mention of being a member of Democratic Action. Further, I find the letter dated [April] 2025 from Democratic Action to contain some inconsistencies with the applicant’s own evidence, particularly the references to him being an ‘important [member]’ in the party, the involvement of his family members with the party, and that he was targeted by the government due to his involvement with the party, leading to his departure from Venezuela. As outlined above, the applicant acknowledged to the Tribunal that none of his family members were involved with Democratic Action, his role was limited to assisting with rallies, and he did not depart Venezuela for reasons of his involvement with an opposition political party.
However, I have had regard to the applicant’s explanation to the Tribunal for this omission. I accept that he was experiencing stress and anxiety during the telephone interview and was relying on unqualified migration advice. Given my findings above regarding his genuine political views and support for the opposition-led Miranda State government, I am prepared to accept that he was an ordinary member of Democratic Action between 2012 and his departure from Venezuela. I have placed minimal weight on the letter from Democratic Action dated [April] 2025 given the inconsistencies discussed above and do not accept that the applicant held any [particular] role with the party.
I have significant concerns with the new evidence presented to the Tribunal regarding three summonses issued to the applicant between February and April 2017, which the applicant now claims indicate that he is subject to an arrest warrant on return to Venezuela. The applicant confirmed to the Tribunal that he was made aware of the existence of these documents by his mother sometime in 2017, prior to lodging the protection visa application in 2019, yet he made no mention of them to the Department. I acknowledge his explanation to the Tribunal for this omission and, as above, I have taken into account the applicant’s stress and anxiety during the telephone interview. However, considering the significance of these documents to his protection claims and the opportunity to raise this important information with the delegate during the protection visa interview, I do not find these factors to adequately address an omission of this nature.
Considering the above, I have placed no weight on the summonses presented to the Tribunal and do not accept that the applicant has been issued with any summons or arrest warrant by the Venezuelan authorities.
I have significant concerns regarding the 2024 police report presented to the Tribunal relating to a raid by colectivos on his mother’s house on 30 July 2024. I acknowledge country information indicating that this date coincides with the launch of Operation Tun Tun (Operation Knock Knock) in which security forces were sent to the homes of persons who had participated in the protests following the 2024 election outcome, or who had voiced opinions critical of the government, in order to arrest them, fostering a climate of generalized fear among the population.[10]
[10] UN Human Rights Council, Detailed findings of the independent international fact-finding mission on the Bolivarian Republic of Venezuela, 14 October 2024
According to information from the NGO ‘Foro Penal’ most of the arrests from 29 July to 24 August 2024 were carried out by the Bolivarian National Guard (30 per cent) and the Bolivarian National Police (30 per cent), followed by joint operations by security forces and State intelligence and counter-intelligence agencies. The UN Fact Finding Mission in its October 2024 report notes that although it has no information that colectivos were involved in the detentions it investigated, the presence of motorcyclists dressed in civilian clothes was recorded during operations by the security forces that resulted in detentions.[11]
[11] UN Human Rights Council, Detailed findings of the independent international fact-finding mission on the Bolivarian Republic of Venezuela, 14 October 2024
Considering that the applicant has been outside Venezuela since mid-2015, during which time he has posted no anti-government material on social media and had no involvement in anti-government activities other than signing the National Consultation in 2017, I do not find it plausible that he would be specifically targeted in July 2024 as part of Operation Tun Tun. Further, considering the direct involvement of the Bolivarian National Police and other government agencies in Operation Tun Tun, I do not consider it plausible that the applicant’s mother would report this incident to the police.
Considering the above, I have given no weight to the 2024 police report and do not accept that colectivos or any other government authority were searching for the applicant in July 2024 as part of Operation Tun Tun.
Based on his oral evidence and supporting photos submitted to the Tribunal, I accept that the applicant signed the Venezuelan National Consultation in July 2017 while in Australia. Reports indicate that this was an opposition-organised referendum which included a vote on the government’s plans for a new constituent assembly with the power to scrap the National Assembly and rewrite the constitution. Approximately 6.5 million people voted within Venezuela and almost 700,000 at polling stations abroad.[12]
[12] BBC News, Venezuela referendum: Big show of support for opposition, 17 July 2017
I accept that he has had no other involvement in political activities or the public expression of his political views while in Australia, including on social media. I accept his evidence to the Tribunal that he has refrained from any such activities due to a fear of harm to his mother who continues to reside in Venezuela. This is generally consistent with reports of increased monitoring and repression by the authorities of social media activity expressing criticism or dissatisfaction with the Maduro government which are considered as acts of ‘terrorism’ and ‘hatred’. This increased and became more widespread since the 2024 election.[13]
[13] UN Human Rights Council, Detailed findings of the independent international fact-finding mission on the Bolivarian Republic of Venezuela, 14 October 2024
I also consider it plausible that the applicant’s experiences of harassment and targeting by the colectivos in 2014/2015, which I accept have adversely affected his mental health, have contributed to his fear of publicly expressing his political views. In the circumstances I accept the applicant has continued to genuinely hold views in opposition to the Maduro government following his departure from Venezuela but has largely refrained from any public expression of those views due to a fear of harm.
Refugee criterion assessment
My assessment is forward looking and involves consideration of whether the applicant would face a real chance of serious harm in the reasonably foreseeable future if he were to return to Venezuela. As discussed below, since the applicant’s departure in 2015 circumstances in Venezuela have significantly deteriorated.
Political situation
While Venezuela is formally a multiparty constitutional republic, for over a decade political power has been concentrated in a single party, the PSUV, with an increasingly authoritarian executive exercising significant control over the legislative, judicial, citizens’, and electoral branches of government. Venezuela does not function as a representative democracy and is experiencing one of the worst economic and political crises in its history.[14]
[14] Freedom House, Freedom in the World 2019 - Venezuela, 5 February 2019; United States Department of State, 2023 Country Reports on Human Rights Practices – Venezuela, 22 April 2024
According to Freedom House, the authorities have closed virtually all channels for political dissent, supplanting the National Assembly in 2017 with a National Constituent Assembly serving the executive’s interests, restricting civil liberties and prosecuting perceived opponents without regard for due process.[15] Human Rights Watch similarly reported that no independent government institutions remain to check executive power. The government stripped power from the opposition-led legislature and represses dissent through often-violent crackdowns on street protests, jailing opponents and prosecuting civilians in military courts. Maduro and his predecessor Chavez stacked the courts. Supreme Court members have publicly rejected the separation of powers principle and have pledged to advance the government’s political agenda, and the Court has consistently upheld abusive practices.[16]
[15] Freedom House, Freedom in the World 2019 - Venezuela, 5 February 2019
[16] Human Rights Watch, Human Rights Watch World Report 2019, 17 January 2019
According to the US Department of State, the Maduro government restricted participation in the May 2018 presidential elections so that they ‘were not free or fair’, violently supressed peaceful demonstrations, held political prisoners, was pervaded by corruption, and took no effective action against officials who committed human rights abuses. Maduro’s re-election in May 2018 was not recognised by many American and European Union (EU) governments.[17] There are credible reports that arbitrary detention for political activities is common in Venezuela, as is serious abuse of detainees, particularly those detained on political grounds.[18]
[17] United States Department of State, Country Reports on Human Rights Practices for 2018 - Venezuela, 13 March 2019
[18] United States Department of State, 2023 Country Reports on Human Rights Practices – Venezuela, 22 April 2024; Amnesty International, Silenced by Force: Politically-Motivated Arbitrary Detentions in Venezuela, 26 April 2017; United Nations Human Rights Council, Report of the independent international fact-finding mission on the Bolivarian Republic of Venezuela, 15 September 2020
In a widely disputed election result in July 2024, Maduro was declared the winner over opposition candidate Edmundo González, giving Maduro a further six-year term as president.[19] The outcome has been generally described as fraudulent, undemocratic and failing to meet international standards of electoral integrity. According to the interim report of the UN Panel of Experts on the Venezuelan Presidential Elections, the Venezuelan National Electoral Council did not follow national legal and regulatory provisions and fell short of the basic transparency and integrity measures that are essential to holding credible elections.[20]
[19] Americas Society/Council of the Americas, Explainer: Venezuela’s 2024 Presidential Elections, 11 July 2024
[20] Immigration and Refugee Board of Canada, Venezuela: Political situation, including the 2024 presidential elections; treatment of political opponents and protesters (2023–February 2025), 21 February 2025; UN Human Rights Council, Detailed findings of the independent international fact-finding mission on the Bolivarian Republic of Venezuela, 14 October 2024; Associated Press, Venezuelan opposition says it has proof its candidate defeated President Maduro in disputed election, 30 July 2024; BBC News Online, Venezuela’s Maduro declared winner in disputed vote, 29 July 2024; The Guardian, Rogero T, Evidence shows Venezuela’s election was stolen – but will Maduro budge?, 7 August 2024
The election outcome triggered a wave of protests throughout Venezuela which were met with violent repression by government security forces and government-aligned colectivos, including mass arrests, killings, politically motivated detentions and widespread human rights violations against protesters, bystanders, opposition leaders and critics. This was reported to have been instigated by the highest civilian and military echelons of the state, including President Maduro.[21] A range of credible sources indicate that since the 2024 presidential elections, the political situation in Venezuela has deteriorated to unprecedented levels, with an intensification in targeting and surveillance of political opponents and protesters, including through the launch of Operation Tun Tun.[22]
[21] Immigration and Refugee Board of Canada, Venezuela: Political situation, including the 2024 presidential elections; treatment of political opponents and protesters (2023–February 2025), 21 February 2025; UN Human Rights Council, Detailed findings of the independent international fact-finding mission on the Bolivarian Republic of Venezuela, 14 October 2024
[22] Immigration and Refugee Board of Canada, Venezuela: Political situation, including the 2024 presidential elections; treatment of political opponents and protesters (2023–February 2025), 21 February 2025
According to the October 2024 UN Fact-Finding Mission, arbitrary detentions of real or perceived opponents of the government increased during the election campaign and particularly in the days following the election. In response to post-election protests, the government launched a campaign of mass and indiscriminate detentions, while continuing to target opposition and civil society actors. In all cases documented and investigated by the Fact-Finding Mission, the persons were detained without warrants, on charges that had no legal basis, and without informing relatives and friends where they were being taken. In many cases, the detentions were the result of anonymous complaints or through electronic applications such as the ‘VenApp’. This application, initially created by the government in 2022 to improve public services for the community, has at the President’s request, been used following the 2024 election for the purpose of anonymously denouncing persons for anti-government activity.[23]
[23] UN Human Rights Council, Detailed findings of the independent international fact-finding mission on the Bolivarian Republic of Venezuela, 14 October 2024
According to government figures, by 6 August 2024, 2,229 persons – described by the President as ‘terrorists’ – had been detained. According to the Foro Penal figures 1,542 people had been detained throughout the country between 29 July and 24 August 2024. Most of the people detained in the post-election context were not politicians or persons with a known public profile, as was the case in the period prior to the election. Rather, they were persons who expressed their rejection of and dissatisfaction with the government and the announced election results, many of whom were from working-class neighbourhoods, especially young men.[24]
[24] UN Human Rights Council, Detailed findings of the independent international fact-finding mission on the Bolivarian Republic of Venezuela, 14 October 2024
As outlined above, Operation Tun Tun launched on 30 July 2024, involved intensified surveillance, including security forces being sent to people’s houses and stopping people on the street to check their phones. As part of this operation, security forces reportedly arrested and tortured activists, volunteers and individuals who were even remotely connected to the opposition. [25]
Carnet de la Patria
[25] Immigration and Refugee Board of Canada, Venezuela: Political situation, including the 2024 presidential elections; treatment of political opponents and protesters (2023–February 2025), 21 February 2025
Venezuelans face widespread shortages of food, consumer goods and medicine. According to National Surveys on Living Conditions for 2020 and 2021, 96 per cent of households in Venezuela were in income poverty and 79 per cent in extreme income poverty and unable to purchase the basic food basket.[26] The government responded to mid-2016 shortages (particularly of food), which led to rioting and looting in a number of cities, by replacing a large part of the retail food distribution network with CLAPs, using both the military and political organisations affiliated with the ruling PSUV. The private sector was legally obliged to sell 50 per cent of its production to the government for distribution through the CLAP network. While the CLAP scheme reduced the number and length of queues (a frequent trigger for riots), it has enabled the government to use food as a political weapon.[27]
[26] Amnesty International, The State of the World’s Human Rights, 6 April 2021; Amnesty International, Venezuela: Human rights lose whilst impunity prevails: Amnesty International submission for the UN Universal Periodic Review, 40th session of the UPR working group, January 2022, 21 July 2021
[27] International Crisis Group, Watch List 2017, Special Report Nº3, 24 February 2017
On 29 December 2016 President Maduro introduced the Carnet de la Patria (or Homeland card), an electronic card which would initially serve to ration and distribute the food sold by the CLAPs and social missions. There was immediate adverse reaction that the government was preparing to increase social control and retaliation against dissent. Opposition political leaders said the card was a means to collect information to limit political activism.[28] According to a report of the European Asylum Support Office, while the Tascón list and the Maisanta program had been favoured during the Chávez era for discrimination and persecution on political grounds, during the Maduro government the monitoring and discrimination tool most used is the Carnet de la Patria. The report indicates that monitoring of low-profile targets is carried out by armed colectivos and ‘boliches’ (the pro-government Patriotic Forces of National Liberation), and that ‘access to government databases by colectivos ‘takes place sui generis rather than officially’.[29]
[28] Panam Post, Avendaño O, Homeland card: the new food rationing in Venezuela, Avendaño O, 29 December 2016; Freedom House, Freedom on the Net 2017 - Venezuela, 14 November 2017
[29] European Asylum Support Office, Venezuela Country Focus: Country of Origin Information Report, August 2020
According to sources cited in a 2017 Immigration and Refugee Board of Canada report, the Venezuelan authorities exclude citizens opposing the Maduro government from food aid distribution; Venezuelan authorities rely on the Carnet de la Patria to deliver humanitarian aid to citizens on the basis of ‘loyalty’ to the regime; there are reports that citizens who sympathise with the opposition are denied social services such that the Carnet de la Patria is regarded by many as a means of government control; and human rights groups believe that the Maduro government uses the Carnet de la Patria to monitor the populace and ‘allocate scarce resources to his loyalists’.[30] An October 2021 report by the UN Human Rights Office found there to be continued reports of some persons allegedly being denied food assistance on political grounds, for criticism of the government.[31]
[30] Immigration and Refugee Board of Canada, Venezuela: Treatment of citizens by the authorities based on whether or not they participate in anti-government protests, including whether some are more targeted than others and for what reasons; whether access to social security programs may be affected by political activities (2017–January 2021), VEN200429.FE, 3 February 2021
[31] United Nations Human Rights Council, Situation of human rights and technical assistance in the Bolivarian Republic of Venezuela, 21 October 2021
A report from the Caracas Chronicles on the experiences of Venezuelans in Caracas registering for the Carnet de la Patria in 2017 indicates that applicants are questioned about any social media accounts, whether they are part of any Government Missions and which political party they belong to or support. The process was carried out by members of the ‘Robert Serra Brigades’, a local pro-government group.[32] A March 2017 article on Venezuelan website Acceso Libre stated that, to obtain the Carnet de la Patria, a citizen had to provide, not only basic information such as their address and date of birth, but social and political information, such as membership of a certain party. In some places, the registration was carried out by communal councils, that is, ordinary people.[33] The NGO ‘Transparency Venezuela’ reported in early 2018 that some of the data asked for at the time of the registration were: identity card number, social networks (Twitter, Facebook and Instagram), belonging to a social movement and belonging to a political party or other organisations.[34]
[32] Caracas Chronicles, Hernandez C, Getting the Carnet de la Patria, 5 April 2017
[33] Acceso Libre, The homeland card and the insatiable thirst for data of the Venezuelan government, Diaz M, 3 March 2017
[34] Transparency Venezuela, Carnet de la Patria, Revolutionary apartheid, 2018
According to a 2020 report of the US State Department, applicants for the Carnet de la Patria are required to present ‘proof of political affiliation’ and answer questions about their social service benefits.[35] The most recent US State Department report notes that China reportedly continues to provide Maduro representatives with technology to monitor citizens’ social, political, and economic behaviour through the Carnet de la Patria. As the card is required to obtain social services, including pensions, medicine, food baskets, and subsidised fuel, citizens had little choice other than to obtain and use the card.[36] Resources and services available via the Carnet de la Patria include some as basic as food, hygiene products, treatment for chronic illnesses and cancer, vaccinations, housing, subsidised gasoline, education, and programs for people with disabilities, among many others.[37]
Assessment
[35] US Department of State, 2020 Country Reports on Human Rights Practices, March 2021
[36] United States Department of State, 2023 Country Reports on Human Rights Practices – Venezuela, 22 April 2024
[37] Refugee and Immigration Board of Canada, Venezuela: The Homeland card (carnet de la patria), including issuance procedures, usage and physical characteristics, extent to which homeland cards have been distributed, VEN106113.E, 18 May 2018
Considering my factual findings together with the above country information, I am satisfied that the chance of the applicant being harmed in connection with his anti-government political opinion in the reasonably foreseeable future is more than remote and amounts to a real chance. I find this to arise cumulatively from his accepted holding of genuine anti-government views which he could not be expected to conceal in order to avoid persecution, and the application process to obtain the Carnet de la Patria.
The country information discussed above indicates that targeting of persons holding anti-government views is not limited to persons with a public or high-profile and has increasingly extended to ordinary opposition supporters such as the applicant, particularly since the July 2024 election. Further, I find that if the applicant were to apply for a Carnet de la Patria – without which he would be unable to access a range of subsidised basic goods and services, including foods, medicines and health care – this would increase the chance of his political views coming to the adverse attention of the authorities and local colectivos. The above country information indicates that the registration process is undertaken by members of local colectivos and involves scrutiny of political affiliations. As discussed above, country information indicates that colectivos act with impunity and are responsible for extra-judicial killings and other acts of violence.[38]
[38] United States Department of State, 2023 Country Reports on Human Rights Practices – Venezuela, 22 April 2024
I am satisfied that the applicant’s political opinion is the essential and significant reason for the persecution as required by s 5J(4)(a) and that the persecution involves systematic and discriminatory conduct as required by s5J(4)(c) as it would be targeted toward him for reasons of his political opinion and is non-random. I find the persecution to involve serious harm as required by s 5J(4)(b), including threats to the applicant’s life or liberty and significant physical harassment or ill-treatment.
As the persecution emanates from the State, I find that the real chance of persecution relates to all areas of Venezuela as required by s 5J(1)(c) of the Act and that effective protection measures, as defined in s 5LA, would not be available to the applicant. I find that the applicant could not take reasonable steps to modify his behaviour to avoid a real chance of persecution. Such modifications would fall within the exceptions in s 5J(3) of conflicting with a characteristic that is fundamental to his identity or conscience or altering or concealing his true political beliefs.
For the above reasons, I find the applicant has a well-founded fear of persecution and is a refugee within the meaning of s 5H(1) of the Act.
Protection in a third country
Under s 36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
In the applicant’s protection visa application, he stated that his father holds [Country 1] citizenship. On 16 October 2019, the Department wrote to the applicant requesting further information regarding any rights to residency in [Country 1] based on his father’s citizenship. The applicant responded by way of a Statutory Declaration dated 29 October 2019 confirming that he is not a citizen of [Country 1] and has no current right to enter and reside in [Country 1]. This was accepted by the Department as part of an assessment under s 91P and s 91Q of the Act.
I acknowledge that the UNASUR provides for entry/residence arrangements for Venezuelan citizens in other UNASUR member countries (currently Bolivia, Guyana and Suriname). Under an agreement made in December 2006, a citizen of a UNASUR country is permitted to enter another UNASUR country as a tourist without permission to work for up to 90 days using only their national identity card rather than a passport.[39] Ongoing residence beyond 90 days would require an application for a visa and is therefore dependent on the discretion of the authorities of the third country. I find that permission to enter another UNASUR country for 90 days as a tourist does not amount to a right to enter and reside for the purposes of s 36(3) of the Act. Based on the available evidence, I find that the applicant does not have a right to enter and reside in a third country and s 36(3) is therefore not applicable.
[39] Center for Economic and Policy Research, Toward a New UNASUR: Pathways for the Reactivation of South American Integration, Guillaume Long and Natasha Suñé, 18 October 2022; Fernando Ayala, Meer, Union of South American Nations Awaiting its resurrection, 21 April 2021; Peoples Dispatch, RUNASUR, a new Latin American regional integration mechanism, created in Bolivia, Peoples Dispatch, 27 April 2021
Conclusions
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a). I am satisfied that as the husband and minor [child] of the applicant, the second and third applicants are members of the same family unit as the applicant for the purposes of s 36(2)(b)(i) of the Act. It follows that the second and third applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that:
·the applicant meets s 36(2)(a) of the Act; and
·the second applicant and third applicant satisfy s 36(2)(b)(i) of the Act, on the basis of membership of the same family unit as the applicant.
Date of hearing: 8 May 2025
Representative for the applicants: Mr Ton Chau
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.
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