2209728 (Refugee)
[2025] ARTA 1814
•30 July 2025
2209728 (Refugee) [2025] ARTA 1814 (30 July 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2209728
Tribunal:General Member V Price
Date:30 July 2025
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
·the applicants meet s 36(2)(a) of the Migration Act.
Statement made on 30 July 2025 at 12:17pm
CATCHWORDS
REFUGEE – protection visa – Venezuela – political opinion – anti-government corruption – family worked for government – discovered serious mismanagement including embezzlement and fraud – mayor was involved in corruption – family was threatened, harassed, beaten, robbed, kidnapped – corruption is prevalent and involves organised crime – whistleblowing considered political dissent – subject to charges, detention, physical harassment, significant ill-treatment and torture – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 367A, 369, 499
Migration Regulations 1994 (Cth), Schedule 2Any 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 9 June 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (applicant one) is an adult female who states that she is a national of Venezuela. The second named applicant (applicant two) is an adult male and is also states he is a national of Venezuela. He is the husband of applicant one.
The applicants applied for the visas on 1 July 2021. The delegate was not satisfied the applicants satisfied the requirements of s 36(2) of the Act and refused to grant the visas.
The applicants appeared before the Tribunal on 1 July 2025 to give evidence and present arguments. The Tribunal attempted to take evidence from the applicant one’s mother in Venezuela but was unable to establish a stable telephone connection. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
BACKGROUND, CLAIMS AND EVIDENCE
The applicants’ background, claims and evidence were set out in their protection visa application and in their written and oral evidence to the Department and the Tribunal. Their evidence is summarised below.
Applicant one
Background
Applicant one is from Maturin in Venezuela and resided there with her parents and siblings. Her parents were never married and separated when she was a child. They both re-partnered, and she has [half siblings] from her father’s side and [her mother’s side].
Applicant one completed primary and secondary school in Venezuela. She then undertook a [degree] in [Area of study 1] and met applicant two while she was at university. She was employed with various companies in [various departments] and worked as [an Occupation 1]. As discussed below, on weekends she assisted her mother in her work with the local government.
Applicants one and two came to Australia on a student visa, with applicant one studying English language courses. They were married in Australia in November 2018 and are living in a rental property together. They do not have children. Applicant one is currently employed as an [Occupation 2].
Applicant one has one [sibling] in [Country 1] and a [sibling] in [Country 2]. Her remaining family members are in Venezuela.
Protection claims
Applicant one’s grandfather had a [position] with Congress in [Town 1] in [Municipality 1, State 1]. He instilled in the family a strong social conscious and the need to fight for the common good. This view was passed to the whole family, including applicant one.
Applicant one’s mother ([Mother A]) also chose to work in government. She was [an Occupation 3] for [Mayor A] who was running for Mayor at that time. He was successful and then appointed [Mother A] to the role of [Occupation 4], [State 2].
On commencing the role, she [performed Job tasks 1]. Applicant one, who was a university student at that time, assisted her when she was home on the weekends and others in her mother’s office came to know her. [Mother A] and applicant one, discovered serious mismanagement of [Project 1, including embezzlement and fraud].
[Mother A] compiled evidence of the fraud and on several occasions reported it to [Mayor A]. He warned her not to advise the authorities, and not to investigate further and it became apparent he was involved and benefiting from the corruption. Soon after her first meeting with [Mayor A], she was robbed on her way to work and, among other things, the official stamp for [Project 1] was stolen. Her colleague advised her not to report the theft of the stamp, and a few days later it showed up in her office, leading she and applicant one to believe the robbery was a warning perpetrated by those in league with the mayor.
Applicant one’s mother was regularly harassed by a local criminal gang with connections to the mayor, his political support base, and [Project 1]. They threatened to harm [Mother A] and applicant one and demonstrated they had been following applicant one. In December 2015, applicant one was approached directly and verbally intimidated and asked to pass on a warning to her mother.
In January 2016 workers in the mayor’s office and people connected with a large petroleum company tried to directly engage [Mother A] in the corruption. She refused and the threats against she and applicant one increased. Applicant one came to Australia as a student, in part to escape the threats.
In 2017, after applicant one was in Australia, her mother made official complaints against one of the corrupt security guards. Shortly thereafter, applicant one’s [sibling], then [age], was kidnapped. Her mother reported him missing to the police: but he was returned later that night. He had been threatened and told to advise her mother to remain silent.
The threats against their family continued: her [siblings] were shot at, and luckily the bullets missed. The perpetrators again referenced their mother and her actions. Her mother tried to resign, but instead, to keep her under surveillance but out of their way, she was moved to a new position. Applicant one’s [siblings] were followed and beaten, and her mother’s house was robbed. The police arrested the perpetrators, but they were then released.
Her mother continues to live in fear and on high alert. There is now a new mayor, but he was part of the same enterprise as [Mayor A], so the threats against her continue. Her [siblings] have moved and ceased contact with their mother for their own safety. However, she would not do that: she would return to live with or near her mother and support her in the future. If applicant one returns to Venezuela she faces threats, ongoing harassment, kidnapping and sexual violence.
Applicant one also fears harm as a woman, and as a returnee from a long period of residence in a Western country.
Applicant two
Applicant two is from Puerto Ordaz, Bolivar in Venezuela. He completed primary and secondary school and then undertook undergraduate and post-graduate degrees in [Area of study 2]. He met applicant one at university.
In Venezuela, he was employed as [an Occupation 5] and came to Australia as a student with applicant one. They were married here and reside together. He is currently working at [Workplace 1]. Apart from applicant one, his family are all in Venezuela.
He has not experienced harm or persecution in Venezuela and does not fear harm on return. He is relying on the claims of applicant one to satisfy the visa requirements. He stated that during their residence in Venezuela, he and applicant one discussed the issues arising due to the work of her mother, and the help she provided with [Job tasks 1]. He was aware of the threats and witnessed firsthand the stress and fear experienced by applicant one.
Evidence before the Tribunal
The following supporting material was before the Tribunal:
·Protection visa application, audio recording of applicant one’s interview with the delegate.
·Statements from applicant one dated 1 July 2021 and 22 June 2025.
·Psychologist’s reports for applicant one dated 9 May 2022 and 20 June 2025.
·Identity documents for the applicants.
·Evidence of the employment of applicant one’s mother. [1]
·Report of theft at [the project location] made by applicant one’s mother dated [September] 2015.
·Request for [record] for Mr [A] send to [Law enforcement agency 1], dated [December] 2015.
·Record of handing over property made by [Law enforcement agency 2], dated [November] 2020, listing the property stolen from the home of applicant one.
·A missing person’s report made to the police in Venezuela in 2017.
·Request for [certificate] made to applicant one’s mother in her capacity as [an Occupation 4 for Project 1] dated March 2017.
[1] Official designation for her role as [an Occupation 4]: employment certificates issued by the Mayor’s office dated 2016, 2019 and 2022; and a position transfer notice dated 2019.
The Tribunal has considered the claims and evidence before it when assessing this matter and has also had regard to relevant country information as set out below.
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.
New Evidence s 367A of the Act.
In accordance with s 367A of the Act, if the Tribunal is satisfied that an applicant does not have a reasonable explanation for not raising or presenting claims or evidence before the primary decision was made, the Tribunal is to draw an adverse inference regarding the credibility of those matters.
To the extent the applicants have provided new claims and evidence that were not before the Department, I accept this was submitted directly to address concerns and findings raised by the delegate in the decision record. I find that there are reasonable explanations for failing to provide the new evidence before the making of the primary decision. I find that s 367A of the Act does not apply. I am not required to draw an adverse inference of the credibility of any new claims and evidence, and I do not do so.
REASONS AND FINDINGS
Nationality and s 36(3)
The applicants have provided evidence of their Venezuelan nationality. I accept they are nationals of Venezuela and find that this is their receiving country.
Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. Relevantly, where a non-citizen has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply.
There is nothing in the evidence before me to indicate that the applicants have a current right to enter and reside in any country apart from Venezuela, and I am not satisfied that is the case. I find that s 36(3) does not apply.
Issues for consideration
The issues in this case are whether the applicants have a well-founded fear of persecution on return to Venezuela or, if not, whether they face a real risk of significant harm in that country.
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Refugee Assessment
Among other things, applicant one has claimed to fear harm on return to Venezuela due to corruption she and her mother identified during [Job tasks 1 of Project 1]. Relevantly, Information confirms that [Mayor A] was the mayor of the [State 2] region.[2]
Country information regarding current circumstances in Venezuela[3]
[2] [Details deleted]
[3] Aspects of this information were cited by Tribunal in ART Decisions 2102204, 2405280 and 2108995 and have included here as relevant to the claims and circumstances of the applicant in this case.
Following the death of Chávez in March 2013, vice-president Nicolás Maduro took over running of the country, and was elected president in April of that year.[4] In the years following his election, Maduro consolidated control over the executive, systematically dismantled checks and balances in other branches of the government, and weakened political opposition, becoming increasingly authoritarian.[5] Meanwhile the economy collapsed, leading to widespread dissatisfaction with people blaming the governments’ policies for the economic climate.[6]
[4] Netherlands Ministry of Foreign Affairs (NMFA), 'General Country of Origin Information Report Venezuela, 11 June 2020 (NMFA 2020 Report), page 6.
[5] NMFA 2020 Report, page 6.
[6] NMFA 2020 Report, page 6
Maduro was re-elected for a further term in 2018, and again in 2023.[7] However, the outcome of the 2023 election in particular is viewed by independent commentators as fraudulent.[8] Examinations of credible voting tallies showed that opposition candidate, Edmundo González Urrutia, won the presidency.[9] A warrant was issued for his arrest, and he was forced to flee the country in September.[10] In the wake of this, credible international commentators state that the Venezuelan authorities continue to detain and punish government critics and have closed off virtually all channels for political dissent, restricting civil liberties and prosecuting perceived opponents without regard for due process.[11]
[7] NMFA 2020 Report, page 6 and 7; and Freedom House, ‘Freedom in the World 2025- Venezuela’, (Freedom House 2025 Report), March 2025; OSAC, ‘Venezuela Country Security Report’, 12 March 2025 (OSAC 2025 Report); Human Rights Council (HRC), ‘Report of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela’, A/HRC/57/57, 17 September 2024, pages 5-6; HRC, ‘Detailed Findings of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela - A/HRC/57/CRP.5 ‘,14 October 2024, pages 99- 132; and Human Rights Watch (HRW), ‘World Report of 2025- Venezuela’, 16 January 2025, (HRW 2025 Report) pages 523-529.
[8] Freedom House 2025 Report; HRW 2025 Report; and OSAC 2025 Report.
[9] Freedom House 2025 Report; HRW 2025 Report; and OSAC 2025 Report.
[10] Freedom House 2025 Report; HRW 2025 Report; and OSAC 2025 Report.
[11] Freedom House 2025 Report; HRW 2025 Report; OSAC 2025 Report; HRC, ‘Detailed Findings of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela - A/HRC/57/CRP.5 ‘,14 October 2024, pages 99- 132; and HRC, ‘Report of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela’, A/HRC/57/57, 17 September 2024, pages 5-6.
Mass protests following the purported re-election of Maduro were met with disproportionate force by security forces and pro-government armed groups, including the so-called Colectivos’, and tear gas and live ammunition were used to disperse crowds.[12] Approximately 24 people were killed, mostly young men, and the number of political prisoners rose dramatically as the government violently cracked down on dissent. The authorities launched ‘operation’ Tun-Tun’ (Operation Knock Knock)’, sending security forces to the homes of individuals who participated in the protests or who had voiced opinions critical of the government, to arrest them.[13] The government also established two prisons specifically to hold these political prisoners.[14] Over 2,400 people were arbitrarily arrested in the two weeks following the election.[15] President Maduro described these individuals as ‘terrorists’.[16]
[12] Freedom House 2025 Report; HRW 2025 Report; OSAC 2025 Report; HRC, ‘Detailed Findings of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela - A/HRC/57/CRP.5 ‘,14 October 2024, pages 99- 132; and HRC, ‘Report of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela’, A/HRC/57/57, 17 September 2024, pages 5-6.
[13] HRC, ‘Report of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela’, A/HRC/57/57, 17 September 2024, pages 5-6; and
[14] Freedom House 2025 Report.
[15] Freedom House 2025 Report; HRW 2025 Report; OSAC 2025 Report; HRC, ‘Detailed Findings of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela - A/HRC/57/CRP.5 ‘,14 October 2024, pages 99- 132; and HRC, ‘Report of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela’, A/HRC/57/57, 17 September 2024, pages 5-6.
[16] Human Rights Council, Detailed Findings of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela - A/HRC/57/CRP.5 ‘, 14 October 2024, page 110.
The government initiated an intimidation campaign to demonstrate the consequences of criticising the government on social media.[17] Videos of arrests and of detainees apologising for criticizing Maduro were published, and supporters of the regime marked the houses of critics and opposition supporters with a black “X’.[18] Citizens were encouraged to report political protests and suspected dissidents through a government backed app, and many people were detained for expressing critical opinions regarding the election on social media and in WhatsApp conversations.[19]
[17] Freedom House, 2025 Report
[18] Freedom House, 2025 Report.
[19] Freedom House 2025 Report.
There are numerous mechanisms by which the government and government supported agencies, monitors the population. Several Chinese companies provide the government with technical assistance to implement cyber surveillance mechanisms against dissidents and the political opposition, including by facial recognition.[20] The government also manipulates and controls information, blocking digital platforms including Twitter, WhatsApp, Facebook, and Instagram.[21]
[20] European Union Agency for Asylum (EUAA), 'Venezuela: Country Focus (November 2023)', 16 November 2023, (EUAA 2023 Report), pages 29-31.
[21] EUAA Report, page 31-97.
The government also requires individuals to hold a ‘Carnet de la Patria’ (Homeland Card) to access health care, housing, pensions, petrol, and food provided through the Local Committee of Supply and Production, among other things. To obtain the card, citizens must provide their identification number, telephone number, address, date of birth and gender, and the card has a QR code which must be scanned by holders on every use.[22] Commentators consider it is used to track citizens, including their political preferences and to identify those who do not support the government.[23]
[22] EUAA Report, page 31-97; NMFA 2020 Report, pages 28-29: IRBC ‘VEN200881.E - Venezuela: Requirements and procedures to obtain the Homeland Card (Carnet de la Patria); content, appearance, and security features; social services available for holders; availability of documentation to prove that a person does not posses’, 28 January 2022 (IRBC 2022 Homeland Card Report).
[23] EUAA Report, page 31-97; NMFA 2020 Report, pages 28-29: IRBC 2022 Homeland Card Report.
The National Assembly approved a law enabling the suspension of nongovernmental organizations (NGOs) accused of promoting hate speech or fascism or engaging in political activities.[24] Further, pursuant to existing laws, insulting the president is punishable by six to 30 months in prison without bail, and there are lesser penalties for insulting lower-ranking officials.[25] Crimes for inciting hatred and terrorism are used to silence criticism by activists and journalists, and carry sentences of up to 30 years in prison.[26]
[24] Freedom House 2025 Report.
[25] United States Department of State (USDOS),'Country Reports on Human Rights Practices for 2023 - Venezuela', 22 April 2024 (USDOS 2024 Report), page 25.
[26] HRC Detailed Findings of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela - A/HRC/57/CRP.5 ‘,14 October 2024, page 131; NMFA 2020 Report; and USDOS 2024 Report page 25.
Corruption is a problem at all levels of government in Venezuela and involves organised crime.[27] Transparency international stated that the main reason for the widespread corruption were impunity, systematic institutional weaking and a lack of transparency in the management of government resources.[28] In a 2023 report this organisation stated that control of the justice system, and national armed forces, has been key to nationalised corruption and criminal activity with guaranteed impunity for certain groups.[29] The report stated that, among other measures, the appointment of individuals close to power groups and the dismissal, imprisonment and torture of members of the judiciary who rule against the interests of those in power has led the Venezuelan justice system to remain passive in the face of crime and to shelter it, guaranteeing impunity for certain groups. Moreover, the system anticipates the needs of powerful officials and issues rulings that favour them, even when they are knowingly committing serious human rights violations.[30]
[27] USDOS 2024 Report page 43; EUAA Report pages 16—18, 33, 39 and 69; see generally NMFA 2020 Report; HRW 2025 Report; Transparencia Venezuela, ‘Illicit Economies Under the Cloak of Impunity- Executive Summary’, October 2023 (TV 2023 Report); and Immigration and Refugee Board of Canada, 'VEN201808.E - Venezuela: Treatment of suspected whistleblowers and former government employees by authorities and pro-government groups (colectivos; circulos bolivarianos); whether current government employees are required to participate in activities pro', 4 March 2024 (IRBC Whistleblower Report).
[28] USDOS 2024 Report page 43:
[29] TV 2023 Report.
[30] TV 2023 Report.
Security agencies and progovernment groups are used to monitor and intimidate government whistleblowers and former employees, and their family members. [31] Those who denounce corruption are treated as political dissidents and are subject to charges and detention. [32] The International Crisis Group stated that any criticism of the government or entities, even in private, is seen as treachery or even treason and can result in imprisonment. Former civil servants and law enforcement agents constitute a large population of political detainees, corroborating underling political motivations behind their arrest and incarceration.[33]
[31] IRBC Whistleblower Report.
[32] EUAA Report page 69.
[33] IRBC Whistleblower Report.
The Maduro regime maintains a state-controlled media infrastructure promoting its political and ideological program.[34] Freedom House and other agencies report that independent Venezuelan media operate within a restrictive regulatory and legal environment.[35] Reports state that at least 405 media outlets had closed in the 20 years preceding 2024.[36] Further, in 2024 alone, at least 14 radio stations were forced to cease operations, and approximately 60 digital media outlets were arbitrarily blocked, along with at least nine sites discussing human rights issues.[37] Journalists face constant targeting, threats of reprisals, harassment, arbitrary detention, stigmatisation, and obstruction of news coverage.[38] Many journalists faced persecution after reporting about corruption, with between eight and 12 journalists imprisoned for post-election commentary in 2024.[39]
[34] Freedom House 2025 Report.
[35] Freedom House 2025 Report; USDOS 2024 Report; Amnesty International (AI), ‘'The State of the World's Human Rights: April 2025', 28 April 2025, (AI 2025 Report) pages 394-398)
[36] Freedom House 2025 Report.
[37] Freedom House 2025 Report.
[38] EUAA Report page 65
[39] Freedom House 2025 Report; AI 2025 Report page 396.
There are credible reports that critics of the government and political and other activists experience treatment amounting to serious harm and torture during periods of questioning, arrest, and detention. Numerous sources including the Human Rights Council, the United States Department of State (UDSOS) and the European Union Agency for Asylum (EUAA), report that law enforcement agencies, the military, pro-government groups and prison guards, regularly beat and humiliate suspects and, among other things, there are reports of individuals being raped, asphyxiated, electrocuted, and subjected to waterboarding.[40] The 2023 EUAA report states that torture is used to obtain confessions and information, to punish, humiliate, intimidate, coerce, and/or to extort detainees.[41] Extortion within prisons is common by prisoners and authorities, with ‘protection’ fees ranging from 5 to 50 USD; non-payment usually results in acts of torture and homicide.[42]
[40] EUAA Report Pages 23-24; USDOS 2024 Report, pages 6-7:and HRC Detailed Findings of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela - A/HRC/57/CRP.5 ‘,14 October 2024, page 126; and HRC, ‘Report of the Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela’, A/HRC/57/57, 17 September 2024, pages 7, 9, and 13-14. 317103.
[41] EUAA Report page 23-24
[42] EUAA Report page 23-24
Argentina has recently issued arrest warrants against Maduro, his Minister of Interior, and over a dozen government officials and members of the security forces, in relation to alleged crimes against humanity.[43] The International Criminal Court has also authorised an investigation into alleged crimes against humanity in the country and the UN Human Rights council passed a resolution to investigate post-election repression and violence.[44]
[43] HRW 2025 report page 526
[44] HRW 2025 Report page 526.
Freedom House states that Venezuelans arriving in the country by air are required to have a valid Venezuelan passport or special travel documents.[45] If an individual had spoken out against the government, participated in anti-government protests, or belongs to a known political opposition group, there is a risk of imprisonment, persecution and enforced disappearance upon their return to Venezuela.[46]
Assessment of claims
[45] Freedom House 2025 Report.
[46] IRBC,’ Venezuela: Requirements and procedures to re-enter Venezuela after travelling abroad; treatment of Venezuelans who have travelled abroad, including those who have sought asylum (2017-October 2019)’, 23 March 2020.
Having regard to documentary evidence provided, as well as applicant one’s credible written and oral evidence, I accept that her grandfather was involved in politics in Venezuela, and that her mother also chose to work with the government. I accept applicant one’s mother worked on the election of the mayor [Mayor A], that she was appointed [as Occupation 4 for Project 1], and that she and to some degree applicant one who assisted her on weekends, uncovered corruption in the running of [Project 1] and that this involved [Mayor A] and local criminal organisations. I accept that her mother repeatedly attempted to report these activities to [Mayor A] (initially not realising he was involved) and that he was therefore aware she and applicant one had knowledge of the corruption. I also accept that attempts to coerce her mother into participating in the corruption failed and that she lodged at least one police report regarding theft of materials from the [project location].
Applicant one’s evidence was consistent with independent information, above that whistleblowers, and their families are viewed as political dissidents/critics of the government, and they are monitored, subject to surveillance and intimidation. I accept that her mother was regularly subject to harassment, threats, robberies and acts of intimidation. I also accept that applicant one and her [siblings] were threatened, her [sibling] was kidnapped and that both her [siblings] were shot at. I also accept that applicant one was approached and threatened while shopping. I accept that whistleblowers, and their family members, like other political activists, are subject to harm and potentially imprisonment.
I accept that applicant one’s mother remains in a government position but was effectively demoted due to her actions. I accept there is a new mayor, who is part of the same enterprise as [Mayor A]. Consistently with the above information, I also accept that as a former whistleblower she remains subject to monitoring and that the threats against her have continued. In these circumstances, even though the events occurred some time ago, I find the consequences of those events are ongoing.
I accept and place weight on the information above, that a person’s profile would be known to the authorities in Venezuela. I accept that the authorities are highly likely to have information on applicant one and her mother. I accept that there is a real chance she will be detained and questioned, either at the airport, or on return to her home area. I give weight to information above that actual and imputed political dissenters are subjected to mistreatment amounting to significant physical harassment, significant ill-treatment and torture. I accept here is a real chance she will experience this treatment.
Even if she is not taken into custody on or soon after her arrival into the country, I accept that she will return to the home of the mother where she will be subjected to the same ongoing and routine harassment and threats, which I accept amounts to significant psychological harm. I also find that there is a real chance that she will be kidnapped and/or shot at, like her [siblings] were in the past, and find that this amounts to serious harm as intended by the Act.
Applicant two has stated that he has not experienced past harm or threats in Venezuela and did not expressly raise claims to fear harm on return to the country in the future. In my view, a claim to fear harm due to his actual or imputed political opinion arises on the material and on my factual findings above.
In Venezuela, applicant two was not living with applicant one, and nor were they married and in this context, I accept he was not subject to the same treatment as applicant one’s family. However, they have since married and I find they would reside together on return to Venezuela, nearby or with applicant one’s mother. As such, I find that there is a real chance that he too will be imputed to be critical of the government and will also be subjected to harassment, surveillance, intimidation and threats. There is also a real chance he will experience significant physical ill-treatment for this reason.
On the totality of the evidence before me, including the accepted claims and evidence and the independent country information, I find that the applicants have a real chance of serious harm on return to Venezuela now or in the reasonably foreseeable future for the essential and significant reason of their actual or imputed political opinion. I find this treatment amounts to systematic and discriminatory conduct.
Applicant one stated that her [siblings] have been able to escape further attention by moving elsewhere. As such I have also considered whether this would apply to the applicants. However, I am not satisfied that this is the case: unlike her [siblings] who have ceased all communication and contact with their mother, I find that applicant one will not do so and even if they reside elsewhere, she and applicant two will have maintain contact. Further, unlike her [siblings], applicant one had direct involvement with assisting her mother uncover the corrupt activities and is therefore a target in her own right. As the perpetrators of the harm are the government and agencies or armed groups acting for the government, I find that the real chance of harm arises throughout the country, and that effective protection measures are not available to the applicants.
I find that it would not be reasonable for applicant one to modify her behaviour, as to do so conflicts with a characteristic that is fundamental to her identity and conscience, requires her to alter or conceal her true political beliefs and to conceal an immutable characteristic (being her relationship to her mother and past activities in discovering the corruption). In the case of applicant two, I find that he would be required to conceal an innate or immutable characteristic (being his relationship with applicant one and his mother-in-law), and that he would be required to alter or conceal his true political beliefs. These are impermissible modifications for s 5J(3) of the Act. I find s 5J(3) does not apply.
On the totality of the information before me, I find that the applicants have a well-founded fear of persecution.
For the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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 applicants meet s 36(2)(a) of the Migration Act.
Date of hearing: 1 July 2025.
Representative: Ms Paghona Peggy Kerdo
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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