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AC (Venezuela) [2019] NZIPT 801438 (8 May 2019)

Last Updated: 2 July 2019

IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND

[2019] NZIPT 801438-439

AT AUCKLAND

Appellants: AC (Venezuela)

Before: S A Aitchison (Member)

Counsel for the Appellant: I Uca

Counsel for the Respondent: No Appearance

Dates of Hearing: 18 and 19 March 2019

_{Date of Decision: 8 May 2019}

_DECISION

[1] This is an appeal against a decision of a refugee and protection officer declining to grant refugee status or protected person status to the appellants. The first appellant, the mother, is a citizen of Venezuela and Colombia, and the second appellant, her son, is a citizen of Venezuela and Spain.

INTRODUCTION

[2] The appellants are a family, comprising a mother and her son, aged nine years. Because the son is a minor, his mother acted as his responsible adult at the hearing in accordance with section 375 of the Immigration Act 2009 (“the Act”).

[3] The appellants claim to be at risk of serious harm at the hands of colectivos (armed civilian groups, including Tupamaro) who support the government) in Venezuela because of the mother’s history of opposition to the government and given her profile with Tupamaro who have targeted her for extortion. They also claim that they are at risk of harm from the same groups in Colombia. For ease of reference, the Tribunal refers to Tupamaro and colectivos synonymously throughout this decision.

[4] With respect to Spain, it is claimed that the son, as an unaccompanied minor, will be unable to practically access the protection of Spain and will thus be denied protection there.

[5] Complex nationality issues arise for consideration. While there is no dispute that the mother is a dual national of Venezuela and Colombia, and the son a dual national of Venezuela and Spain, the Tribunal must also consider whether it would be a mere formality for the son to be recognised as a national of Colombia. The complexities of recognition of a third nationality, the associated issue of renunciation of a nationality, and the lack of parental consent to do so also arise for consideration.

[6] Given that the same claim is relied upon in respect of all limbs of the appeal, it is appropriate to record it first.

THE APPELLANTS’ CASE

[7] The account which follows is a summary of the evidence given by the mother in support of her and her son at the appeal hearing. Three witnesses, AA, BB, and CC, also gave evidence at the hearing. The evidence is assessed later.

Evidence of the Mother

Family, education and work experience

[8] The mother was born in the early 1980s in Maracay, Aragua, Venezuela and is a dual citizen of Venezuela and Colombia. Her father was born in Cúcuta, Colombia and emigrated to Venezuela in his early 20s after completing a tertiary degree in economics. Her mother was born in Venezuela and is a citizen of Venezuela.

[9] The mother has five siblings, including two half siblings. Her parents divorced in 1999, and she lived with her mother and three of her siblings (two brothers and a sister), in the family home in Caracas. Her father started another family with a new partner and their two daughters are now aged 15 and 17 years.

[10] The mother completed her primary and high school education in Caracas. She completed diplomas in marketing and advertising and human resources in 2004 and 2006, respectively. While completing her studies she was employed as a marketing surveyor.

Political affiliations and employment

[11] The mother supported the opposition political party, the Primero Justicia. As a student, she attended regular protests against the government and, in 2003, she signed a petition demanding that the government hold a referendum to remove President Hugo Chávez. Most of her family also signed the petition. In 2004, the Chávez regime distributed a list of several million voters who had attempted to remove the president from office through a referendum, known as the Tascón List. The mother and other members of her family were on the list.

[12] In December 2004, the mother briefly entered into employment at the Centro Nacional Electoral, where she had been recruited, as an administrator, to issue nationality identity cards. However, a month later she was dismissed from this employment as she had signed the petition against the president. The mother’s inclusion on the Tascón List meant that she was precluded from receiving social benefits, and she experienced delays in her requests for official documentation.

[13] The mother was subsequently employed in a variety of roles, including as a shop manager. In 2006, she was employed in a bank as a bank teller and was later promoted to a sales position in the bank. The mother continued to attend protests against the government on a regular basis.

Ex-partner and son

[14] In February 2007, the mother entered into a relationship with CC, a dual citizen of Venezuela and Spain. At the time, he owned a business in Caracas. Their son was born on 26 November 2009, and the couple’s relationship ended in December 2011.

[15] CC has three other children to separate partners, including an 18-year-old daughter who lives in Caracas with her mother, a son who lives in New York with his mother, and an infant daughter, whose living circumstances are not known. His parents are deceased, and he has a sister who lives in Venezuela.

The mother’s Colombian citizenship

[16] In 2012, the mother’s father applied for Colombian citizenship for the mother’s two half-sisters. The mother also made an application for Colombian citizenship at this time. She provided a copy of her father’s Colombian identity card and her birth certificate to the Colombian Consulate in Venezuela for this purpose.

In July 2013, the mother was issued with a citizenship identification card from

Colombia.

Restaurant business and extortion from the colectivo

[17] In November 2012, the mother, along with one of her brothers and her ex- partner, opened a restaurant business in Caracas. The restaurant was located beneath the apartment where she lived with her mother and son. The mother continued her work in the bank and assisted in the restaurant on weekends.

[18] A month after the restaurant was opened, two members of Tupamaro visited the restaurant asking for the mother’s brother. The assistant relayed this message to the family. The following day, they returned to the restaurant and met the brother, demanding payment of 3,000 Venezuelan Bolivars (“VEF”) every 10 days. The brother agreed to the arrangement and payments were made accordingly. Other businesses in the area were forced to make similar payments.

[19] In June 2003, the brother was intercepted by colectivo when returning from the bank with money he had withdrawn to pay suppliers. They assaulted him and took all the money in his possession. The brother reported the incident to the police, but they viewed him as an opponent as he had signed the Tascón List, and they provided him with no assistance. The brother decided to stop paying the colectivo.

[20] On 26 July 2013, colectivo came to the restaurant and sought payment from the brother. He refused to pay. As a consequence, the men kidnapped him and severely beat him. He was later hospitalised and received medical treatment. From this point in time, he ceased his involvement in the restaurant and made arrangements to leave the country. He went into hiding and left the country in January 2014, travelling to Italy, where he was recognised as a refugee.

[21] In her brother’s absence, colectivo started demanding payment from the mother and she agreed to pay them. At the same time, she resolved to sell the restaurant and gave notice to all staff in preparation for closing the restaurant. In March 2014, the restaurant was closed. The following month, colectivo accosted her outside the restaurant and demanded that she continue to pay them. Fearing for her safety, she agreed to do so.

[22] In December 2014, when the mother was driving away from the parking area at the bank where she worked, she was stopped at a traffic light by a member of the colectivo who stared at her. She became anxious and told her employer that she

wanted a transfer to another branch. In July 2015, as she was picking up her son from afterschool activities, two colectivo on motorcycles approached her and called her by name, then left.

[23] The mother continued to oppose the government. In 2015, she signed a petition against President Maduro and, in early 2016, she attended a protest in support of new elections and signed a petition to this effect. She attended other protests relating to election fraud, and in opposition to the president and his imprisonment of political opponents. She continued in her support for the Primero Justicia and Mesa de la Unidad Democrática parties.

[24] In April 2016, the mother’s ex-partner sold the lease to the restaurant. Colectivo continued to threaten the mother and demanded that she continue to make payments to them.

[25] On 26 June 2016, when entering the carpark at her residence with her son, the mother saw four men on motorcycles enter the carpark behind her. She asked the guard on duty who the men were, and he responded that he did not know. The mother entered her car and waited for the men to leave. However, one of the motorbikes approached and blocked her car. One of the men got off his motorcycle and tapped her car window with a gun. He demanded that she and her son get out of the car, and she did as instructed. The man patted her down and took her wallet, which contained her bank cards, bank security pass, and her mobile telephone. The men told her that they were aware that she had recently sold the lease to the restaurant and they demanded that she pay them VEF60,000. They asked her to accompany them to withdraw the money. She refused, telling them that the bank imposed daily withdrawal limits for employees. They then instructed her to meet them that evening and make payment. As the men left, they forcibly took a vehicle from another owner.

[26] The mother immediately went home with her son and told her mother about the incident. She called her ex-partner and discussed the situation with him. She then called the bank to cancel her bank cards and bank security pass. She reported to the police station in the afternoon, but was referred to three separate police departments, and was unsuccessful in lodging any complaint. She knew this was because her identity card revealed her as a government opponent. All that the police would do was to sign a list she had prepared for them of items that had been stolen from her.

[27] The mother withdrew the money as requested and, together with her ex-partner, met colectivo outside the restaurant and handed over the sum to them.

Travel to New Zealand

[28] In July 2016, fearing for her and her son’s safety, the mother made arrangements for her and her son to travel to New Zealand. She applied for student visas for her and her son which were approved in August 2016. They departed Venezuela on 30 September 2016 and arrived in New Zealand on 6 October 2016.

[29] While living in New Zealand, the mother hoped that the political situation in Venezuela would improve and that she and her son could return. However, as the situation continued to worsen, she considered it necessary to lodge claims for refugee and protection status for her and her son on 16 January 2018.

Continued extortion of family in Venezuela

[30] In November 2016, the mother’s mother was contacted by colectivo who asked her to make payments to them. She fled the country and travelled to New Zealand on 22 December 2016. She returned to Venezuela on 6 May 2017. However, she was again contacted by colectivo demanding payment. She made the payments as requested until her family arranged for her to again leave the country. In August 2017, she travelled to Italy and, in November 2017, she travelled to the United States. In March 2018, she returned to Italy where she now lives with one of her sons.

The son’s citizenship

[31] The son is a dual citizen of Venezuela and Spain. He was issued a Venezuelan passport in April 2016, valid until April 2021, and a Spanish passport in September 2016, valid until September 2021 on the basis of his father’s Spanish citizenship. He may also be a Colombian citizen. However, the son’s father will not permit him to acquire Colombian nationality because this would require him to renounce his Spanish nationality (which does not allow for a person to hold a third nationality). He does not consider it safe for his son to reside in Colombia. The son is also unable to renounce his Venezuelan nationality until he is 18 years of age.

The mother’s family’s current living circumstances

[32] One of the mother’s brothers moved to Italy in 2008. Her other brother moved there in early 2014 and was recognised as a refugee in 2016. The mother’s sister moved to New Zealand in July 2014 and continues to live here with her family as the holder of a temporary visa.

[33] The mother’s father lived in X, Venezuela, until December 2018, when living conditions and lack of food and resources forced him to move with his partner and two daughters, aged 15 and 17 years, to a Venezuelan town on the border with Colombia known as Z town, in Y state. The living conditions in X had deteriorated to such an extent that living there became impossible. Since their move to Z town, the youngest daughter has enrolled at a school in Cúcuta, Colombia, and the mother’s father has been escorting her across the border each day to attend school. The eldest daughter is in the process of trying to enrol in university in Colombia, but she cannot do so without apostilled papers (the requirement to have documents legalised by the issuing authority in Venezuela, a system that has not been operational in the last three years). The family have found it more affordable to live in Venezuela and cross the border for education purposes and to source food. However, at the current time, the border is closed, and having crossed into Colombia, the family have not been able to return to Venezuela. The border crossing has inherent dangers as payments to guerrilla groups are required and it is dangerous to cross the river when the current is strong.

[34] The family are staying in the living room of the father’s deceased grandmother’s home in Cúcuta, which the father co-owns together with 10 other siblings, two of whom live in the home in Cúcuta, and the remaining eight still live in Venezuela. The father’s two brothers who live in Cúcuta work as street vendors and struggle to support their families. The father also has a cousin who is dependent on dialysis and who lives with his mother in the house. The other rooms of the collective home have separate entrances and are rented out to businesses. The rent from these rooms is used to pay for utilities and rates, and a small profit is then divided amongst the siblings. They are endeavouring to sell the home to raise funds to sustain their daily living needs.

[35] The mother’s father has attempted to find employment and separate accommodation in Colombia, but at 69 years of age, and without certified documentation, he has been unable to achieve either. In order to obtain a rental lease, an applicant requires two guarantors, a property without debt and employment. They must also receive a monthly income of at least twice the cost of

the proposed rent. Personal identification and a credit history is also required. Such onerous conditions are compounded by the reality that discrimination against Venezuelans is commonplace.

The mother’s fears

[36] The mother fears harm from colectivo in Venezuela should she and her son return there. She considers that they operate throughout the country and their city branches are interlinked. The simple use of her identity card would reveal her as a government opponent and she would be identified as such by colectivos and the authorities throughout Venezuela. It is not safe for her to live with her son anywhere in the country. The mother fears links between the colectivo and other guerrilla groups in Colombia, and that colectivo have been joining BACRIM groups (from the Spanish “bandas criminales”, meaning criminal bands or groups) in Colombia and engaging in criminal activity.

[37] Venezuela is in significant economic decline and there are no employment opportunities or basic resources, such as food and health care. Her son has lactose intolerance and needs a balanced diet. He also needs medicated cream for allergic skin reactions. Medical supplies are not available to treat his condition there. The country is also experiencing significant power outages.

[38] The mother has been the son’s primary caregiver since his birth and he needs her parental care and guidance. The mother does not consider that she and her son could live safely in Colombia. The son’s father would not permit him to renounce his Spanish nationality which would be necessary in order to acquire Colombian nationality. Venezuelans who are now living in Colombia face xenophobia, and even citizens such as the mother are still identified as Venezuelans by their appearance and their manner of speech. They are discriminated against in seeking employment, accommodation and in day-to-day life. Venezuelan women are called derogatory terms such as “benikas”, which translates as someone who sells themselves for “arapa” (a pot of food). Some women are entering into prostitution simply to feed their children.

[39] The government has not been providing certified legal documentation for over three years and the mother has been unable to obtain certified copies of her qualifications. Without these, the mother will be unable to corroborate her education background and find employment in Colombia. If she were able to find even menial work, such as selling food on the streets, she would still not be able to make ends meet and cover her and her son’s expenses as a single mother. To obtain a rental

lease she would need two guarantors and be able to demonstrate a minimum income of USD400 a month in order to pay an average rent of USD200 a month. She would not be able to pay for food and her son’s education as well.

[40] The mother fears for her son’s psychological health as he has experienced panic attacks since their kidnapping in Venezuela. Upon arrival in New Zealand, he and the mother underwent six months’ counselling for post-traumatic stress disorder, and the son also attended four sessions with a meditation therapist. The son was unable to be left alone and needed his mother’s presence at all times. With psychological help he has now been attending school in New Zealand. She considers that behaviour in schools in Colombia is “more aggressive” than in Venezuela or New Zealand and her son would have difficulty adjusting. He would need to commence his education at a more elementary level than what he has been used to in New Zealand. He would be discriminated against as a Venezuelan.

Evidence of AA

[41] The mother’s brother, AA, gave evidence to the Tribunal by telephone from Italy. He also provided information relating to his asylum application in Italy, including a copy of “Minutes of Statement Given During the Personal Interview to the Ministry of Internal Affairs of the Territorial Commission for the Recognition of International Protection of Florence” (9 March 2017).

[42] AA left Venezuela on 8 January 2014 after being targeted by colectivo for extortion in connection with the restaurant business he owned together with the mother and her ex-partner. A month after they had opened the restaurant, he was forced to make extortion payments to the group. On one occasion, when returning from the bank with money to pay suppliers, he was robbed by the group and beaten. A month later, they kidnapped him and severely beat him. He received medical treatment and attempted to report the matter to the police, but they did not take his complaint seriously. He immediately ceased his involvement in the restaurant and made arrangements to leave the country. He departed Venezuela for Italy in January 2014, and upon arrival there made a successful asylum claim. He is now a resident of Italy and has been living in Italy since this time. Since his departure, his sister has been forced to make payments to the colectivo, and she and her son were subjected to an express kidnapping by them on one occasion. The nature of kidnappings vary, and some are colloquially known as “express kidnappings”, situations where individuals are held by colectivos and other criminal groups for a short period, usually several hours, in order to instil fear and make extortion

demands. When the restaurant was sold, colectivo demanded a substantial payment from her, which she complied with. She then made arrangements to leave the country with her son. Upon her departure, their mother was harassed by colectivo who sought to extort money from her. The family arranged for her to leave the country and she travelled to the United States, New Zealand and Italy. When she returned to Venezuela in 2017, she was again harassed by colectivo for money and could not remain there. She is currently living with her two sons in Italy as the holder of a temporary visa.

[43] The brother is doing his best to support his family members to find a safe place to reside. The mother’s ex-partner will not permit her son to renounce his Spanish nationality and acquire Colombian nationality and live there. Colombia has a high crime rate and paramilitaries operate across borders between Venezuela and Colombia, including in Cúcuta.

[44] The brothers are sending financial support from Italy to their father who is residing with his partner and two daughters in the Venezuelan border town of Z. He is finding it difficult to find employment and accommodation in Cúcuta, where he plans to live. Venezuelans are discriminated against and face escalating rents and other prohibitive costs.

Evidence of BB

[45] BB, the mother’s mother, provided a statement to the Tribunal (28 February

2018) and gave evidence by telephone from Italy.

[46] BB’s daughter signed a petition against the late Hugo Chavez and was dismissed from her employment at the Venezuelan National Electoral College. Since this time, she has been “blacklisted” by the government, and her name is included on the Tascón List used by the government to discriminate and harass citizens.

[47] In 2012, BB’s son, daughter and her ex-partner began a business partnership to operate a restaurant in their neighbourhood. At that time, the Tupamaro, a criminal armed group who indirectly support the government, began harassing them because of their political views against the government, and they began to regularly extort money from them. The daughter and her son were kidnapped by the group in 2016. After the son and daughter fled the country, members of the group approached BB to extort money from her. After visiting family abroad from December 2016 and returning in May 2017, they approached her again from money.

They sent people looking for her, left threatening notes for her, and questioned neighbours about her. She was forced to leave the country again and is now living with one of her sons in Italy.

[48] It is not safe for the mother and son to return to Venezuela as they will be targeted by colectivos.

Evidence of CC

[49] CC provided two statements (5 April 2018 and 25 February 2019) and gave evidence by telephone from Venezuela. He is a dual citizen of Venezuela and Spain and holds passports for both countries.

[50] CC holds a degree in industrial engineering and a master’s degree in business economics and logistics. He speaks the English, French and Spanish. He worked for 25 years as a business owner in Caracas. However, due to the deteriorating economic climate in Venezuela, 85 per cent of his clients have downsized or closed operations. Venezuela is facing the highest inflation rate in world history, and hundreds of thousands of citizens are leaving the country each month. Most foreign companies have closed down in Venezuela fearing international sanctions for conducting business with the “usurper government”.

[51] On 23 February 2019, the government refused to receive humanitarian aid supplied by the United States of America, the European Union, non-governmental organisations, and many other countries. It blocked the Colombian and Brazilian borders by force. Criminal organisations, including the colectivos, support the regime, soldiers and police officers.

[52] CC has been forced to leave his rented apartment in Caracas and live in a small apartment, in the town of Caraballeda, owned by his parents. He is living off his savings and financially supporting his two daughters who remain in Venezuela. He hopes to leave the country soon.

[53] CC has attempted to obtain certified copies of his personal and career documents in order to seek employment abroad, but he has not been able to do so. Although it is possible to pay bribes to the government, for ethical reasons he refrains from doing so. He has made enquiries about various options for employment in Spain but unemployment rates there are “huge” and at 52 years of age it would not be easy for him to find employment. He has considered moving to Chile, Argentina or Brazil.

[54] The mother and son were forced to leave Venezuela owing to threats they received from colectivo who extorted money from the mother, her brother, and CC through their restaurant business. The mother and son were kidnapped by the colectivo on one occasion, and both the brother and CC were threatened and beaten by the criminal group in 2013.

[55] CC would not consent for his son to renounce his Spanish citizenship and acquire Colombian citizenship. Spain does not permit a national to hold more than two nationalities. He would not sign permission for his son to travel to Colombia. He shares joint custody with the mother for his son and must agree to his son’s movements across international borders. He signed an authorisation for his son travel to New Zealand with his mother, as he considered that New Zealand would be safe. His son depends on his mother and needs to be with her. He (the son) suffered psychological harm owing to threats and the kidnapping incident at the hands of colectivo. He has experienced repeat panic attacks and has been very insecure and afraid. He is afraid of staying away from his mother even for short periods of time. His condition has improved in New Zealand and he is a good student here.

[56] Colombian citizens discriminate against Venezuelans whom they perceive to be competing for scarce resources, including employment, housing and medical treatment. Unemployment is a serious issue in Colombia and is worsening with the large influx of Venezuelans into the country. When Venezuelans are able to find employment, they receive low remuneration. There are now two million Venezuelans in Colombia, who find themselves rejected and discriminated against by the general populace. The mother would readily identify as Venezuelan by her appearance, manners and speech.

Material and Submissions Received

[57] On 5 March 2019, counsel provided an updated statement from the mother (5 March 2019) and a further statement from her ex-partner (25 February 2019). She also provided copies of correspondence between the mother and the Consulate of Spain (February 2019) and between the mother and the Consulate General of Colombia in Auckland (February 2019); in addition to several country reports.

[58] On 14 March 2019, counsel provided submissions and further country reports.

[59] At the hearing on 18 March 2019, the Tribunal provided the mother and counsel with country reports and relevant decisions of the Tribunal’s predecessor, the Refugee Status Appeals Authority (“RSAA”). After the hearing on 18 March

2019, counsel also provided a copy of an email from the mother, recording notes from a conversation with her father that afternoon concerning his living circumstances.

[60] On 29 March 2019, counsel provided copies of identity documents for the three witnesses, namely the biodata page of their passports.

[61] On 8 April 2019, counsel provided further documentary evidence, including a copy of the son’s Venezuelan birth certificate with apostille (including an English translation), and email exchanges between the mother and the Colombian embassy (4, 5 April 2019).

ASSESSMENT

[62] Under section 198 of the Immigration Act 2009, on an appeal under section 194(1)(c) the Tribunal must determine (in this order) whether to recognise the appellant as:

(a) a refugee under the 1951 Convention Relating to the Status of

Refugees (“the Refugee Convention”) (section 129); and

(b) a protected person under the 1984 Convention Against Torture

(section 130); and

(c) a protected person under the 1966 International Covenant on Civil and

Political Rights (“the ICCPR”) (section 131).

[63] In determining whether the appellant is a refugee or a protected person, it is necessary first to identify the facts against which the assessment is to be made. That requires consideration of the credibility of the appellant’s account.

Credibility

[64] The Tribunal finds the mother’s evidence to be credible. The evidence of the three witnesses who gave evidence to the Tribunal is also accepted.

The facts as found

[65] The mother, in her late 30s, is a national of Venezuela and Colombia. The son, aged nine years, is a national of Venezuela and Colombia. His father is also a national of Venezuela and Spain.

[66] The son has lived in the care of his primary parent, his mother, his entire life and there are no plans for him to live in the care of his father, who currently resides in Venezuela, in the future. While there is no formal custody agreement, it is agreed between the parents that the son live with his mother as his primary parent and that the father be consulted in significant decisions about the son’s life. Both parents are engaged in determining where the son can safely live and concerning his nationality and identity. Prior to his travel to New Zealand, the father signed a travel authorisation for his son. The father has three other children, who live with their respective mothers.

[67] From 2014, the mother was targeted by colectivo who sought to extort money from her in association with the restaurant business she co-owned with one of her brothers and her former partner (the father of her son). Her brother and former partner were threatened and assaulted by colectivo causing them to cease business operations. At the end of 2013, the brother departed Venezuela and was recognised as a refugee in Italy.

[68] The mother was subjected to threats and a kidnapping incident, together with her son, in June 2016. She was forced to make extortion payments to the colectivo up until the time she and her son travelled to New Zealand in July 2016. Since her departure, colectivo have demanded that her mother make extortion payments to them. Her mother has since departed Venezuela and currently resides in Italy.

[69] The mother’s father is currently living with his partner and two daughters in Cúcuta, Colombia, a town on the border of Venezuela. They left X in Venezuela owing to a deterioration in humanitarian circumstances. They initially moved to the border town of Z and were in the habit of crossing the border daily into Colombia to source food and supplies. However, a border closure has forced them to remain in Cúcuta, Colombia.

[70] Since their arrival in New Zealand, the mother and son have visited a counsellor, who has diagnosed them as suffering from post-traumatic stress disorder (“PTSD”). The mother has received counselling over a six-month period to assist her and her son with their condition. The son has also attended sessions with

a meditation therapist. Since the kidnapping incident in Venezuela, the son has experienced repeat panic attacks and separation anxiety when apart from the mother.

The Refugee Convention

[71] Section 129(1) of the Act provides that:

“A person must be recognised as a refugee in accordance with this Act if he or she is a refugee within the meaning of the Refugee Convention.”

[72] Article 1A(2) of the Refugee Convention provides that a refugee is a person who:

“... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

[73] In terms of Refugee Appeal No 70074 (17 September 1996), the principal issues are:

(a) Objectively, on the facts as found, is there a real chance of the appellant being persecuted if returned to the country of nationality?

(b) If the answer is yes, is there a Convention reason for that persecution?

Assessment of the Claim to Refugee Status

[74] For the purposes of refugee determination, “being persecuted” requires serious harm arising from the sustained or systemic violation of internationally recognised human rights, demonstrative of a failure of state protection: DS (Iran) [2016] NZIPT 800788 at [114]–[130] and [177]–[183].

[75] In determining what is meant by “well-founded” in Article 1A(2) of the Refugee Convention, the Tribunal adopts the approach in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, where it was held that a fear of being persecuted is established as well-founded when there is a real, as opposed to a remote or speculative, chance of it occurring. The standard is entirely objective: Refugee Appeal No 76044 (11 September 2008) at [57].

Nationality of Appellants

[76] According to Article 1A(2), the evaluation of refugee status is undertaken by reference to conditions in a refugee claimant’s state of nationality. Article 1A(2) relevantly provides that a refugee is a person who:

“owing to well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence..., is unable or, owing to such fear, is unwilling to return to it.

In the case of a person who has more than one nationality, the term 'the country of his nationality' shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.”

[77] Complex issues of nationality arise in these appeals which concern multiple nationality; overlapping and distinct nationalities for parent and child; the prospect of the renunciation of the child’s nationality in order to gain another; and the lack of the consent of one of the child’s parents to do so. In order for the Tribunal to determine these appeals, it is necessary to consider, in particular, the phrases

‘country of his nationality’ and being ‘unable or, owing to such fear...unwilling to avail himself of the protection of that country’.

[78] A variety of notions have been introduced by decision-makers, academics, practitioners and commentators to assist in the interpretation of the phrase ‘country of his nationality’ where such nationality is not present but is, arguably, available. Such concepts include ‘inchoate nationality’, ‘prospective nationality’ and ‘effective nationality’. For reasons explained below, some approaches assist the inquiry whereas others, such as the notion of ‘effective nationality’ are too broad in scope and application and, in fact, obscure rather than clarify the meaning of nationality.

Country of nationality

[79] To begin, it is necessary to explain that the notion of ‘country of nationality’ is distinct from nationality as a Convention ground within the meaning of Article 1A(2). While the concept of a ‘country of nationality’ is politico-legal in nature, signifying membership of a territorial authority recognised as a state under international law, the latter use of nationality connotes an internal defining, historico-biological characteristic denoting membership of a nation: P Weiss in Nationality and Statelessness in International Law (2nd ed, Sijthoff & Noordhoof, The Netherlands,

1979) at pp3-4. It is the former meaning of nationality which concerns the Tribunal in this decision. Such nationality manifests as a legal bond, conferring reciprocal rights and duties upon recipients: 1930 Convention on Certain Questions Relating to the Conflict of Nationality Law; Nottebohm Case (Liechtenstein v Guatemala) [1955] ICJ Reports 4 at p20.

[80] Questions of nationality are principally within the jurisdiction of the state, insofar as they are consistent with general principles of international law: I Brownlie Principles of Public International Law (5th ed, Clarendon Press, Oxford, 1998), at p385. A person may be a national even if the state in question is unable or declines to confirm this: P Weiss Nationality and Statelessness in International Law (2nd rev ed, Sijthoff & Noordhoff, The Netherlands, 1979) at pp88-91, 121, 162. Nationality may be extant when not documented by a national passport or where there has been no formal recognition or indication of status by the competent authorities of the state in question.

[81] The fact of an individual’s dual nationality may even be obscured where one of the nationalities has not been utilised. As explained by R Piotrowicz in “Lay Kon Tji v Minister for Immigration & Ethnic Affairs: The Function and Meaning of Effective Nationality in the Assessment of Applications for Asylum” (1999) 11(3) International Journal of Refugee Law 544, 555 (Piotrowicz (1999)):

“Citizenship law often works in this way. Because many countries allow their nationality to be passed on purely by birth to a parent of that nationality (jus sanguinis), it means that nationality of such countries can be passed on for generations, and hence possessed by individuals who have no idea of their status. The nationality laws of Poland and Germany, for instance, operate in this way. Individuals may be unaware of their Polish or German nationality, but they possess it, whether they like it or not. Should they wish to activate it, for instance by applying for a passport or taking up residence, they do so on the foundation of that existing status: they do not acquire nationality. Portugal’s law operates in the same way: East Timorese who seek the rights of Portuguese citizenship are not acquiring a new status: they are formalising an existing entitlement which has been with them since the moment of birth.”

[82] The incorporation of nationality in Article 1A(2) as a closely defined concept in international law provides a relatively concrete, hard-edged test for the country of reference for risk analysis, and promotes consistency in decision-making. The plain language of the refugee definition clearly defines the country of reference as the state of which the applicant is a national. Unless and until surrogate protection is afforded by another country under international law, protection is owed by a country of nationality only, and the use of the present tense implies that nationality is held at the time of refugee determination.

[83] Some early commentators, and more recently, other practitioners and decision-makers such as E Fripp and H Storey have extrapolated, from the above, fundamental precepts that protection is not owed by a country to which there is any connection short of actual nationality as delineated in the applicable national law, and that nothing in Article 1A(2) implies any qualification of such nationality: H Storey Nationality as an Element of the Refugee Definition and the Unsettled Issues of ‘Inchoate Nationality’ and ‘Effective Nationality’ (11 June 2017) at www.reflaw.org. However, other academics, including J Hathaway and M Foster, have equated ‘a country of nationality’ as not only including a reference to a country within the meaning of Article 1A(2), where such status is held at the time of determination, but also where recognition of, and access to, such nationality would be a mere formality.

Inchoate nationality

[84] An ‘inchoate nationality’ reflects the position that an individual is to be treated as a national of a particular country on the basis of a pre-existing nationality (which is apparent from an assessment of the law of the state in question), notwithstanding that this status has not yet been formally recognised by the authorities. Such nationality simply needs to be recognised by request and will be afforded on a non- discretionary basis. This is distinct to cases of prospective or potential nationality, where such nationality would need to be acquired and could not be conceived of as actual nationality.

[85] Fundamentally, the acceptance of an inchoate nationality as sufficing as nationality for the purposes of Article 1A(2) reflects the underlying aim of the Convention in providing surrogate protection only where national protection is unavailable: Canada (Attorney General) v Ward [1993] 2 SCR 689, 709 (“Ward”); Refugee Appeal No 523/92 Re RS (17 March 1995); and Butler v Attorney General [1999] NZAR 205. This aim permeates Article 1A(2) through the repeated specification that every relevant nationality be considered. In the case of a person who has more than one nationality, such person is required to first avail him or herself of the protection of each one of the countries of which he or she is a national. To be recognised as a refugee, he or she must establish a well-founded fear of being persecuted in each country of nationality. The importance of this is clearly that no person should be recognised as a refugee unless he or she is either unable or unwilling to avail him or herself of the protection of all countries of which he or she is a national.

[86] As Hathaway and Foster explain (in The Law of Refugee Status (Cambridge

University Press, Cambridge, UK, 2014), at pp58-59):

“At least when a country’s nationality is available for the asking and could be acquired by means of a non-discretionary formality, there is indeed a strong substantive logic to treating that state as a country of reference. Taking account of the object and purpose of the treaty, it can reasonably be said that a country with which an applicant has a ‘genuine link’ and that has made its citizenship available to an applicant is, in substance, a country of nationality for refugee law purposes.

...

... the citizenship actually exists in embryonic form and needs simply to be activated by means of a request that will clearly be acceded to. Where an individual possesses inchoate nationality, there is no principled basis to distinguish her circumstances from those of a person born with dual or multiple nationality, whose claim would of necessity be assessed by reference to each of her countries of citizenship.”

[87] Early application of the notion of inchoate nationality can be seen in the oft- cited Canadian case of Bouianova v Canada (Minister of Employment and Immigration) (1993) 67 FTR 74 (“Bouianova”). That case concerned the applicant had resided in Latvia prior to lodging a claim for refugee status in Canada and had been a national of the USSR which dissolved in December 1991. After the dissolution, the appellant’s birthplace fell within the Russian Federation, a successor state to the USSR. In a credibility basis hearing, the panel found her to be a citizen of the Russian Federation. It had received correspondence from the Russian Embassy to the effect that the applicant was a Russian citizen (unless she wanted to become a citizen of another state) and would simply need to send a copy of her passport with a letter requesting Russian citizenship and the embassy would put the necessary stamp in her passport. Rothstein J found:

“In my view, the applicant, by simply making a request and submitting her passport to be stamped becomes a citizen of Russia. On the evidence before me, there is no discretion by the Russian officials to refuse her Russian citizenship. I do not think the necessity of making an application, which in these circumstances is nothing more than a mere formality, means that a person does not have a country of nationality just because they chose not to make such an application.”

[88] The Tribunal has consistently applied the inchoate nationality doctrine, including in several cases of state succession, and in the context of the acquisition of nationality by descent. However, in each of the following cases it found that logistical and practical barriers to formal recognition (such as the unavailability of documentary evidence to establish nationality, or the inability to comply with generalised procedures for acquisition of nationality in cases of state succession) were prohibitive to the appellants’ nationality being recognised as a mere formality: AG (Ukraine) [2016] NZIPT 800883; AN (Russia) [2018] NZIPT 801132; AB (Iraq) [2011] NZIPT 800014, at [35]–[58].

[89] The approach taken by the Tribunal is consistent with case law in the United Kingdom, early authorities in Australia and Canada: see KK and others (Nationality: North Korea) Korea CG [2011] UKUT 92 at [67] (“Korea GC [2011]”); GP and others (South Korean citizenship) North Korea CG [2014] UKUT 391 (IAC) (“North Korea CG [2014]”); Jong Kim Koe v Minister for Immigration and Multicultural Affairs [1997] FCA 306, 143 ALR 695 (“Jong Kim Koe”); Tiji, Lay Kon v Minister for Immigration & Ethnic Affairs [19, 98] FCA 1380, 158 ALR 681 (“Lay Kon Tiji”); Bouianova; Katkova v Canada (Minister of Citizenship and Immigration) (1997) 130 FTR 192, ACF No

29 (“Katkova”).

[90] It is relevant to record the position of the United Kingdom as explained in the decision of Korea CG [2011], where the Upper Tribunal distinguished between three possible scenarios concerning recognition of nationality, which encompass actual and inchoate nationality in the first two instances, and that of prospective nationality in the third, at [4]:

“The phrasing of the references to nationality in Article 1A(2) is in the present tense:

‘has more than one nationality’; ‘countries of which he is a national’. It may be necessary to draw clear distinctions between three possible situations. The first is where a person has nationality of more than one country: that is to say each of the countries in question recognises him as a national. The second is where a person is entitled to a nationality of a second country; that is to say that recognition of his nationality will depend on an application by him, but on the facts his nationality is a matter of entitlement, not of discretion. The third is where a person may be able to obtain nationality of a second country: that is to say, where it cannot be said that, on application, he would be recognised as a national, but that he might be granted nationality. The difference between the first and the second situation is of status, not of documentation. A person may be a national of a country that has not yet issued him with any documentation evidencing that nationality. Such a person exemplifies the first situation, not the second.”

[91] In Canada, a body of law has grown since the Bouianova decision which has extended the application of this decision beyond its original rationale, treating ‘the country of his nationality’ as including a country which an individual could acquire: Canada (Minister of Citizenship and Immigration) v Williams 2005 FCA 126 (“Williams”). Subsequent Canadian decisions have treated Williams as authority for finding that ‘country of nationality’ extends to the predicament where it is ‘within the control’ of the refugee claimant to acquire that nationality. As can be seen from the above, this latter approach is not supported by comparative jurisprudence and is contrary to the views of most authorities and commentators, as it risks seriously undermining the critical protection against refoulement: Fripp, pp172 and 196; Hathaway and Foster (2014), pp57–64, 58,59.

[92] Having regard to the above, the Tribunal sees no basis to depart from its adopted position on inchoate nationality. This position is consistent with the

principles of treaty interpretation espoused in Article 31(1) of the 1969 Vienna Convention on the Law of Treaties. The ordinary meaning of the present tense “is a national”, in the light of a purposive interpretation of the surrogacy principle, clearly encompasses a person who is a national according to law, and for whom it would be a mere formality to gain recognition.

[93] The narrow scope of inchoate nationality which coheres to a strict legal interpretation of nationality, requiring recognition as a mere formality, is distinct from the notion of ‘effective nationality’, which is expansive in scope and inconsistently applied across jurisdictions. The utility of this expression, and its relevance to these appeals, is explored below.

Effective nationality

[94] The concept of effective nationality appears in a variety of contexts, with distinct meanings, in international law. It may be used to differentiate between nationalities on the basis of greater effectiveness in respect of some specified incident(s) of nationality (such as in cases of diplomatic protection); to depict that nationality is ‘effective’ in that it encompasses all incidents thought to attach to possession of nationality or to identify a minimum content beyond the existence of a legal relationship of membership; and to depict a status that is not a nationality in the legal sense but displays characteristics parallel to nationality: Fripp at pp52–53. As can be seen, its scope is vast and, it follows from this that its use in refugee law has not been consistent or clear.

[95] The notion that nationality within the meaning of Article 1A(2) may be ineffective, “as it does not entail the protection normally granted to nationals” is expressed in paragraph 107 of the UNHCR Handbook and states:

“There will be cases where the applicant has the nationality of a country in regard to which he alleges no fear, but such nationality may be deemed to be ineffective as it does not entail the protection normally granted to nationals. In such circumstances, the possession of the second nationality would not be inconsistent with refugee status.”

[96] Professor Hathaway later introduced a more fulsome outline of the concept of effective nationality, equating the concept with effective protection. He has expressed the view that nationality should be effective rather than simply formal, as de jure entitlement to nationality may not afford realistic access to protection. He explained the concept in his text (J C Hathaway The Law of Refugee Status (Butterworths, Canada, 1991)), and stated at 59:

“The major caveat to the principle of deferring to protection by a state of citizenship is the need to ensure effective, rather than merely formal, nationality. It is not enough for example, that the claimant carries a second passport from a non-persecutory state if that state is not in fact willing to afford protection against return to the country of persecution. While it is appropriate to presume a willingness on the part of a country of nationality to protect in the absence of evidence to the contrary, facts that call into question the existence of basic protection against return must be carefully assessed.

...

The dilemma here is a logical extension of concern to ensure effective nationality before assessing the adequacy of a refugee claim: only the degree of risk in those states that are known to be obliged to allow the re-entry of the claimant is relevant, as it is to one of those states that the putative refugee would in most cases be sent back if not admitted to the country of refugee.”

[97] Together with Professor Foster, in the more recent text (Hathaway and Foster

(2014)), the authors further elaborate the concept at 57:

“[T]he issue of effectiveness focuses squarely on ‘a range of practical questions’...That is to say, one essential element in the concept of an ‘effective nationality’ is the recognition of the existence of nationality by the State of nationality. Similar concerns of ineffectiveness would arise where the benefits of nationality, while theoretically available, cannot in practice be accessed by the applicant. This would be the case, for example, where the applicant is unable to travel to or enter the territory in which the rights associated with nationality are in principle available...Where practical impediments of this kind preclude availment of a de jure second or other citizenship, the putative second nationality is not effective on the terms of Art. 1(A)(2) itself.”

[98] These passages have been often cited in the jurisprudence of Convention states, including in Australia, Canada and New Zealand.

[99] In New Zealand, for a country of nationality to qualify as a reference country within the meaning of Article 1A(2), a refugee claimant must have non-discretionary access to effective nationality: see AN (Russia) [2018] NZIPT 801132 at [82]; AG (Ukraine) [2016] NZIPT 800883 at [28]; AB (Iraq) [2011] NZIPT 800014 at [37]. As stated in AB (Iraq) [2011] NZIPT 800014 at [37]:

“The protection must not be illusory, however. Neither notional, nor merely asserted, nationality will suffice. What must be established is effective protection, because protection in name only is, of course, no protection at all. The starting point for establishing effective protection must thus be the recognition of nationality by the state in question. This was the view reached in Lay Kon Tji v Minister for Immigration and Ethnic Affairs [1998] FCA 1380; (1998) 158 ALR 681, at pp 693-696, where it was held by Finkelstein J that an essential element in the concept of an ‘effective nationality’ is the recognition of the existence of that nationality by the state in question.”

[100] Whilst the position in Australia has been circumscribed by its legislation, reducing the scope for development of the concept of ‘effective protection’, early case law, including Jong Kim Koe and Lay Kon Tiji (as cited by the Tribunal in the quotation above) have expounded on this notion: Fripp at pp228-229. The case of

Lay Kon Tiji concerned the question of whether refugee claimants from East Timor were also Portuguese citizens under the law of that country and, if so, what incidents of protection were attached. There, Finkelstein J depicted the concept of an effective nationality as:

“... [a] nationality that provides all of the protection and rights to which a national is

entitled to receive under customary or conventional international law.”

[101] In Canada, an effective nationality has been regarded as comprising elements such as recognition of the nationality by the state of nationality and the absence of practical impediments to accessing the benefits of nationality: Dolma v Canada (Minister of Citizenship and Immigration) 2015 FC 703.

[102] The approach taken in each of these jurisdictions has been the subject of criticism by some commentators and academics. Fripp, at p187, states that the Tribunal’s decision of AB (Iraq) failed to appreciate that the question of nationality hangs on the nationality law of the state rather than the presence of protection, when it found the appellant did not have the effective protection of the French state as a national and that recognition as such would be a mere formality.

[103] With respect, the Tribunal’s decision in AB (Iraq) is detailed, and thorough. The Tribunal does not intend to recite in full the facts here. It suffices to say that the appellant’s claim stemmed from a jus sanguinus acquisition of nationality from his mother, which required him to establish that she was French, that she was his mother, and that the relationship had been established at some point during the appellant’s minority. To complicate matters, the documentary evidence available to the appellant consisted solely of a photocopy of his mother’s Iraqi identity document issued in 1979.

[104] The Tribunal did not err by failing to apply the nationality law of France in a straightforward fashion and thereby finding that the appellant was not a French national. It correctly applied the notion of inchoate nationality and found that, owing to documentary deficiencies, recognition of the appellant’s French nationality would not be a mere formality. However, at paragraph [37] of this decision, the Tribunal went further and identified that an essential element of the concept of an “effective nationality” is the recognition of the existence of that nationality by the state in question. As found above, the question of recognition of nationality falls within the scope of “is a national” within the ordinary meaning of Article 1A(2), and is addressed by the question as to whether recognition of nationality would be a mere formality, not whether nationality or protection would be effective. As such, there remains for consideration the issue of unnecessary conflation of the notion of a

‘country of nationality’ with those of effective nationality and effective protection; a matter to which the Tribunal will return.

[105] R Piotrowicz also critiques the approach taken in the Australian case of Lay Kon Tiji, which he claims extrapolates beyond the sanction of the Convention, that the protection “ordinarily granted to nationals” imposes a requirement of complete equivalence in the situation of nationals within a State. He states that this standard is too generous to claimants and that there is nothing in the Refugee Convention which suggests that it is designed to ensure complete protection of all internationally recognised rights: Piotrowicz (1999); see also Fripp at 228.

[106] It has also been suggested that the Canadian courts’ practice of examining plural nationalities and considering whether they are ‘effective’ may represent a form of dislocated balancing to alleviate the effect of its over-expansive approach of equating ‘the country of his nationality’ with States of potential future nationality’: Fripp at p225.

[107] By contrast, in the United Kingdom, the concept has not been relied upon. It has been regarded as superfluous to the ordinary wording of Article 1A(2), as it simply reflects the core issue of the availability of protection in the country in question: Korea CG [2011] at [67]; North Korea CG [2014].

[108] In Korea CG [2011], the Upper Tribunal held:

“67. Secondly, it is clear that the issue is the availability of protection. If an individual has protection available to him from a country of which he is a national, the Refugee Convention is not engaged. That is not the same as saying that a person of dual nationality is not a refugee. Such ought to be obvious. What is less obvious, but clear from Jong Kim Koe, is that a country of nationality which is not itself a country of persecution may nevertheless be a country in which the applicant has a ‘valid reason based on well-founded fear’ for not availing himself of its protection.”

[109] In similar terms, concerning the use of similar notions, de jure and de facto nationality, the Supreme Court of Judicature Court of Appeal in MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 289 (“MA (Ethiopia)”), found that such concepts obscured rather than illuminated the question of nationality, stating at [42] (emphasis added):

“Having said that, I do not think that it is either necessary or desirable for these concepts to be employed as they were. The issue in asylum cases is always whether the applicant has a well founded fear of persecution on return, and she will have that well founded fear if there is a real risk that she will face persecution. In this case the issue was perceived to be whether she would face the risk of being denied her status as a national, it being assumed that his would, if established, constitute persecution to the requisite standard. To have recourse to concepts of de jure and de facto nationality is likely to obscure rather than to illuminate that question....”

[110] While used in a relatively narrow sense in New Zealand, and as carefully circumscribed by academics such as Hathaway and Foster, it is apparent from the above overview that, from its opaque origins in the UNHCR Handbook, the notion has been used variably across jurisdictions. It has been used in over-expansive terms in Australia; in what could be conceived as “a corrective potion” in Canada; and in a manner conflating two distinct, yet interrelated concepts of nationality and protection in New Zealand. As such, it is appropriate to take a step back and contemplate the utility of the term in the interpretation of Article 1A(2).

[111] The lack of clarity and consistency in the application of the notion of effective nationality amongst state parties to the Refugee Convention is incompatible with the general rule that a treaty should be given an independent meaning capable of common application by all state parties. As stated by Lord Steyn R v Secretary of State for the Home Department; Ex parte Adan (Lul Omar) [2000] UKHL 67; [2001] 2 AC 477 (HL) at pp516–17:

“[A]s in the case of other multilateral treaties, the Refugee Convention must be given an independent meaning... without taking colour from distinctive features of the legal system of any individual contracting state. In principle therefore there can only be one true interpretation of a treaty.... In practice it is left to national courts, faced with a material disagreement on an issue of interpretation, to resolve it. But in doing so it must search, untrammelled by nations of its national legal culture, for true autonomous and international meaning of the treaty. And there can only be one true meaning.”

[112] Further, the use of this notion has led to error and imprecision in decision-making. There is no basis in the ordinary meaning of the text of Article

1A(2), to qualify a nationality as ‘effective’. Whilst the Tribunal acknowledges the fundamental obligation of ‘effective protection’ which permeates the Refugee Convention, it is a mischaracterisation to qualify the meaning of a ‘country of his nationality’, which has precise definition in national jurisdictions and international law; see AL (Myanmar) [2018] NZIPT 801255, paras [129]-[137]. As will be discussed more fully below, matters of ‘effectiveness’ directly relate to protection, and should be approached methodically in a downstream inquiry after the countries of nationality, in a clearly defined legal sense, have been identified. It is the phrase “unable and unwilling to avail him or herself of the protection of a country of nationality”– which denotes the protective arms of the Refugee Convention and where any questions of effective state protection fall for consideration. This establishes the link between the possession of nationality (while maintaining the politico-legal integrity of that term) and the availability of protection by the country concerned.

[113] The UK authorities are correct, the core issue is protection. As stated, too, by the RSAA in Refugee Appeal No 135/92 (18 June 1993), a fundamental premise on which the Convention is based is that of national protection. At page 26, the RSAA stated:

“the question is one of protection and is to be approached fairly and squarely in terms of the refugee definition, namely whether the applicant:

‘....is unable or, owing to such fear, is unwilling to avail himself of the protection of

that country.’

In other words, the proper questions to address are the questions of protection, inability, unwillingness and the presence of a well-founded fear for one of the recognized Convention reasons.”

Unable or unwilling

[114] At this juncture, it is helpful to take a closer look at the phrase “is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country”. The phrase has been referred to as one of two key clauses in the refugee definition, namely, the ‘protection clause,’ with the other known as ‘the well-founded fear clause’: see J Hathaway and M Foster “6.1

Internal Protection/Relocation/Flight Alternative as an Aspect of the Refugee Status Determination” in E Feller, V Turk and F Nicholson (eds) Refugee Protection in International Law – UNCHR’s Global Consultations on International Protection (Cambridge University Press, 2003) at pp357 and 365. The elements of well- founded fear and protection are, to some extent, intertwined and the decision-maker must consider the State’s ability and willingness to respond to the identified risk of serious harm: Ibid at p366.

[115] According to the refugee definition, a state’s duty of protection is engaged “though an expression by or on behalf of an applicant of inability or unwillingness to avail himself or herself of the protection of the relevant country or countries”: Michigan Guidelines on Well-Founded Fear (28 March 2004). As stated by the Supreme Court of Canada in Ward at 720:

“[T]he distinction between these two branches of the ‘Convention refugee' definition resides in the party's precluding resort to state protection: in the case of ‘inability', protection is denied to the claimant, whereas when the claimant is ‘unwilling', he or she opts not to approach the state by reason of his or her fear on an enumerated basis...”

[116] The RSAA considered the distinction between these branches of the definition in Refugee Appeal No 11/91 Re S (5 September 1991), explaining (with particular reference to the views of Atlee Grahl-Madsen), that ‘inability’ (or being unable) encompassed a range of scenarios, including practical obstacles for the

refugee claimant, such as being “unable to avail himself of protection if his application for a passport is refused” and that, by contrast, ‘unwillingness’ must be based on a well-founded fear of being persecuted, and not on reasons of personal convenience.

[117] This delineation is evident from the express wording of Article 1A(2) as outlined above at [75]. Unwillingness is qualified by “owing to such fear” whereas inability is not, namely: “is unable or, owing to such fear, is unwilling...”. The qualifier later in the definition, as set out below, clearly relates to the unwillingness to access state protection:

“... in the case of a person who has more than one nationality, the term 'the country of his nationality' shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.”

[118] It would be illogical for a person who is unable to avail himself or herself of protection to be compelled to do so. It is important to highlight here, too, that in cases of dual nationality, a country of nationality which is not itself a country of persecution may nevertheless be a country in which the applicant has a ‘valid reason based on well-founded fear’ for not availing him or herself of its protection: Jong Kim Koe; Korea GC [2011] at [62]–[67]; Fripp at p221. To interpret otherwise, could result in a refugee claimant being refouled to the state which is the locus of the well-founded fear of persecution.

[119] As can be seen from the above, the practical obstacles inherent in a refugee claimant’s inability to avail him or herself of protection – such as having a passport application refused – clearly overlap with identified attributes of ‘effective nationality’. The parallel between these two notions is highlighted in the Jong Kim Koe decision, where the Federal Court of Australia expressed the view that:

“Effective nationality for this purpose is of course something that must be asserted in the light of all the circumstances of a particular case. The inquiry will thus extend to a range of practical questions, parallel to those posed by the expression ‘unable’ in the first paragraph of Article 1A(2).”

[120] The practical questions which stem from the interpretation of an inability of a refugee claimant to avail themselves of protection, encompass considerations such as the need to ensure that the benefits of nationality, theoretically available, can in fact be accessed by the applicant (in other words, that there are no practical impediments to their doing so). Where such characteristics are lacking, the Tribunal may be satisfied that the refugee claimant is unable to avail themselves of state protection and that protection would be denied.

[121] It is also relevant here to recall the approach of the United Kingdom courts who have declined to rely upon the concept of effective nationality, finding its use superfluous to the ordinary meaning of the refugee definition. The Tribunal has cautioned elsewhere that “there is considerable danger in using concepts designed to elucidate the meaning of the Convention terms as substitutes for the Convention definition”; see DS (Iran) at [126] and [199]; Attorney General v Tamil X [2010] NZSC

107 at [39].

[122] Having regard to all the above, the Tribunal is of the view that the notion of

‘effective nationality’ be discontinued in favour of fairly and squarely approaching protection in terms of the refugee definition, namely, whether the refugee claimant is unable or unwilling to avail himself or herself of the protection of a country of nationality.

[123] The discontinuance of the concept of effective nationality to describe ‘the country of his [or her] nationality’ within the meaning of Article 1A(2) does not affect its continued utility as a concept for the purposes of qualifying other status in parallel to nationality where, for example, the Convention disqualifies, according to the operation of Article 1E, those who in their country of residence are considered by the competent authorities “as having the rights and obligations which are attached or the possession of the nationality of that country,” or the doctrine of protection elsewhere and other uses, such as the inclusion of the principle in the acquisition of nationality: see G S Goodwin-Gill, ‘The Rights of Refugees and Stateless Persons’ in K P Saksena (ed), Human Rights Perspective and Challenges (In 1990 and Beyond) (Lancers Books, 1994) at pp378 and 394; M Foster, H Lambert “Statelessness as a Human Rights Issue: A Concept Whose Time Has Come” (2016) 28(4) International Journal of Refugee Law 564..

Application to the Facts

[124] It is not in dispute that the mother is a dual citizen of Venezuela and Colombia. She was born in Venezuela to parents holding Venezuelan citizenship and holds a Venezuelan passport. In 2014, she applied for recognition as a Colombian citizen as the child of a Colombian citizen and she was issued a Colombian identity card in 2015. In correspondence dated 21 February 2019, the Consulate General of Colombia in Auckland advised the mother that it would be a simple process for her to obtain a Colombian passport at the Consulate, that she would need to visit the office with her Colombian identity card and that her passport would arrive within 10 working days. Accordingly, as the holder of more than one

nationality, the Tribunal must assess her predicament against each of the countries of which she is a national.

[125] The situation for the son is not so straight forward. He is a dual citizen of Venezuela and Spain and he holds passports for these countries. The question arises as to whether the son is also a Colombian national within the meaning of Article 1A(2) of the Refugee Convention. As will be seen from the assessment below, he is recognised as a Colombian national according to the applicable nationality law in Colombia. However, the question arises as to whether he could obtain recognition of his Colombian nationality as a mere formality including consideration of the fact that, in doing so he would involuntarily renounce either, or both, his Spanish and Venezuelan nationalities, as neither country permits citizens to hold more than two nationalities.

[126] When considering such nationality issues more fully below, the Tribunal is conscious of the fundamental objectives underpinning the Refugee Convention which have been explored above, and which include the surrogacy principle and the need to consider all the countries of which a refugee claimant is a national.

Is the son a national of Colombia?

[127] It is necessary to begin by setting out the applicable Colombian citizenship law.

[128] The 1991 Constitution and the subsequent Law 43 of 1993 (the Nationality Act) form the basis of the current citizenship regime in Colombia. Article 96 of the Constitution combines jus soli and jus sanguinis grounds for the acquisition of Colombian nationality at birth. Children born in the territory to Colombian parents, or to parents with proof of domicile, as well as those born abroad to Colombian parents, will be Colombians by birth. Thus, those born outside Colombia to at least one Colombian parent can register as a citizen by birth with a local consulate. The Constitution provides that Colombian nationality is not lost when a citizen acquires another or multiple nationalities; see also Dual Citizenship.com Dual Citizenship Colombia at www.dualcitizenship.com; C Escobar, European University Institute, Florence Robert Schuman Centre for Advanced Studies EUDO Citizenship Observatory Report on Citizenship Law: Colombia (May 2015); Immigration and Refugee Board of Canada Colombia: Requirements and procedures for a person born in another country to Colombian parents to acquire citizenship; requirements and procedures for the spouse and child of a citizen to obtain permanent residency; rights and social benefits available to permanent residents, COL104916.E (9 July

2014); Open Society Foundations Born in the Americas: the Promise and Practice of Nationality Laws in Brazil, Chile, and Colombia (March 2017) at p68.

[129] The Consulate General of Colombia in Auckland recently confirmed this legal position in correspondence, dated 21 February 2019, addressed to the mother. The Consulate General stated that there are no restrictions about the number of nationalities any Colombian citizen can acquire. Further, the son would be entitled

‘to acquire’ Colombian nationality on the basis of the mother’s citizenship. In order to obtain a Colombian Birth Certificate for the son, the mother would need to provide the following documents: an authentic copy of his Venezuelan birth certificate with apostille, a copy of his father’s passport, a copy of her own Colombian identity card, and a blood type test for the son. The Consulate advised that, once it had issued the son’s Colombian Birth Certificate, it could then issue his Colombian passport. Such practical steps to acquire a Colombian nationality and passport are well-documented in country sources: see Immigration and Refugee Board of Canada Colombia and Venezuela: Whether a Venezuelan national who was born to a Colombian parent has the right to Colombian nationality; requirements and procedures for a Venezuelan national to access Colombian nationality (2016-May

2018) ZZZ106114.E (23 May 2018) (“2018 IRB report”).

[130] Whilst the authorization of both parents is necessary for a minor to travel outside Venezuela and Colombia, a passport can be issued to a minor in the absence of a parent and there is no requirement for the consent of both parents of a minor applying for a Colombian birth certificate or passport: Immigration and Refugee Board of Canada Colombia: Whether a passport can be issued to a minor in the absence of either parent; documentation required for a minor to exit Colombia when not accompanied by one of the parents, COL100935.E (27 January 2006); Immigration and Refugee Board Colombia and Venezuela: Whether a Venezuelan national who was born to a Colombian parent has the right to Colombian nationality;)

2018 IRB report ; Consulate of Colombia in Ottawa I am a Colombian and the father or mother of my son is a foreigner, can I request a Colombian passport for the minor? (7 April 2019) at http://ottawa.consulado.gov.co. As such, the son’s mother could make this application on behalf of her son, without the need to confer with the son’s father.

[131] Notably, exit procedures from Venezuela and Colombia prescribe that minors under the age of 18, who are travelling alone, or with only one parent or a third party, must present a copy of notarized authorisation from the absent parent(s) or guardians. However, such restrictions do not apply to minor nationals entering

Colombia; see Immigration and Refugee Board of Canada Venezuela: information on the requirements and procedures to leave Venezuela by land, air, and sea, including whether a person who is targeted or wanted by the government or a colectivo is able to leave; information on the impact of currency inflation on the ability to leave the country (2015-August 2017), VEN105967.E (31 August 2017); Discover Colombia Colombia Entry/Exit Requirements at http://discovercolombia.com; The Colombian Ministry of Foreign Affairs Visas: Procedures and Services – General Requirements for Applications for Minors or Incapacitated Persons (7 April 2019) www.cancilleria.gov.co. With respect to Venezuela, a permission letter prepared in Venezuela is valid for 60 days; US Passport Service Guide Venezuela Entry Requirements (undated), www.us-passport-service-guide.com.

Formal process for recognition of nationality

[132] It follows from the applicable law and practice in Colombia that the son became a Colombian national at birth (notwithstanding the lack of any formal recognition of his nationality). No submission has been made that the son cannot provide the necessary documentation to the appropriate authorities in order to be formally recognised as a Colombian national. He has a birth certificate with an apostille, and his mother has a copy of her Colombian identity card. There is no apparent barrier to his obtaining a blood type test or a copy of the father’s passport and, indeed, a copy of the biodata page of the father’s passport was provided to the Tribunal.

Renunciation of other citizenships

[133] However, there is a further question of some complexity to consider. This concerns the prospective renunciation of the son’s nationality (whether Spanish or Venezuelan), as a consequence of his being recognised as having a third nationality. Should the son apply for recognition of his Colombian nationality, he would involuntarily renounce one or both of his other nationalities in the process. While Colombia permits multiple nationalities, Spain and Venezuela do not: www.dualcitizenship.com. There are formal processes for the renunciation of Spanish and Venezuelan nationality or, in the alternative, they may be involuntarily renounced when an additional nationality is acquired or recognised: European Union Agency for Fundamental Rights Renouncing Citizenship at www.fra.europa.eu; Dual and Multiple Citizenship at www.multiplecitizenship.com; Velasco Lawyers Acquiring and Losing Spanish Nationality (16 July 2010) at www.velascolawyers.com.

[134] While involuntary renunciation of a nationality may be a relatively straightforward and smooth process, fundamental human rights are engaged by the renunciation of a nationality and, in particular here, by the act of a parent potentially renouncing the nationality of a child. Notably, Article 8 of the 1989 Convention on the Rights of the Child (“CRC”) protects the right of children to preserve their identity, including nationality, name and family relations as recognised by law without unlawful interference. Further, a ‘best interests’ assessment for a child requires decision-makers to consider the long-term effects that a decision or action may have on a child’s welfare and development, including “those effects that may be felt after a child has reached her eighteenth birthday”: G Goodwin-Gill “Expert roundtable discussion on ‘The United Nations Convention on the Rights of the Child and its Application to Child Refugee Status Determination and Asylum Processes’ – Introduction” (2012) 26 Journal of Immigration, Asylum and Nationality Law 226 at p227; R (on the application of AA) v The Upper Tribunal [2012] EWHC 1784 (Admin) at [44], cited in J Pobjoy The Child in International Refugee Law (Cambridge University Press, 2017) at p226.

[135] The Tribunal can well foresee cases where renunciation of a nationality may be a formal and potentially protracted process, fraught with hurdles and delays. In such cases, there would be no expectation that a refugee claimant take steps to renounce their nationality in order to gain another and for that nationality thus to be identified as a country of reference within the meaning of Article 1A(2). Obvious protection gaps would arise and the risk of refoulement would be ever-present. As outlined above, the Tribunal has declined to follow the approach in Canada, for example, in Williams, which requires refugee claimants to take steps to secure alternative citizenship which is in their control (and which may concern the renunciation of another nationality): AN (Russia) [2018] NZIPT 801132 at [82].

[136] Professors Hathaway and Foster express the view that there is no basis in law for the proposition that an individual must give up their citizenship in order to receive protection under the Convention: Hathaway and Foster (2014) at p61). The Tribunal is in agreement.

[137] As such, the Tribunal finds that it would not be a mere formality for the son to apply to have his Colombian nationality recognised because of the result that this would involuntarily result in the renunciation of one or both his Spanish or Venezuelan citizenships, something that he should not be required to do.

Parental consent

[138] The Tribunal must also address the submission made by the son’s mother (as his responsible adult in these proceedings), and by his father in evidence, that the father will not consent to the son applying to the Colombian authorities for recognition of his Colombian nationality, to his renouncing his Spanish nationality, or to his travelling to Colombia owing to fears for his safety.

[139] Fundamentally, this lack of parental consent is not a question of nationality, but rather an expression as a parent on behalf of his son that he is ‘unwilling to avail himself of the protection of the country of his nationality’. Because unwillingness is linked to ‘owing to such fear’ within the refugee definition, it not optional for the refugee claimant to opt, through personal choice, not to avail themselves of the protection of their country of nationality.

[140] It is a well-established principle that refugee claimants must first take all steps to secure protection from their country of nationality: Refugee Appeal Nos 72558 &

72559 (19 November 2002) at [90]-[107]; MA (Ethiopia) at 10. The Refugee Convention was intended to apply to bona fide individuals who are unable or unwilling to avail themselves of the protection of the country of their nationality, and a person does not become a refugee as a matter of choice or stratagem: Refugee Appeal No 2254/94 (21 September 1994) at p51. The inclusion of a country of nationality as a reference state does not depend on the feelings of the individual: Fripp at 192.

[141] This same principle applies to refugee claimants who are minors, as represented through their parent as their responsible adult: sections 375-376 of the Act. It follows that the lack of consent of the mother in this case, as the responsible adult, or the son’s father, for the son to access an available nationality is irrelevant to the assessment. While it may be argued that a protection gap could arise owing to a parent’s action or inaction on behalf of their child, the fundamental principle of acting bona fide is extant. Although the wording of the refugee definition envisages refugee’ claimants precluding resort to state protection, by either being unable or unwilling to avail themselves of the protection of their country of nationality(s), their claim falls for objective assessment through the interpretation of the refugee definition.

[142] With respect to the son, it remains now for the Tribunal to consider whether there is any substance to the claim that he is unable to avail himself of the protection of Spain or Venezuela.

Objectively, on the facts as found, is the son unable to avail himself of the protection of Spain?

[143] The son, aged nine years, is a citizen of Spain. His father is also a Spanish national. However, he lives in Venezuela, has no intention of travelling to Spain; and the son, like the father’s three other children, has never lived in his primary care. The son’s mother is a dual national of Venezuela and Colombia. The central issue here is the ability of the son as a young minor to travel to live in Spain where he has never visited or lived, without his parents or any other family support.

[144] As outlined earlier, protection is denied where a refugee claimant is unable to avail themselves of the protection of their country of nationality. Being unable within the meaning of the refugee definition, whilst a high threshold, extends to a range of practical scenarios, which must be considered in the context of a minor. A child’s particular vulnerabilities and protection needs are at the forefront of this assessment. Their age, level of maturity, physical and psychological vulnerability and needs must be taken into account: United Nations Committee on the Rights of the Child General Comment No 6 – Treatment of Unaccompanied and Separated Children Outside Their Country of Origin (2005) at [20]; Pobjoy at p227.

[145] Pertinently, Article 3(2) of the CRC reiterates the primacy of the parents in the protection and care of their children. As explained by S Arnold in Children’s Rights and Refugee Law: Conceptualising Children within the Refugee Convention (Routledge, 2017) at p97: (emphasis added)

“In the case of children, the parents or responsible adults may be viewed as the first benefactor of individual rights under international law. This includes those rights attributed specifically to children. This is because adults are often viewed as the first party with responsibility in realising children’s rights, regardless of whether or not rights are aimed at the protection or promotion of the interests of the child or if the rights are in fact the child’s right in their own right...”

[146] A prominent practical issue here is the son’s safe access to Spain. The possibility presents that he will travel there alone. There is also the possibility that his mother may travel to Spain with him. According to Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“the Free Movement Directive”) which entered into force in 2004, it would appear that the mother would qualify for residence in Spain, as family of an EU citizen, and be permitted to move and reside freely within the EU.

[147] However, the right to enter and remain in the EU in such circumstances is conditional and helpfully depicted in AH (Hungary) [2018] NZIPT 801172-74 at [112]:

“Nevertheless, the Free Movement Directive does not grant absolute freedom of movement to all EU citizens. After a three months’ stay, only workers are entitled to an automatic right of further stay. Economically inactive EU citizens are subject to conditions of sufficient resources and health insurance if they are to remain further and they do not receive the same treatment as nationals of the host member state, especially in respect of the granting of social assistance. Economic EU citizens are in this regard discriminated against: see Solange Maslowski ‘The Expulsion of European Union Citizens from the Host Member State: Legal Grounds and Practice’ (2015) 4(2) Central and Eastern European Migration Review 61. Maslowski notes at p63:

‘EU citizens are free to move and stay in the territory of other member states as long as they receive those EU entry and residence conditions. While there are almost no requirements for a stay not exceeding three months, a longer stay requires additional conditions to be fulfilled (comprehensive insurance, sufficient resources, administrative requirements, period of residence), which vary according to the citizen’s status (temporary or permanent resident). Restrictions, ranging from a mere fine to an expulsion order can be imposed by member states when these conditions are not fulfilled. Since expulsion is such an exceptional and serious measure, only a serious breach of the conditions of entry and stay, such as the person representing an unreasonable burden on the social security system of the host member state can lead to it.’”

[148] Given the contingent nature of the mother’s right to enter and remain in the EU for more than three months, the Tribunal is not satisfied that she would be able to remain there with her son.

[149] The prospect of the son travelling alone, as a young vulnerable child, prior to receiving any form of custodial or social assistance in Spain, raises serious safety and protection issues. Relevantly, the Preamble to the Convention on the Rights of the Child conveys how children require special care and assistance and that “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”.

[150] Arnold underscores the potentially hazardous reality of travel for unaccompanied children in her text, in which she advocates for the need for a cross- treaty interpretive approach between the Refugee Convention and the CRC. At pp94-95 she states (emphasis added):

“[R]efugees are persons who: (1) are outside of their country of origin, (2) cannot or are unwilling to seek the protection of their country or place of residence and (3) have a well-founded fear of persecution with a link to one of the five convention grounds. A child, in order to qualify as a refugee would need to satisfy these criteria as well. In respect of point (1), it is assumed that children are mobile either in the company of their families or able to travel on their own. Point (2) assumes that children have legal agency, with rights in their own right. Point (3) assumes that children can exercise their agency and act autonomously and are thus able to substantiate a claim of a well-founded fear relating to one or more of the five grounds: race, nationality, religion, membership of a particular social group or political opinion.

The reality is that children are often unable to travel without the assistance of adults. That does not necessarily mean that they cannot meet the criteria in point (1), but that there is an added barrier to accessing asylum. Additionally, and in relation to point (2), children are often not consistently considered as rights holders around the

globe. Lastly, and in relation to point (3), children are persons in a developmental

state in their lives where their ability to reason is evolving.”

[151] There are obvious parallels in the assessment of the notions of surrogate protection and internal protection within the meaning of the refugee definition. Similar questions as to safe, legal and practical access to protection arise for consideration in the assessment of a claimed inability to avail oneself of protection, as in the assessment of a viable internal protection alternative (“IPA”). The emphasis in both inquiries is on the practical realities which claimants face. Relevantly, too, in the assessment of an IPA, there is the risk of indirect refoulement, where conditions in the proposed site of relocation may force the refugee claimant back to their region of origin. The Tribunal has, on repeated occasions, acknowledged the real risk that individuals, who may be able to relocate within their country safely, legally and practically, may nevertheless, through such level of insecurity or lack of family and support structures, be forced to return to the site where they are at risk of serious harm: AD (Lebanon) [2017] NZIPT 801227 at [80]; AZ (Iraq) [2018] NZIPT 801244-245 at [118].

[152] In parallel here, having found that the son holds a well-founded fear of being persecuted in Venezuela (the reasons for which are set out below), the reality is that the son will be unable to access the protection of Spain by travelling there and entering its jurisdiction alone. The son is a nine-year-old minor who suffers from PTSD and other medical problems for which he requires medicine. He belongs to a family who have endured sustained harassment and abuse at the hands of a criminal group in Venezuela. He was kidnapped by armed colectivos alongside his mother on one occasion and, upon arrival in New Zealand, has required counselling owing to the adverse psychological effects of such experiences. The counsellor who provided this treatment reports that the son suffers from PTSD. He continues to experience panic attacks and separation anxiety when his mother is absent.

[153] The son is fully dependent on his mother as his primary caregiver and is far from an age of maturity and reason to avail himself of his Spanish nationality and be able to attend to the practicalities of life. There can be no certainty as to how the authorities in Spain will care for a minor who arrives without his parents or any support person. Given the limitations of a nine-year-old’s comprehension and communication skills, in particular, given his PTSD and the fact of travelling to a foreign land, a real risk exists that the son could be directly or indirectly refouled to Venezuela, where his father, as one of his parents, currently resides.

[154] There are previous decisions of the Tribunal which concern the issue of the return of minors to their country of nationality, which frame the inquiry in terms of whether the minor in question, who would be returning without parental support to their country of nationality would face a well-founded fear of being persecuted there. In the case of AT (Pakistan) [2013] NZIPT 800409-411, the Tribunal found that the minor appellant could return to Pakistan alone without her parents, who had been recognised as refugees and be cared for there by other family members in Pakistan. At paragraph [74] the Tribunal stated:

“Similarly, if the daughter returns to Pakistan alone (because her parents remain in New Zealand as recognised refugees), that will undoubtedly cause her hardship in the form of separation from her parents, but it is not established before the Tribunal that it amounts to serious harm. Her parents are in contact with family in Pakistan and could be expected to make detailed and secure arrangements for the daughter to be met on arrival and cared for. The family has the financial means to take care of another child and could provide her a loving and supportive home environment.”

[155] Here, the Tribunal concludes that the minor son is, through clear vulnerability (concerning his age, psychological health and lack of any parental or family support), unable to practically and safely access the protection of Spain. Further, owing to such vulnerabilities, there is a real risk of refoulement.

Objectively, on the facts as found, is there a real chance of the mother and son being persecuted if returned to Venezuela and of the mother being persecuted if returned to Colombia?

[156] It is necessary first to consider the relevant country information.

Venezuela

[157] The deteriorating political, economic and humanitarian climate in Venezuela was considered by the Tribunal a year ago in AB (Venezuela) [2018] NZIPT 801261, with a particular focus on measures taken by the government to repress political opposition, social protest and criticism of the regime. A myriad of human rights abuses committed by the government and its agents was also outlined: at [58]–[84].

[158] Since that time, human rights and humanitarian conditions have continued to deteriorate in Venezuela at alarming speed. Such conditions have led to an unprecedented exodus from Venezuela, with several thousand persons leaving the country on a daily basis. Over three million Venezuelans have left the country over the last few years, constituting about 10 per cent of the country’s total population: M Goldeberg “Venezuela is a Refugee Crisis” UN Dispatch (12 February 2019) at www.undispatch.com; A Selle, J Bolter, B Muñoz-Pogossian, M Hazán, “Creativity

Amid Crisis – Legal Pathways for Venezuelan Migrants in Latin America”

Organisation of American States, Migration Policy Institute (January 2019).

[159] A contest over leadership between President Maduro and opposition politician Juan Guaidó has been ongoing since May 2018, when President Maduro won presidential elections amidst widespread allegations that the polls had not met international standards of electoral freedom and fairness: Human Rights Watch World Report Venezuela: Events of 2018 (2019). On 23 January 2019, opposition politician Juan Guaidó, who is also chairman of the National Assembly (an institution which was elected in Venezuela’s last free and fair elections in 2015), announced amid a mass opposition demonstration in Caracas, that he was assuming the presidency of the Republic in defiance of President Maduro, who had been sworn in for a second term only two weeks earlier: International Crisis Group In Venezuela, a High-Stakes Gambit (24 January 2019).

[160] Over time, this power struggle has repeatedly manifested itself in violence which, in addition to the government’s crackdown on dissent, has included President Maduro’s obstruction of Guaidó’s call for humanitarian aid to the country, with trucks carrying supplies being blocked by the President’s agents at the borders with Colombia and Brazil. Police, military and colectivos have used excessive force and have opened fire on unarmed civilians attempting to bring humanitarian aid into the country through the borders: E Melimopoulos “Venezuela, the Military, and its support: An explainer” Al Jazeera (23 February 2019); “Venezuela Crisis: Colombia border points closed amid aid stand-off” BBC (23 February 2019). L Smith-Spark, J Valery, and C D and C Maxouris “Venezuela’s Maduro Breaks Relations with Colombia” CNN (24 February 2019); Venezuela Investigative Unit “The Armed Groups Propping Up Venezuela’s Government” InSight Crime (1 March 2019) (“the InSight Crime March 2019 article”).

[161] Of particular relevance to this appeal is the modus operandi of Tupamaros who are a colectivo. They have been described as “the most ardent defenders of Venezuela’s Bolivarian Revolution”; Venezuela Investigative Unit “7 Reasons for Describing Venezuela as a ‘Mafia State’” InSight Crime (16 May 2018).

[162] Venezuelan colectivos, such as Tupamaro, were established in the 1980s as groups which “spread across communities as social organisations supporting the implementation of official aid programmes during the Chavez era”: G Olmo “Venezuela Crisis: The ‘Colectivo’ Groups Supporting Maduro” BBC News (6 February 2019). However, under President Maduro, they developed into ‘urban guerrilla groups’ and have since forged formal links to the government: K Gurney,

“Venezuela’s Leftist Collectives: Criminals or Revolutionaries?” InSight Crime (24 November 2014); R Bhalla “Seeking Venezuela’s Future in Barrio 23 de Enero” Forbes (15 December 2015) (“the Forbes article”).

[163] According to the InSight Crime March 2019 article, the colectivos are government-funded, armed groups comprised of civilians and members of state security forces and other government institutions. Although originally created to defend the government of former President Chavez, they have evolved to engage in political repression and criminal activities, including having a strong presence at the border with Colombia. The article states:

“Colectivos have played a major role in this year’s newest bout of political tension. The groups rallied around Maduro as soon as he took office for his disputed second term. Now, they have begun to expand their presence to the country’s borders and give even stronger demonstrations of their support than before.

As InSight Crime reported, government officials in Táchira state on the border with Colombia created a ‘border security colectivo’ in 2018. And this one includes members of the ELN and the FARC dissidence....”

[164] According to the InSight Crime March 2019 article at page 5:

“To stymie anti-Maduro sentiment, they now operate more like paramilitary shock troops of armed civilians and receive support from security forces. They participated in the government’s repression of the protests in 2014 and 2017 as well as in a government initiative called “Operation Liberation and Protection of the People”...which has been tied to human rights abuses and criminal acts.”

[165] The involvement of colectivos in state-sanctioned repression of the political opposition is well-known: “Los 5 Colectivos Chavistas Más Temidos por la Población Civil de Venezuela” (The 5 Chavez Collectives Most Feared by Venezuela’s Civilian Population) infobae (29 April 2017); the Forbes article. It is also commonly reported that they are responsible for the commission of serious crimes such as trafficking, extortion, and murder; Insight Crime May 2018 report; Insight Crime November 2014 report; L Ravekes “Collective Corruption: The Breakdown of Civil Society in Venezuela” Global Americans (14 December 2018).

[166] The InSight Crime March 2019 article also states that:

“[B]eyond their political oppression activities, the colectivos have gotten a foothold in Venezuela’s underworld, engaging in such criminal activities as extortion, kidnapping, drug trafficking and murder for hire.”

[167] The colectivos enjoy government support and there appears to be complete impunity for the abuses they commit: “Venezuela: A Mafia State? – Venezuela has become a hub of organised crime in the region” InSight Crime (“Insight Crime’s full

investigative report”). In its full investigative report (at p6), InSight Crime describes the fundamental lack of accountability for colectivos as follows:

“[T]hey have historically enjoyed government blessing and therefore a degree of legitimacy, but are ultimately accountable to no one. They ‘police’ their areas of influence and some even offer a parallel justice system. While they were initially funded by the Venezuela government, they have increasingly turned to criminal activities to finance themselves, principally the microtrafficking of drugs, as well as extortion. The government of President Nicolás Maduro has used the colectivos to exert social control in their areas of influence and to break up opposition protests.”

[168] In the same report InSight Crime lists the major geographical area of influence of the colectivos as Caracas. However, they are described as having national reach, and the article records their presence in at least 16 of 23 states: Insight Crime’s full investigative report at p32, Immigration and Refugee Board of Canada Venezuela: Pro-government groups (also known as colectivos), including the Tupamaros; information on their areas of operation, objectives, activities, and relationship with the government, including instances of collusion; whether these groups operate under a unified command and the nature of cooperation among the different cells throughout the country (2015-May 2017) VEN105785.E (17 May

2017).

[169] Recent reports convey the expansion of colectivo networks of informants, their territorial scope and shifting criminal dynamics. According to A Berwick “Inside a Raid in Maduro’s Crackdown on Critics in Venezuela Slums” Reuters (4 February

2019), ahead of the 23 January 2019 protests, they continued to expand their networks of informants and alerted police to “suspicious activity”, sending them images and addresses of suspected “right-wing conspirators”, which led to raids. Having expanded their presence to the country’s borders, members have also been recruited by criminal groups as part of what is described as “one of the most important organized crime hubs in Latin America”: “Fresh Armed Groups Exploit Colombia’s Violent Border with Venezuela” War is Boring (1 February 2018).

[170] Notably, the Tupamaros and other pro-Chavez militias have historic links to the Revolutionary Armed Forces of Colombia (“FARC”) and have received training in guerrilla warfare in areas under FARC control on the Venezuela-Colombia border: H Stone “FARC Computers Shine Spotlight on Chavez Militias” InSight Crime (12 May 2011); “Venezuelan Paramilitaries Wreak Havoc with Cuban, FARC Support” PanAm Post (1 July 2015).

[171] Alberto Caríias, the Tupamaro leader, ABC News that his group are political allies of Colombia’s FARC guerrillas: A Benedetti “Venezuela: Radical Group Promises Violence if Chávez Loses Election” ABC News (6 October 2012). Since

FARC demobilised under the peace agreement with the Colombian government, reports have emerged that FARC have been recruiting colectivos fleeing Venezuela: Venezuela Investigative Unit “Shifting Criminal Dynamics Signal Violent Future for Colombia-Venezuela Border” InSight Crime (29 January 2018).

[172] Open Democracy report, in Venezuela’s Administration and Organized Crime: A Partnership? (19 January 2018) at www.opendemocracy.net, that following the demobilisation of FARC, trafficking routes are now under the control of several new criminal groups. The Popular Liberation Army (“EPL”) established a presence in Venezuela in 2018. The Rastrojos, a powerful Columbian criminal group, have also emerged in Venezuela and have started recruiting Venezuelan nationals. The ongoing instability and corruption in the Venezuelan security forces provides fertile ground for Colombian organized crime. The role of Venezuelans in trafficking drugs through the Caribbean has also grown. The National Liberation Army (“ELN”), too, has taken over territory previously occupied by FARC and grown in strength on both sides of Colombian-Venezuelan border: M Teff and D Panayotatos, “Crises Colliding: The Mass Influx of Venezuelans Into the Dangerous Fragility of Post- Peace Agreement Colombia” (January 2019) Refugees International (“Refugees International report”) at p17.

Colombia

[173] Political and economic crises in Venezuela have led to a mass influx of Venezuelans into Colombia over the past decade and a half: Open Society Foundations: Open Society Justice Initiative Born in the Americas – The Promise and Practice of Nationality Laws in Brazil, Chile and Colombia (March 2017) at 64. According to D Carvajal in, As Colombia Emerges from Decades of War, Migration Challenges Mount Organisation of American States, Migration Policy Institute (13 April 2017):

Although Colombians have been migrating to Venezuela since the 1970s, this pattern began to reverse in 2004. The first wave of Venezuelan immigrants was comprised of oil industry professionals who migrated in the aftermath of mass layoffs from the state-run oil company, Petoleos de Venezuela (PDVSA). A second wave, starting in 2010, included Venezuelan executives and investors seeking to protect their assets from rising inflation, currency devaluation, and state nationalization policies. A third wave of professionals and students arrived following widespread anti-government protests in 2014.

[174] Venezuelans flowing across the border are a diverse group. Whilst early waves largely brought higher-income, highly educated individuals, those arriving more recently are more vulnerable and in greater need of services: Refugees International report, p10. Venezuelans also have diversity in their historical roots

and ethnicity. According to “The Challenge of Venezuelan Migration” CE Noticias

Financieras (6 February 2018):

“The Venezuelan people were for decades the recipient of the European migrations after the Second World War, the Latin American and Caribbean migrations that escaped from the dictatorships, and the Colombian migration, which is divided between economic migration, in the 70s and 80s, and the victims of the armed conflict, who fled seeking refuge in the 1990s and 2000s.

Venezuelans are not just Venezuelans, they are Venezuelan-Italian, Venezuelan- Spanish, Venezuelan-Portuguese, but above all a significant number of them are Colombian-Venezuelan, among others, which makes their identification difficult: many have had to resort to their other nationalities before the obstacles to international mobility...”

[175] According to the Refugees International report, owing to the Venezuelan crisis, over a million Venezuelans have been received by Colombia. Further, tens of thousands cross the border into Colombia every day. Most of whom are “pendular migrants” who arrive to access basic goods and services and then return home; Refugees International report at p9. Similarly, M Zuniga of National Geographic reports in “For Venezuelan Refugees, This Bridge Connects Past and Present” (June 2018), an estimated 35,000 Venezuelan refugees walk across the Simón Bolivar bridge into Cúcuta, Colombia, each day.

[176] The Colombian Government has welcomed Venezuelans and has been responsive to their needs. It has implemented border and regularization policies, whilst acknowledging the long-term nature of the situation and the resulting need to invest in development for its own population and Venezuelans. It has played a leading role in calling for a regional agreement on a more harmonized approach to the crisis, including pioneering the Quito Process of commitment by states for a more coordinated response: Refugees International report at p7; Open Society Foundations: Open Society Initiative Born in the Americas – the Promise and Practice of Nationality Laws in Brazil, Chile, and Colombia (March 2017).

[177] The government has made clear pronouncements that all Venezuelans will have access to emergency medical care and be able to participate in the social security system. Children will continue to be enrolled at public schools, and adults will have assistance to find employment through the same job centres used by Colombians: “Colombia Gives 440,000 Venezuelan Migrants Permission to Stay” Reuters News (3 August 2018).

[178] However, escalating numbers of Venezuelans arriving in the country in need of support has heightened competition for resources, such as access to shelter, schools, and employment. According to the Refugees International report, the lack

of shelter is an “enormous problem” in border towns. This has resulted in many Venezuelans sleeping in the streets, parks and public places. Venezuelans are also reported to rent spaces in parking lots for their families to sleep: Refugees International report at p17. J Parkin Daniels also reports in “A Strained Welcome Awaits Venezuelans in Colombia” Devex (28 November 2018), on challenges to find accommodation in the larger cities, explaining that:

“In a grassland lot overlooking one of Bogotás sewage-strewn canals, nearly 300

Venezuelan refugees and migrants have set up a makeshift camp. Tents, some built ad hoc with scrap and tarpaulin, sprawl the plot of land just a block from the Colombian capital’s main bus terminal. Many of the structures house families with infant children.

This is the face of a crisis that has been escalating over the past two years. Unable to cope with economic turmoil and soaring crime at home, millions of Venezuelans are electing to up sticks for neighbouring Colombia, or further afield in South America.”

[179] Although primary education is available to all children in Colombia, regardless of legal status, in practice, space and resource shortages prevent schools from accommodating extra pupils: the Refugees International report at p13. Many schools in the border zone have received hundreds of students without adding new teachers: D Baddour “Colombia’s Radical Plan to Welcome Millions of Venezuelan Migrants” The Atlantic (30 January 2019).

[180] Finding employment is fraught with challenges. Interviewees told Refugees International that Colombian employers refused to hire them out of concern that it would lead to problems with the authorities: Refugees International report at p12. A World Bank study conveys that 93 per cent of Venezuelans who do find work do so in the informal sector, and labour exploitation is rife: “Migración desde Venezuela a Colombia: impactos y estrategia de respuesta en el corto y mediano plazo” (2 November 2018). The Colombian government has taken steps to address issue by requiring employers to register foreign workers whom they hire, but the problem is ongoing: Refugees International report.

[181] Access to medical care and services is also a fundamental problem. Hospitals and clinics across the country are overcrowded: D Baddour “Colombia’s Radical Plan to Welcome Millions of Venezuelan Migrants” The Atlantic (30 January

2019).

[182] Competition for resources is mounting and local authorities have raised concerns about the numbers seeking access to basic services. Some of the most pressing challenges include reallocating limited resources to accommodate the needs of migrants, returnees, and the local population: D Carvajal “As Colombia

Emerges From Decades of War Migration Challenges Mount” Organisation of American States, Migration Policy Institute (13 April 2017). Competition for resources is further heightened by internally displaced persons, constituting some

7.7 million, who are living in comparable situations to newly-arrived Venezuelans.

[183] Heightened competition for employment and social services is beginning to fuel xenophobia. The Refugees International reports at page 10 that:

“[A] Venezuelan man living in Cúcuta told RI that some employers turned job seekers away as soon as they heard their Venezuelan accents. One humanitarian agency told RI, ‘We’re at risk of creating a war between poor peoples here; poor Colombians will start to resent seeing the country’s limited social services being diverted away from them to support Venezuelans.”

[184] Even Colombian-Venezuelans are not identified as Colombians in the country and are being segregated and treated with disdain. As explained in “The Challenge of Venezuelan Migration” CE Noticias Financieras (6 February 2018):

“Colombian-Venezuelans are not identified as Colombians by many of their compatriots, they speak Venezuelan, they have Venezuelan habits and customs and they like baseball. Many have returned claiming their nationality and that of their family. But they encounter a society that does not recognize them as Colombians and that even segregates them. A country that in the past expelled them now receives them with disdain and pettiness.”

[185] As stated in “Colombians Returning from Venezuela Seen as Foreigners in

Their Own Country” Al Diá (7 February 2017).

“The idea that returning Colombian-Venezuelans cause all the social problems is not just a prejudice of the man in the street – a comment by Colombian Vice President German Vargas Lieras has parked new arguments with the country next door.

‘In the city of Barranquilla alone I see 20,000 people who have come back from Venezuela and are harming security and taking away the locals’ chances of getting a job,’ he said several days ago.

At another event, the delivering of homes in Tibu, Norte de Santander province, he

said the dwellings are for ‘displaced persons’, and told people,’ ‘don’t let those

‘Venecos’ settle here, not for any reason in the world’, a remark slammed by the

Venezuelan government.

...

What also arouses antagonism toward those returning from Venezuela is that as workers they are seen as ‘bargains’, which means they’re willing to work for less money and so take jobs away from the locals.

They’ll work for as little as 20,000 pesos (some $7) a day...they’re sinking the pay scale so there’s no longer any such thing as a fair wage’, Alfredo Flores, a waiter at a downtown café, told EFE, while complaining about the ‘unfair competition of those

‘Venecos’.”

[186] Parkin Daniels reports in “A Strained Welcome Awaits Venezuelans in

Colombia” Devex (29 November 2018) that tackling nascent xenophobia toward the

growing Venezuelan population is proving a challenge, and instances of mob violence have been sporadically documented. He states:

“Despite the largely generous reception from Colombians in Bogotá and beyond, tacking nascent xenophobia toward the growing Venezuelan population has proven a challenge, and instances of mob violence against Venezuelans are sporadically documented.”

[187] Parkin Daniels further explains that a perception among host communities persists that Venezuelans are depriving them of the informal day work, often in housework or construction they rely on.

[188] Further challenges present to Venezuelans, particularly those living in border areas that are dominated by armed groups. According to Refugees International, for Venezuelans arriving in areas dominated by armed groups, the lines between at-risk populations have blurred and humanitarian consequences are exacerbated for all.

[189] The situation in border towns is particularly precarious. In the article, by A Moloney, “Rising Tensions as Colombia’s Displaced and Venezuelan Migrants Converge” Reuters (30 January 2019), it is reported that displaced Colombians are seeking safety and shelter with more than one million Venezuelans who have fled their homeland. In the Colombian border city of Cúcuta and northeast Catatumbo region, Colombia’s internal displaced persons and Venezuelan migrants and refugees can be seen begging for food alongside each other at traffic lights. Colombian schools and hospitals are struggling to cope with the risking demand from IDPs and Venezuelan migrants, including Colombia’s Guajira region, which borders Venezuela, and Cúcuta. The article reports that, according to Christian Visnes, NRC’s Colombia country director:

“Clearly the flow is overwhelming. The flow of Venezuelans and Colombians who have lived in Venezuela, paired with more armed conflict, are completely overwhelming the services of the region...[a]nd the combination of the two is quite dangerous because it clearly can lead to xenophobia and racism.”

[190] Action Against Hunger report in 25,000 Colombians Cross the Colombian

Border Everyday (8 February 2019) at www.mynewsdesk.com, that:

“The flow of Venezuelans at the northeastern Colombian border city of Cúcuta is constant.

‘People come to buy food, medicines, hygiene items and basic goods, or to sell jewelry and other small technological goods – many women are even selling their hair’ says Luis Ferando Ramirez, project coordinator for Action Against Hunger in the department of Norte de Santander.

Although many people return in the day, the permanent arrival of an estimated

90,000 people every month puts a constant pressure on the area. There are currently more than one million Venezuelans in Colombia.

‘We are also talking about an area where armed groups continue to operate, so it is a doubly affected area’, Ramirez adds.

‘Many people enter the country through the city of Cúcuta in order to reach

Rumichaca and then their final destination is Peru,’ explains Ramirez....”

[191] Larger cities, such as Bogotá, are described as affording the best promise of work. According to UN data, 23 per cent of Venezuelans live in Bogotá. However, the situation for Venezuelans there is described as “incredibly difficult; there’s too many people arriving, and too many people asking for things”: Parkin Daniels (cited above). According to Refugee International, some of the worst abuses and exploitation also take place in cities: Refugees International report at p17.

Application to the Facts

Venezuela

[192] The mother fears colectivos who are closely associated with the government, and who have featured as key actors in the repression of political and social dissent.

[193] The mother was targeted and pursued by colectivos whilst living in Venezuela from early 2014 until her departure in late 2016, who subjected her to a campaign of harassment and extortion, including threats and an express kidnapping. Her son was also kidnapped with her. One of her brothers, her former partner, and her mother were also targeted in similar terms by colectivos. Her mother was threatened as recently as 2017 when she returned to Caracas. The mother’s identity is well-known amongst this group and there is a real chance that, should she return to Caracas or anywhere in Venezuela, the group will locate her and subject her to serious harm. The capacity and reach of the colectivos is well-documented in country sources, and the mother’s profile with the group, as an opponent of the government is exacerbated by her membership on the Tascón List, which is linked to the records of government and associated government agents.

[194] Notably, the Tascón List, comprising more than 2.4 million names, has been used historically as “an instrument of political persecution” whereby former President Chavez dismissed thousands of state workers who had signed a petition to revoke his Presidency. Those on this list were identified as opponents and denied any possibility of accessing social policy: “The Challenge of Venezuelan Migration” CE Noticias Financieras (6 February 2018). This list, while somewhat vintage, is

still used today as a means to investigate a persons’ commitment to the government, albeit to a narrower degree than in the past: A Meza “Maduro purges public servants who supported recall referendum” El Pais (24 August 2016); E Chinea and D Kai “Venezuela president orders public worker sackings over referendum call” Reuters (23 August 2016).

[195] Through association with his mother, the son, will also be at risk of serious harm at the hands of the colectivos. The Tribunal finds that there is a real chance that the mother and son will be subjected to cruel, inhuman or degrading treatment or punishment in violation of Article 7 of the ICCPR.

Colombia

[196] The mother has never lived in Colombia, and would be faced with finding employment, accommodation, and access to services, in the context of a mass influx of other Venezuelans into Colombia. As the capital city, Bogotá would likely present the best opportunity for her to find employment. However, there are practical obstacles to her finding employment there given her lack of certified education and employment records. Country sources also reveal the discrimination against Venezuelans in access to employment owing to the perception that they are taking resources from the local populace. Those Venezuelans who are finding employment are doing so in menial, low paid, work, and are reportedly being exploited.

[197] Against these conditions, it is foreseeable that the mother would choose to live where she has some family relatives, in Cúcuta, where her father, his partner and two daughters are living presently. However, their living conditions are precarious, and they have no fixed abode, employment, or support networks. They were crossing the border daily from a border town in Venezuela to obtain food and supplies, and for one of the daughters to attend school, finding it easier to find affordable accommodation in Venezuela. However, with the border closure, they have been forced to remain in Cúcuta.

[198] The conditions in Cúcuta, as a border town with Venezuela, are particularly concerning. Country sources reveal a steady flow of persons into the town, and a rapidly depleting supply of resources to meet their needs. Organised criminal groups, including colectivos from Venezuela, have infiltrated border regions and towns, including Cúcuta, and have exposed the populace to exploitation and abuse. Their presence presents a particular risk to the mother who has a profile as an opponent, and as someone who has refused to comply with their extortion demands.

Reports on such criminal groups pursuing those who fail to conform to their demands is illustrated by a news report, “Fresh Armed Groups Exploit Colombia’s Violent Border with Venezuela” War is Boring (1 February 2018) p7, which records the murder of two Venezuelans in the Colombian border town of Cúcuta just one month after they arrived for allegedly not paying extortion fees to the criminal group operating there.

[199] In conflict settings, women and children are particularly vulnerable. The conflict in Venezuela and spill-over effects into Colombia are unlikely to be resolved for some time. It is predicted that conditions will continue to worsen. As reported by A Selle, J Bolter, B Muñoz-Pogossian, M Hazan, “Creativity Amid Crisis – Legal Pathways for Venezuelan Migrants in Latin America” Organisation of American States, Migration Policy Institute (January 2019), more than three million Venezuelans are living outside their country and most left in the past three years. They report that there is “no end in sight” to the economic and political crisis that has spurred this movement, and record projections that as many as 5.4 million Venezuelans may be living abroad by the end of 2019.

[200] The Tribunal is satisfied that the mother is at risk of serious harm in the form of cruel, inhuman and degrading treatment or punishment, in violation of Article 7 of the ICCPR.

Is there a Convention reason for the persecution?

[201] The Tribunal is satisfied that a contributing reason to the mother’s predicament is her imputed political opinion, as a perceived opponent of the Venezuelan Government and its agents. The son is at risk by reason of his membership of a particular social group, namely, his family.

Conclusion on Claim to Refugee Status

[202] For the above reasons, the appellants are each entitled to be recognised as refugees under section 129 of the Act.

The Convention Against Torture

[203] Section 130(1) of the Act provides that:

“A person must be recognised as a protected person in New Zealand under the Convention Against Torture if there are substantial grounds for believing that he or she would be in danger of being subjected to torture if deported from New Zealand.”

[204] Because the appellants have been recognised as refugees, they are entitled to the protection of New Zealand from refoulement to Venezuela and Colombia. The recognition of the appellants as refugees means that they cannot be deported from New Zealand to Venezuela and Colombia: Article 33 of the Refugee Convention and sections 129(2) and 164 of the Act. The exception to section 129, which is set out in section 164(3) of the Act, does not apply. Therefore, there are no substantial grounds for believing the appellants would be in danger of being subjected to torture in Venezuela and Colombia.

The ICCPR

[205] Section 131(1) of the Act provides that:

“(1) A person must be recognised as a protected person in New Zealand under the Covenant on Civil and Political Rights if there are substantial grounds for believing that he or she would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand.

...

(6) In this section, cruel treatment means cruel, inhuman, or degrading treatment or

punishment.”

[206] Again, because the appellants are recognised as refugees, they are entitled to the protection of New Zealand from refoulement to Venezuela and Colombia. For the reasons already given in relation to the claim under section 130 of the Act, there is no prospect of the appellants being deported from this country. Therefore, there are no substantial grounds for believing that they are in danger of being subjected to arbitrary deprivation of life or to cruel, inhuman or degrading treatment or punishment in Venezuela and Colombia. Accordingly, the appellants are not persons who require recognition as protected persons under the ICCPR.

CONCLUSION

[207] For the foregoing reasons, the Tribunal finds that the appellants:

(c) are refugees within the meaning of the Refugee Convention;

(d) are not protected persons within the meaning of the Convention

Against Torture;

(e) are not protected persons within the meaning of the Covenant on Civil and Political Rights.

[208] The appeals are allowed.

Order as to Depersonalised Research Copy

[209] Pursuant to clause 19 of Schedule 2 of the Immigration Act 2009, the Tribunal orders that, until further order, the research copy of this decision is to be depersonalised by removal of the appellants’ and their families’ names and any particulars likely to lead to their identification.

“S A Aitchison” S A Aitchison Member

Certified to be the Research

Copy released for publication.

S A Aitchison

Member