2203475 (Refugee)
[2025] ARTA 1195
•27 March 2025
2203475 (REFUGEE) [2025] ARTA 1195 (27 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2203475
Tribunal:General Member A Goodier
Date:27 March 2025
Place:Perth
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 27 March 2025 at 12:16pm
CATCHWORDS
REFUGEE – protection visa – Venezuela – political opinion – opposition to the government – anti-government demonstrations – Tascon List – particular social group – homosexual – employment – social media activities – third country protection – delay in applying for protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2CASES
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
CQG15 v MIBP [2016] FCAFC 146
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
Selvadurai v MIEA (1994) 34 ALD 347
WAKK v MIMIA [2005] FCAFC 225Any 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 24 February 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Venezuela, applied for the visa on 6 December 2019. The delegate refused to grant the visa on the basis that the delegate did not accept that the applicant faced a real chance of serious harm for one or more of the reasons referred to in subsection 5J(1)(a) of the Act. The delegate also did not accept that there was a real risk the applicant would face significant harm for any reason on their return to Venezuela. A copy of the delegate’s decision was provided to the Tribunal by the applicant.
The applicant appeared before the Tribunal on 21 January 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.
BACKGROUND
Evidence before the Department
In his application for protection, the applicant indicated he was born in [specified year] in Cumana, Sucre, Venezuela. He lists his parents and sister as remaining in Venezuela. He is in regular contact with his family, particularly his mother. He indicates he resided at the same address in Cumana, Sucre, Venezuela from January 2009 to March 2014 and November 1999 to January 2002. From January 2002 to September 2009, he resided in [Town 1]. The applicant indicates he can speak, read, and write Spanish and English. His parents are citizens of Venezuela as is he. He was granted a [visa] to [Country 1] [in] valid to [2024]. His ethnicity is listed as Latin American and religion, Christian. The applicant departed Venezuela legally holding a passport issued by the Venezuelan authorities and entered Australia holding a valid student visa in September 2018.
The applicant has travelled to various countries, including [several named countries]. He has been employed in Australia as [several occupations] and in Venezuela as an [occupation 1]. He completed his education in Venezuela to degree level and studies English in Australia. In Australia he has also completed [multiple courses].
The applicant claimed to fear harm returning to Venezuela due to the change in the political situation. There has been a change in the Presidency and the country has been plunged into economic and political crisis and unrest. The applicant claimed his father had lost two jobs due to the [company] he worked for due to the deteriorating economic conditions. His father requires daily medication but cannot source it locally so relies on sending a driver into [a neighbouring country] to source his medication. His sister has been waiting over 10 months for her passport. Inflation is extremely high making it difficult for people to pay for the necessities of life. The US has recognised the opposition leader as the legitimate President of Venezuela and imposed sanctions on the Venezuela Government. Both the US and Australian Governments recommend “Do not travel”. The applicant and his family do not support the Maduro Government. He does not hold a “party card” nor do other members of his family. He will be unable to find employment as an [occupation 1] and his family are unable to support him. As he is not a supporter of the Government, he will be unable to find employment in the civil service. He will be perceived as a supporter of the oppositions and face serious harm on his return. He is unable to obtain protection and cannot relocate elsewhere.
The applicant submitted to the department copies of pages from his [social media account] with translations. The posts were under the name of “[his name variant]”. The posts are dated between 2015 to 2019 with many as “likes” or comments on other posts. In a statutory declaration, the applicant indicated that [the variant name] is his nickname and the name he uses for his social medica account. The applicant indicates he did not participate in the election in December 2015, commenting in a post that he was unable to make his own contribution to the victory.
During his interview with the delegate, the applicant indicated he attended three or four peaceful demonstrations with other students while he was studying at university. His name is on the Tascon List. He decided to stop participating in the demonstrations after witnessing the violence against protesters. He has made comments via social media platforms against the current government. He delayed applying for protection as he was hoping for matters to improve.
The delegate’s decision refers to the applicant’s parents being [occupation 2s] by profession and his sister, an [occupation 3] living in a different city. He is an [occupation 1] by profession and worked as an [occupation 1] prior to departing Venezuela. The delegate was satisfied the applicant had some understanding of the political system in Venezuela. The delegate accepted based on country information the applicant attended peaceful demonstrations in 2004 but stopped after witnessing the violence from security forces against the protesters.
In Australia he claimed he had participated in two political demonstrations but provided no proof despite request from the delegate. He did not mention he was associated with any group or organisation in Australia opposed to the current government. The delegate did not accept he was politically active in Australia. The delegate accepted the applicant randomly shared posts of a political nature on his social media under his nickname [specified], known only to his family and friends. The delegate did not accept the limited posts gave him a political profile either in Australia or Venezuela. The delegate gave the applicant the benefit of the doubt on whether he had signed the Tascon list. The applicant indicated both his parents and his sister worked for the private sector as did he. However, he could not get a job in the public sector.
The applicant claimed he would not be able to get a party card which was introduced in December 2016. The card enables Venezuelan citizens to access goods and health services provided by the State. The delegate found his delay in applying for protection indicated he did not have a genuine fear of returning to Venezuela.
The delegate accepted the applicant had participated in several protests but had not been politically engaged for some years. The delegate accepted he did not support the current government but found that he would not participate in protests or be actively engaged in political activities on his return to Venezuela. The delegate did not accept that being on the Tascon list deprived him of obtaining a job in the private sector or the opportunity of finding employment. The delegate was not satisfied the applicant’s political or imputed political opinion was such that he would be denied access to a “party card”.
The delegate was not satisfied the applicant met the criteria for a protection visa.
Evidence before the Tribunal
The applicant explained to the Tribunal why he did not disclose his homosexuality to his first representative. After a discussion it appeared the representative told the applicant that he was the first application for protection for Venezuela and the applicant was not confident in him. The Tribunal discussed the provisions of s367A with the applicant and sought his reasons for not raising his fears of being homosexual. The applicant told the Tribunal that he was unaware he could raise his homosexuality as a claim, and he was afraid of disclosing his sexuality to his then representative.
The applicant explained that his father and sister do not know he is homosexual, but he told his mother after his arrival in Australia. She asked him not to tell his father or his sister. He discussed his awareness of being homosexual when he was at university and while he probably realised earlier, he was in denial and kept it secret. Initially he was scared, particularly of what others would think, and it has been a long process of awareness and development. He had relationships that were important to him as they could talk, and he could be himself. In Australia he has been able to be himself and be accepted as a homosexual by others such as his neighbours, friends and he has a partner of around 8 years with whom he can live openly. He has not been open with his co-workers but has lived privately with his homosexuality for some time.
The applicant at hearing expanded on living as a homosexual in Venezuela meant to him. He did not tell people he was homosexual in fear. He told the Tribunal that if his employer had discovered he was homosexual, he would be dismissed. He kept his relationships secret. They did not live together or were open in their relationship. He did not expect protection from the authorities if he was threatened or assaulted because he was homosexual.
The applicant stood by his initial statements lodged with his application for protection in relation to his political involvement.
The applicant provided a detailed statement to the Tribunal. He set out he was born into a conservative Catholic family in Venezuela but now has Christian beliefs. He is a homosexual and has been in a relationship with his husband for about eight years in Australia. He is a professional [occupation 1]. The applicant refers to country information about the treatment of homosexuals in Venezuela as well as his own personal experience. He kept his sexuality a secret while living in Venezuela. He did not discuss his sexuality with his parents or his [sister]. His father does not tolerate and rejects homosexuality and he never contemplated telling his family. He did not live openly as a gay person in Venezuela, and this created conflict within him. As a student he could clearly see the aggression by other students towards gay university students. He had two relationships while in Venezuela, but they kept the relationship secret and behaved as friends. He knew he would not be able to obtain protection from the authorities if he was threatened or beaten because of his sexuality. He came to Australia as a student and found he could live openly as a gay person. He met his partner who he recently married.
The applicant provided statutory declarations from a number of people who have known the applicant for some time. Each declarant attested to the applicant’s homosexuality and the genuineness of his relationship with his partner, with many attending their wedding. Also provided were a number of photographs of their wedding.
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
Country of nationality
The applicant travelled to Australia on a genuine passport issued by the Venezuelan Government. He has at all times stated that he is a citizen of Venezuela and has been assessed on that basis by the Department. The Tribunal finds he is a citizen of Venezuela and assessed his claims against Venezuela as the country of nationality and the receiving country.
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be set aside.
Country Information
Lesbian, gay, bisexual, transgender/transsexual, and intersexual (LGBTI) people in Venezuela potentially face official discrimination, widespread intolerance and are occasionally subjected to violence.[1] Consensual same-sex sexual activity was not criminalised in Venezuela’s first (1836) Penal Code and has not been criminalised since.[2] The Constitution provides for equality before the law of all persons and prohibits discrimination based on sex,[3] but it does not explicitly prohibit discrimination based on sexual orientation or gender identity. While there is a TSJ ruling that no individual may be subject to discrimination because of sexual orientation, the ruling is rarely enforced.[4]
[1]Freedom in the World 2019 - Venezuela', Freedom House, 5 February 2019, section F4 (p.[16]), 20190218085724; ‘Freedom in the World 2018. Venezuela Profile’, Freedom House, Accessed 2 February 2018, p.[16], NGED867A64.
[2] State-Sponsored Homophobia 2017 – A World Survey of Sexual Orientation Laws: Criminalisation, Protection and Recognition’, International Lesbian, Gay, Bisexual, Trans, and Intersex Association (ILGA), 1 May 2017, pp. 30, 50, 56, 156-157 & maps at end, CISEDB50AD4462.
[3] Constitution of The Bolivarian Republic of Venezuela’ [translation of ‘Constitución de la República Bolivariana de Venezuela’, Asamblea Nacional Constituyente, Caracas, 1999] (Caracas: Gobierno Bolivariana de Venezuela, Ministerio de Comunicación e Información, March 2006) [Document created 9/03/2006], Article 21, on República Bolivariana de Venezuela Embajada en EE.UU. [Embassy of Venezuela in the United States of America] website, CISBE8E6BE866.
[4] Country Reports on Human Rights Practices for 2019 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 11 March 2020, p.32 section 6, 20200312111107; 'Country Reports on Human Rights Practices for 2020 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.40 Section 6, 20210331125015.
The law prohibits discrimination by state and non-state actors based on sex but does not specifically address sexual orientation. There are no legal instruments allowing same sex marriage, domestic partnership, or the adoption of children by same sex couples. Incidents of discriminatory violence against LGBTQI+ persons have been reported and law enforcement authorities often did not investigate. A survey by the Venezuelan Observatory of LGBTIQ+ Violence found 24 % of respondents hid their identity due to fear of discrimination and 28% had been the victim of violence. Sixty cases of violence and discrimination against the LGBTQI+ community were documents, mostly in the form of hate speech.[5]
[5] Country Reports on Human Rights Practices 2023 Venezuela, United Sates Department of State.
Local police and private security forces have allegedly prevented LGBTI people from entering malls, public parks, and recreational areas. Law enforcement statistics do not reflect LGBTI-related violence since the law does not define a hate crime.[6]
[6] Country Reports on Human Rights Practices for 2019 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 11 March 2020, p.32 section 6, 20200312111107; 'Country Reports on Human Rights Practices for 2020 - Venezuela', Bureau of Democracy, Human Rights and Labor, United States Department of State, 30 March 2021, p.40 Section 6, 20210331125015.
Sources report violent incidents against members of the LGBTI community in Venezuela due to the victim’s sexual orientation. With 109 murders committed between January 2009 and May 2017, Venezuela was the country with the fourth-highest number of murders of members of the LGBTI community in North, Central and South America after Brazil, Mexico, and the US, according to the website of Red LHBTI Venezuela (the LGBTI network in Venezuela). Alberto Nieves of the NGO Acción Ciudadana contra el Sida (Civic Action Against AIDS) said that the use of derogatory remarks about sexual orientation with which senior government officials attempt to discredit political opponents has helped create the climate in which this happens.[7]
[7] USDoS, Venezuela 2019 Human Rights Report, page 32, 11 March 2020; Voice of America, Living in Venezuela Now Is Hard, Being LGBT Makes It Harder, 4 February 2019; CS, 27 February 2020; CS, 17 February 2020. 388 Red LHBTI Venezuela, Venezuela es el cuarto país con más asesinatos de personas LGBTI en América, 5 December 2017.
While same sex relationships are not penalised by law, they are penalised in practice.[8] The Constitutional Law Against Hate, for Peaceful Coexistence and Tolerance contains provisions that criminalise hate on the grounds of sexual orientation. However, the law has not been applied in cases of discrimination against LGBT persons. Discriminatory language has been used and continues to be used in public by high-ranking officials, political parties, the media, and others, without consequences.[9]
[8] EASO COUNTRY OF ORIGIN INFORMATION REPORT - VENEZUELA: COUNTRY FOCUS; August 2020.
[9] EASO COUNTRY OF ORIGIN INFORMATION REPORT - VENEZUELA: COUNTRY FOCUS; August 2020.
Confidential sources say that the Venezuelan authorities in particular are responsible for the discrimination against the LGBTI community. AI writes that in Venezuela, human rights defenders, especially those belonging to the LGBTI community, have experienced attacks and mistreatment by government officials.[10]
[10] 'General Country of Origin Information Report Venezuela (June 2020)', Netherlands Ministry of Foreign Affairs, 11 June 2020, 20200806083533; AI, Amnesty International Report 2017, page 395, 22 February 2018.
President Maduro stated in 2021 that LGBTI rights were ‘not a priority’ and authorities continued to ‘deprioritise’ issues affecting this population.[11] It is not uncommon for Maduro and other senior members of the Maduro government to refer to political opponents, regardless of their sexual orientation, with homophobic terms.[12] Legal protection against discrimination against LGBTI persons was lacking in many areas despite laws prohibiting discrimination in employment and housing on the basis of sexual orientation and gender identity. Several sources believe that general confidence in the rule of law in Venezuela has disappeared and that the government’s attitude and the lack of confidence in the rule of law mean that the LGBTI community usually does not report discrimination or aggression against it.[13]
[11] UK, Human Rights and Democracy – The 2021 Foreign, Commonwealth, and Development Office Report, December 2022, pp. 69-70.
[12] General Country of Origin Information Report Venezuela (June 2020)', Netherlands Ministry of Foreign Affairs, 11 June 2020, 20200806083533.
[13] General Country of Origin Information Report Venezuela (June 2020)', Netherlands Ministry of Foreign Affairs, 11 June 2020, 20200806083533.
According to professor Javier Corrales, interviewed by Landinfo in 2020, LGBTI people do not expect assistance from police and in those cases that do end up in the judicial system, they are handled as ordinary crimes.[14] Crimes against LGBTI persons were often not properly investigated, and the Inter-American Commission on Human Rights (IACHR) reported that the ‘State’s opacity persisted’ regarding incidents of violence.[15] There were reports that police were involved in perpetrating violence against LGBTI persons.[16]
[14]Norway, Landinfo, Venezuela: Forhold for LHBT+-personer [Venezuela: Conditions for LGBT+ People], 16 June 2021, p. 3.
[15]USDOS, Country Reports on Human Rights Practices for 2022 – Venezuela, 20 March 2023, pp. 51-53
OAS, IACHR, Annual Report of the Inter-American Commission on Human Rights 2022 – Chapter IV.b: Venezuela, 1 April 2023, para. 159.
[16] Observatorio Venezolano de Violencias LGBTIQ+, I Boletín, 19 October 2022; Norway, Landinfo, Venezuela: Forhold for LHBT+-personer [Venezuela: Conditions for LGBT+ People], 16 June 2021, p. 3; Belgium, CEDOCA, COI Focus: Venezuela - Seksuele minderheden en transgenders [Sexual minorities and transgender people], 4 April 2022, pp. 11-13.
Sources have reported on the impact of the current situation on the position of the LGBTI community in Venezuela. In an interview with Reuters, MP Tamara Adrián says that the ‘crisis’ is hitting an already vulnerable community hard. The LGBTI community’s rights and interests are also affected by the economic and political situation and are not given any priority, according to Adrián. Funding for many NGOs that defend LGBTI rights has been reduced or completely stopped. According to a confidential source, there were about forty organisations working on behalf of the LGBTI community in 2014. By early 2020, that number had been reduced to six, the source said.[17]
[17] General Country of Origin Information Report Venezuela (June 2020)', Netherlands Ministry of Foreign Affairs, 11 June 2020, 20200806083533.
While Venezuela is formally a multiparty constitutional republic, for over a decade political power has been concentrated in a single party, the United Socialist Party of Venezuela (PSUV), with an increasingly authoritarian executive exercising significant control over the legislative, judicial, citizens’, and electoral branches of government. Venezuela does not function as a representative democracy and is experiencing one of the worst economic and political crises in its history.[18]
[18] Freedom House, Freedom in the World 2024- Venezuela, February 2024; United States Department of State, 2023 Country Reports on Human Rights Practices – Venezuela, 22 April 2024.
Human Rights Watch reported that no independent government institutions remain to check executive power. The government stripped power from the opposition-led legislature and represses dissent through often-violent crackdowns on street protests, jailing opponents, and prosecuting civilians in military courts. Maduro and his predecessor Chavez stacked the courts. Supreme Court members have publicly rejected the separation of powers principle and have pledged to advance the government’s political agenda, and the Court has consistently upheld abusive practices.[19]
[19] Human Rights Watch, Human Rights Watch World Report 2019, January 2019.
According to Freedom House, the authorities have closed virtually all channels for political dissent, restricting civil liberties and prosecuting perceived opponents without regard to due process. Although the country’s economy has returned to growth after years of recession, politically driven humanitarian crisis continues to cause hardship and stimulate mass migration.[20] However, over 20 million Venezuelans live in multidimensional poverty with inadequate access to rights-essential goods and services including food and essential medicines. Many are forced to adopt extreme survival strategies.[21]
[20] Freedom House, Freedom in the World 2024 - Venezuela, February 2024.
[21] Human Rights Watch, Human Rights Watch World Report 2025, January 2025.
In the lead up to the 28 July 2024 presidential election, polls favoured the opposition candidate Edmundo González, who was representing an alliance of opposition parties known as the Unitary Platform.[22] On the day following the election, the National Electoral Council, which is loyal to the PSUV, confirmed Maduro’s victory and he was proclaimed President for a further six-year term. The opposition dismissed the outcome as fraudulent, and several countries refused to recognise the results and called for a review with the presence of independent observers. In response, the government expelled diplomatic personnel from seven Latin American countries. Experts who have studied the voting results have described it as the ‘the largest electoral fraud in Latin America’s history’.[23]
[22] Americas Society/Council of the Americas, Explainer: Venezuela’s 2024 Presidential Elections, 11 July 2024.
[23] 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.
Following the announcement of the July 2024 election results, thousands of citizens took to the streets throughout Venezuela, protesting the impartiality of the electoral body and demanding transparency. The protests were met with violent repression by government security forces and government-aligned colectivos, resulting in 25 deaths and hundreds of persons injured or detained.[24] Colectivos, or armed neighbourhood gangs are aligned with the Maduro government,[25] and have served as an unofficial, parallel force to confront demonstrators with impunity. They have been allowed to act with impunity in exchange for their support in repressing anti-government protests and have been involved in criminal activities such as extortion, kidnapping and drug trafficking.[26]
[24] Sources cited in UN Human Rights Council, Detailed findings of the independent international fact-finding mission on the Bolivarian Republic of Venezuela, 14 October 2024; HRC/57/CRP.5.
[25] United States Department of State, 2023 Country Reports on Human Rights Practices – Venezuela, 22 April 2024.
[26] Al Jazeera, Newman L, Venezuela: Who are the colectivos?, 9 May 2019; InSight Crime, Venezuela: A Mafia State?, 17 May 2018.
According to the October 2024 UN Fact-Finding Mission, arbitrary detentions of real or perceived opponents of the government increased during the election campaign and particularly in the days following the election. In response to post-election protests, the government launched a campaign of mass and indiscriminate detentions, while continuing to target opposition and civil society actors. In all cases documented and investigated by the Fact-Finding Mission, the persons were detained without warrants, on charges that had no legal basis, and without informing relatives and friends where they were being taken. In many cases, the detentions were the result of anonymous complaints or through electronic applications such as the ‘VenApp’. The mass nature of the detentions and the uncertainty of what awaited the persons detained caused widespread alarm and fear among the population.[27]
[27] UN Human Rights Council, Detailed findings of the independent international fact-finding mission on the Bolivarian Republic of Venezuela, 14 October 2024; HRC/57/CRP.5.
According to government figures, by 6 August 2024, 2,229 persons – described by the President as ‘terrorists’ – had been detained. According to the NGO ‘Foro Penal’ 1,542 people had been detained throughout the country between 29 July and 24 August 2024. Most of the people detained in the post-election context were not politicians or persons with a known public profile, as was the case in the period prior to the election. Rather, they were persons who expressed their rejection of and dissatisfaction with the government and the announced election results, many of whom were from working-class neighbourhoods, especially young men.[28]
[28] UN Human Rights Council, Detailed findings of the independent international fact-finding mission on the Bolivarian Republic of Venezuela, 14 October 2024; HRC/57/CRP.5.
Government control also extends to media outlets, so social media provides a rare opportunity for Venezuelans to express their opinions.[29] Therefore, social media activism is more significant in Venezuela than it might be elsewhere. As a result, the government monitors social media and uses digital means to control citizens.[30] Following the recent election, the National Police Force initiated a campaign known as Operation Tun Tun, or ‘Operation Knock Knock’, encouraging Venezuelans to report on fellow citizens who challenge the government’s claim to victory, including in their social media profiles. Some of them received a knock at the door from police, who arrested and detailed them.[31] In some neighbourhoods, the homes of families perceived as opponents or critics were marked with an “X”. This campaign extends the government’s reach by enlisting private citizens to report on those who do not support the government.
[29] John Otis, In Venezuela, restrictions and self-censorship limit coverage of opposition ahead of election - Committee to Protect Journalists (cpj.org) 18 July 2024.
[30] Ángela Alarcón, ‘Venezuela’s many means of surveillance and control’ - Access Now, 29 August 2024; Memes, Threats, and Snitching Apps: Maduro’s Weaponized Social Media | Caracas Chronicles, 5 August 2024.
[31] [31] UN Human Rights Council, Detailed findings of the independent international fact-finding mission on the Bolivarian Republic of Venezuela, 14 October 2024; HRC/57/CRP.5.; Venezuela security forces swoop on activists as repression worsens (bbc.com), 9 August 2024.
On 29 December 2016 President Maduro introduced the Carnet de la Patria (or Homeland card); an electronic card which would initially serve to ration and distribute the food sold by the CLAPs and social missions. The process to obtain the Carnet de la Patria commenced from 20 January 2017.[32] Opposition political leaders said the card was a means to collect information to limit political activism.[33] 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’.[34]
[32] Perfil, Maduro launched the "Carnet de la Patria", which will regulate the access to food, 5 January 2017.
[33] 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.
[34] European Asylum Support Office, Venezuela Country Focus: Country of Origin Information Report, August 2020.
According to sources cited in a 2020 Immigration and Refugee Board of Canada report, the Venezuelan authorities introduced in 2016 the Carnet de la Patria to provide economic and social protections for Venezuelans in response to the economic and trade embargos and sanctions imposed on the country with other sources reporting that for the government, it is a method of control or a tool for monitoring and discriminating the population. According to available information, applicants must answer questions on existing health conditions as well as electoral participation and whether they have received any social benefits from the National government. The card can be used to monitor whether a person has voted in elections and reports indicate applicants are required to provide proof of political affiliation. Reports also indicate that a card is required to access pensions and Venezuelans have been practically forced to apply for the card to access benefits.[35]
[35] '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', Immigration and Refugee Board of Canada, 28 January 2022, 20221220152243.
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]
[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.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.[38] The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm.’ It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.
[38] Summaries of the principles relating to credibility findings are provided by the Federal Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ.
Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[39]
[39] Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73].
If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[40] However, the Tribunal is not required to accept uncritically any, or all 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.[41]
[40] MIMA v Rajalingam (1999) 93 FCR 220.
[41] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
On assessing claims of sexual identity, the UNHCR Guidelines on International Protection No.9 notes that:[42]
Ascertaining the applicant’s LGBTI background is essentially an issue of credibility. The assessment of credibility in such cases needs to be undertaken in an individualized and sensitive way. Exploring elements around the applicant’s personal perceptions, feelings and experiences of difference, stigma and shame are usually more likely to help the decision maker ascertain the applicant’s sexual orientation or gender identity, rather than a focus on sexual practices.
[42] UNHCR, “Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees”, 23 October 2012; see: <>
The UNHCR Guidelines on sexual orientation and gender identity indicate that LGBTQI individuals frequently keep aspects and sometimes large parts of their lives secret, and many suppress their sexual orientation and/or gender identity to avoid the severe consequences of discovery, including the risk of incurring harsh criminal penalties, arbitrary house raids, discrimination, societal disapproval, or family exclusion. That an applicant may be able to avoid persecution by concealing or by being ‘discreet’ about his or her sexual orientation or gender identity, or has done so previously, was not a valid reason to deny refugee status. Being compelled to conceal one’s sexual orientation and/or gender identity may also result in significant psychological and other harms.
The Tribunal found the applicant a credible witness. The Tribunal accepts the applicant’s evidence that he is a homosexual. The Tribunal accepts his evidence that he was discreet about his sexuality while living in Venezuela and it is only since he has been in Australia that he has been more open about his sexuality. The Tribunal is satisfied after discussing s367A that the applicant had a reasonable explanation for not raising his claim on the basis of his sexuality at an earlier time. The Tribunal is satisfied with the applicant’s explanation he was unaware he was able to apply for protection on the basis of his sexuality. The Tribunal also accepts his evidence that he is a very private person and did not feel comfortable discussing his sexuality with his then representative.
The Tribunal finds the applicant has knowledge of the history of Venezuelan politics and political events. The Tribunal accepts the applicant’s’ written evidence that he participated in protests and demonstrations against the Maduro government but ceased participating due to the violence he witnessed. The Tribunal accepts the applicant’s written evidence that he participated in several protests while in Australia as well as posted on social media.
The Tribunal finds that his participation in protests and social media posts while in Australia is a continuation of his anti-government views that started while he was living in Venezuela and not to strengthen his claims to be a refugee.
The Tribunal notes the applicant’s parents and sister are employed by private companies and not by the government. Country information indicates that the Maduro government has endeavoured to purge government departments of those who support the opposition which would be consistent with his family being signatories on the Tascon List. The applicant’s evidence is that he was also employed by a private company and would be unable to obtain employment with a government department.
While the Tribunal accepts the applicant has participated in political protests while in Venezuela and in Australia in a limited capacity, the Tribunal finds that he is a low-profile supporter of the opposition. The Tribunal does not accept that he has had or currently has an adverse profile with the Venezuelan government or any non-state actors because of his opposition to the Maduro government.
After considering the applicant’s evidence, and despite concerns over his continued involvement in ongoing protests against the Maduro government, and finding that he is a low-level supporter, the Tribunal accepts the applicant genuinely holds a political opinion in opposition to the Maduro government. The Tribunal finds that the actions and statements of President Maduro and his government against LBBTIQ+ persons has also influenced the applicant’s political views in opposition to the Maduro government.
The Tribunal accepts that if he was to return to Venezuela, he would continue to hold his view in opposition to the Maduro Government.
While the Tribunal notes the applicant has previously been employed in the private sector, the Tribunal is not satisfied on the basis of the country information in relation to the economy that he will be able to easily obtain employment in the private sector after such a long absence from the country. The applicant may be able to return to his family but that would mean that he would not be able to disclose his sexuality due to his father’s opposition.
While same sex activity is decriminalised in Venezuela and there are laws prohibiting discrimination on the basis of sex, country information indicates there is no explicit law prohibiting discrimination on the basis of sexual orientation. While there is a TSJ ruling that no individual may be subject to discrimination because of sexual orientation, the ruling is rarely enforced. Country information indicates there are incidents of discriminatory violence against homosexuals, and many hide the sexuality due to fear of discrimination and becoming a victim of violence. Country information also indicates that the government’s use of discriminatory language and attitude towards LGBTI persons has led to a general lack of confidence in the rule of law by LGBTI persons.
The Tribunal accepts that should the applicant return to Venezuela, he would choose to conceal his sexuality in order to avoid discrimination and becoming a victim of violence. That is, to gain employment he may need to hide his sexuality as he did in the past as well as when applying for a Carnet de la Patria. The Tribunal accepts that modifying or concealing his sexuality should he return to Venezuela, would be to avoid persecution.
The Tribunal accepts the country information that indicates the applicant would need to disclose his personal information as well as his political preferences to obtain a Carnet de la Patria. Without access to this card, the applicant would have difficulty in the current economic climate in Venezuela, particularly if he was unable to obtain family support, accessing essential services as well as food baskets, medicine, and fuel. The Tribunal considers the applicant would need to conceal his political opinion as well as sexuality to obtain a Carnet de la Patria. The Tribunal is satisfied that denial of access to subsidised essential goods and services for reasons of his political opinion and sexuality is capable of amounting to persecution involving serious harm as it is likely to threaten his capacity to subsist, particularly in the current economic climate in Venezuela.
The Tribunal accepts that modifying or concealing his genuine political opinion in opposition to the Maduro Government should he return to Venezuela, would be to avoid persecution.
The Tribunal finds the applicant does not hold a high profile as a political opponent of the Maduro Government but accepts the country information referred to above that the Government has been targeting those with low profiles, in that these are people who expressed their rejection of and dissatisfaction with the government and the announced election results. The Tribunal has regard to the country information indicating that following the July 2024 election, the Venezuelan government has embarked on Operation Tun Tun, or ‘Operation Knock Knock’, encouraging Venezuelans to report on fellow citizens who challenge the government’s claim to victory, including in their social media profiles. The Tribunal also notes the country information that the government monitors social media activism as this is the one means by which Venezuelans have been able to express their opinions.
Considering the above country information, the Tribunal finds that there is a real chance, of the applicant being harmed for any expression of his anti-government political opinion and that this has increased since the July 2024 election. The Tribunal finds the applicant’s sexuality increases his profile and risk in that the anti-gay rhetoric by the President and government officials increases the discriminatory conduct of the population and the country information clearly indicates that such discriminatory conduct goes unchecked by the authorities.
The Tribunal finds that the applicant’s political opinion and sexuality are the essential and significant reasons for the persecution and that the persecution involves systematic and discriminatory conduct as it would be targeted towards him for reasons of his political opinion and sexuality and is non-random. The Tribunal finds the persecution to involve serious harm, including threats to life or liberty and significant physical harassment or ill-treatment.
As the persecution stems from the State, the Tribunal finds that the real chance of persecution relates to all areas of Venezuela and that effective protection measures would not be available to the applicant. The country information indicates that Government opponents are systemically targeted and that government agents, such as the police and national guard, and non-state actors, such as the pro-government Colectivos, are responsible. The Tribunal accepts based on the country information, there is no party or organisation that can provide protection as an alternative to the State.
The Tribunal finds that the applicant could not take reasonable steps to modify his behaviour to avoid a real chance of persecution as such modifications would conflict with a characteristic that is fundamental to his identity or conscience or altering or concealing his true political beliefs or sexuality.
For the above reasons, the Tribunal finds 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.
The Union of South American Nations (UNASUR) provides for entry/residence arrangements for Venezuelan citizens in other UNASUR member countries (currently Bolivia, Guyana, and Suriname). Under an agreement made in December 2006, a citizen of a UNASUR country is permitted to enter another UNASUR country as a tourist without permission to work for up to 90 days using only their national identity card rather than a passport.[43] 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.
[43] Toward a New UNASUR: Pathways for the Reactivation of South American Integration', Guillaume Long and Natasha Suñé , Center for Economic and Policy Research, 18 October 2022, 20221122082032; 'Union of South American Nations Awaiting its resurrection', Fernando Ayala, Meer, 21 April 2021, 20221122130839; 'RUNASUR, a new Latin American regional integration mechanism, created in Bolivia', Peoples Dispatch, 27 April 2021, 20221123094028; >
The Tribunal finds 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, the Tribunal finds that the applicant does not have a right to enter and reside in a third country and s 36(3) is therefore not applicable.
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.
Date of hearing: 21 January 2025
Representative: n/a.
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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