1507725 (Refugee)

[2018] AATA 3775

1507725 (Refugee) [2018] AATA 3775 (11 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507725

COUNTRY OF REFERENCE:                  El Salvador

MEMBER:Brendan Darcy

DATE:11 September 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 September 2018 at 9:08am

CATCHWORDS

Refugee – Protection visa – El Salvador – Particular social group – Teacher – Perception of being wealthy returnee – Single woman – Gang violence – M-8 and MS-13 gangs – Victim of physical attack – Insecurity in El Salvador – State protection – Risk of harm shared by members of the general population – Delay in seeking protection – Ministerial intervention considered – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 91S, 351, 417, 499, 501J

Migration Regulations 1994 (Cth), Schedule 2

CASES
Ahmed v MIMA [2000] FCA 1571
Applicant A v MIEA (1997) 190 CLR 225
BBK15 v MIBP [2015] FCA 680
DZACC v MIAC [2012] FMCA 314
Kathiravelu v MIMA [2000] FCA 1279
MIAC vMZYRI [2012] FCA 1107
MIAC v SZQRB [2013] FCAFC 33
MIMA v Sarrazola (1999) 95 FCR 517
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Rajaratnam v MIMA (2000) 62 ALD 73
Selvaduraiv Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SHKB v MIMIA [2004] FCA 545
SZBZJ v MIMIA [2004] FMCA 728
SZQII v MIAC (2012) 126 ALD 479
SZSPT v MIBP [2014] FCA 1245
SZSRY v MIBP [2013] FCCA 1284

SZTES v MIBP [2014] FCCA 1765

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of El Salvador applied for the visa on [date] November 2013 and the delegate refused to grant the visa on [date] May 2015.

3. The applicant appeared before the Tribunal on 27 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

   RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any 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.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

21. The applicant claimed to be born on [date] in [Town 1] in El Salvador and claimed to be a citizen of El Salvador. She does not claim to have citizenship of any other country.

22. In the Department of Immigration and Border Protection’s file ([number deleted]) is a copy of the applicant’s Salvadoran passport.

23. On [date] November 2012, the applicant arrived in Australia while holding a [temporary visa]. The [temporary] visa was valid until [date] October 2013.

24. The applicant provided the following documents to the Department in support of her application: a translation of a copy of an employment letter indicating that the applicant had been working as [teacher] for [Educational Institution 1] dated 13 April 2015; a translation of a letter stating that she completed a degree in [academic discipline] at [university]; and a number of articles about killings in [Town 2].

25. Also submitted to the Department was a third party statement dated 18 February 2015 was submitted to the Department claiming to be from the applicant’s mother, [Ms B] of San Salvador. It states that her daughter received a death threat and cannot return to her home country since the threats came from gang members who are in control of her local area and who demand residents abide by a curfew and demand money from visitors. It also mentions that [in] January 2015 there was a massacre of five members of the family in [Town 2] as they were mistaken for rival gang members by another gang.

26. The applicant also provided a further statement handwritten in Spanish with an accompanying certified translation. It is addressed to the Department and it was written by the applicant; however no dates are on the document. It states that the applicant cannot return to [Town 2] which is under the control of gang members and has one of the highest murder rates. She also states that the husband of her best friend was killed.

27. On [date] October 2013, the applicant lodged an application for a [temporary visa]. Also lodged was a request to waive [a certain visa] condition that had been imposed on her earlier [visa]. The request for a waiver was refused so the student visa application was found to be invalid.

28. The applicant applied for a class XA subclass 866 protection visa on [date] November 2013.

29. The Department interviewed the applicant about her claims for protection on [date] March 2015 and was granted an associated bridging visa.  

30. A delegate on behalf of the Minister refused to grant the applicant a protection visa on [date] May 2015.

    Evidence before the Tribunal

31. The applicant applied to have this refusal decision reviewed by the Tribunal on 5 June 2015. The decision record was attached to this review application.

32. On 8 September 2015, the applicant’s then migration agent submitted a legal submission in favour of the applicant’s claims for protection. The submission stated that El Salvador is one of the most violent countries in the world; that the criminal threat in El Salvador is unpredictable, gang-centric and characterised by violence directed against both known associates and targets of opportunity. The submission outlines that the number of missing persons has increased significantly while homicides have fallen, according to 2012-2013 crime statistics. It states that the applicant became a victim of an unprovoked attack on a public bus whereby she was punched and threatened by the assailants.

33. The submission addressed the delegate’s credibility finding about the attack on the applicant whereby the applicant appeared to be inconsistent with her written testimony that she was attacked by members of MS-13 when she told the delegate in the Departmental interview she had been attacked by members of M-18. The representative explained the applicant was very nervous and had not been able to completely understand the interpreter.  

34. The representative also addressed the delay in applying for a protection visa which concerned the delegate by stating the applicant had always feared a life threatening situation if she returned to El Salvador and that the reason for the delay in application had been the poor advice from a previous agent. It also stated that the applicant, as a genuine [teacher], will be targeted for these reasons and provided some country information to support the claim.

35. A third party statement by [Ms C] dated 2 March 2018 was submitted to the Tribunal to support the applicant’s protection claims. [Ms C] claimed that she is known to the applicant as they lived in the same municipality of [Town 2] in San Salvador; that she was threatened by M-18; and that the same gang force residents to live in fear of disappearances, extortion and distress. [Ms C] also claimed her husband was slain by the gang members and she provided an autopsy report to support her claims about her husband being killed by a bullet wound to the head.

36. Another third party statement by [Ms D] dated 3 March 2018 was submitted.  It stated that the applicant, who is known to her, belongs to a very dangerous place in San Salvador, besieged by gang members who collect rent from the local area (or colony) and threaten and harm those who do not pay.

37. A letter from the applicant’s pastor in Australia was also submitted to the Tribunal stating that the applicant was a sincere and reliable person.  

38. The applicant attended a scheduled hearing on 27 March 2018 to give evidence and present arguments that she is owed Australia’s protection obligations. The applicant was assisted by an interpreter in the Spanish and English languages.

39. The applicant was also assisted by her then appointed representative during the hearing, as well as a witness, [Mr A], who claimed to be the applicant’s biological brother.

40. It is noted that the applicant at the time of the hearing remained unmarried and without any children.

41. The applicant appointed a new representative who submitted a post hearing submission on 16 July 2018.

    Non-disclosure certificate

42. There was no non-disclosure certificate attached to the Departmental file.

    CONSIDERATION OF CLAIMS AND FINDINGS

    Country of reference

43. The applicant claims to be a Salvadorian national. Based on the copy of her passport she provided to the Department, now the Department of Home Affairs, the Tribunal finds that El Salvador is her country of nationality and also her receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

    Third country protection

44. No information has been located which refers to El Salvador being party to any other agreements which provide its citizens with the right to enter and reside in a third country, including Spain.

45. According to the French Ministry of Foreign Affairs’ France Diplomatie website, nationals of El Salvador are permitted to enter Spain and other countries that adhere to the Schengen Agreement without a visa for a stay of up to 90 days. According to that website, the countries that adhere to the Schengen Agreement include Austria, Belgium, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovenia, Slovakia, Spain, Sweden and Switzerland.

46. Assuming the right of entry to such states could not be said to amount to a right to enter and reside for the purposes of s.36(3), the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3).

    Credibility concerns

47. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Court of the Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

48. The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196]). However, the Handbook also states (at [203]):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.

49. In this decision, the Tribunal has found the applicant to be reliable and she supported her claims about her genuine fear of returning to El Salvador with credible third party statements, a credible witness (her brother), documentary evidence and available country information. Nevertheless there were a number of specific claims the Tribunal found to be notably exaggerated or embroidered, which the Tribunal found to be understandable given the levels of insecurity throughout El Salvador.

50. Among those non-dispositive aspects of the applicant’s claims, it is accepted the applicant was born in [year] in [Town 1], El Salvador as claimed, and that before she departed she resided with her widowed mother who continues to reside in [Town 2] – a large municipality of about [population deleted] within metropolitan San Salvador. It also accepts the applicant has not married in the past and does not have any children; that she speaks Spanish and some English; that her religion is Roman Catholic; and that she has a degree in [Academic discipline 1], as claimed.

51. Non-controversially, the Tribunal also accepts the witness at the scheduled hearing was the applicant’s oldest brother and that he was granted permanent residency as a minor as part of Australia’s humanitarian intake in the 1980s, as claimed. It is also accepted that the witness returned to El Salvador in 2008 and in 2010 to visit his family, as claimed. 

1. Whilst the Tribunal was generally impressed by the applicant’s credibility, it nevertheless had specific concerns about the applicant’s motivations for making her protection claims, given there was a twelve-month delay in the protection visa being lodged since her arrival and that the applicant had done so only after she failed to have a ‘no further stay’ condition waived for her invalid student visa. It does not accept the applicant was unaware of protection visas as the reason for her delay in application, given the applicant’s brother had originally been a holder of a protection visa when he arrived in Australia in the 1980s and because the applicant had employed a migration agent or lawyer for her student visa.

2. The Tribunal notes that it is legitimate to take into account an applicant’s delay in lodging an application for a protection visa when assessing the genuineness, or at least the depth, of the applicant’s claimed fear of persecution (per Heerey J, Selvaduraiv Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347). In this case, the Tribunal accepts that the applicant has a genuine fear of serious harm if she were to return to El Salvador; however the notable delay in the applicant’s protection visa application and the weakly argued reasons for that delay, which the Tribunal find lack credibility, indicate that the applicant’s otherwise genuine fears were not as deeply and urgently held as exaggeratedly presented to the Tribunal. In this regard, the Tribunal has been invited to consider whether other aspects of her claims were embroidered or exaggerated or even contrived to augment her otherwise credible fears of serious harm.

   Real chance of serious harm: generalised violence

3. As discussed in the hearing, it is accepted that widespread generalised violence in El Salvador occurs at alarming rates.

4. El Salvador has the highest concentration of gang members per capita in Central America, with some 323 mareros (gang members) per 100,000 citizens, double the level of Guatemala and Honduras.[1]. As a result, El Salvador reports escalating numbers of homicides, mostly attributed to gangs and other criminal groups.[2]

   [1] United States Congressional Research Service, Gangs in Central America (26 November 2012) <http:liwww.refworld.orgiclocid/50bf56012.html>

   [2] United States Congressional Research Service, El Salvador: Background and U.S. Relations (23 June 2014) <>

   El Salvador has the fourth highest homicide rate in the world, with 41.2 people per 100,000 murdered in 2013.[3] Authorities in El Salvador have reported that 80 per cent of homicides per year can be attributed to gangs.[4] Although a truce between some of the more prominent gangs had lowered homicide rates in 2012 and 2013, this agreement has since unravelled and violent crime is now returning to earlier levels.[5]

   [3] United States Congressional Research Service, El Salvador: Background and U.S. Relations (23 June 2014) <http:// 53b5072a4.html>

   [4] LP Farina, S Miller, & JL Cavallaro, No Place to Hide: Gang, State, and Clandestine Violence in El Salvador Cambridge, MA: Harvard University Press, 2010.

   [5] United States Congressional Research Service, El Salvador: Background and U.S. Relations (23 June 2014) < 53b5072a4.htnil>; Renewed gang truce unlikely to reduce extortion and street violence in El Salvador’s capital and coastal provinces (2014) Jane’s Intelligence Weekly, 6(44).

5. Despite the decrease in killings, the Salvadoran community in 2012 ‘remained skeptical that overall violence had decreased’.[6] Human rights ombudsman Oscar Humberto Luna similarly warned that: ‘Violence can’t just be measured by the number of murders’. Police figures reported by The Guardian showed a rise in other crimes such as disappearances, robberies, carjackings and extortion.[7] Additionally, rapes and assaults that are rarely reported ‘remain hidden from official figures’.[8]

   [6] Freedom House, Freedom in the World 2013 - El Salvador, 10 April 2013 <

   [7] S Brodzinsky, ‘El Salvador gang truce leads to plummeting murder rates’, The Guardian, 16 May 2013 <

   [8] N Lakhani, ‘Violence against women rises in El Salvador’, Al Jazeera, 7 June 2013 <

6. The Tribunal has considered whether the applicant could obtain, from an authority of El Salvador, protection measures in El Salvador. The independent country information indicates a high level of corruption, inaction and inefficiency in El Salvador’s criminal justice system.

7. So extreme is the level of unfettered gang violence that according to the Salvadoran Association of Journalists, the media in El Salvador had begun self-censoring its reporting of gangs and narcotics trafficking as many journalists were afraid of retaliation from gangs.[9]

   [9] United States Department of State, Country Reports on Human Rights Practices: El Salvador (2013, updated 21 March 2014) <>

   This problem is not restricted to journalists, as gangs are reported to have exercised influence on the country’s judicial system by using intimidation and violence against witnesses, allowing gangs impunity from criminal prosecution.

8. The state of El Salvador has failed to enact legislation to protect its citizens from gang violence and, further, has shown an inability to protect witnesses during and after trials.[10] Post-trial protection is almost non-existent for witnesses and they are often sent home to the place they came from and are rarely relocated.[11] The International Crisis Group in its ‘El Salvador’s Politics of Perpetual Violence’ report stated that the country’s post-war (the civil war formally ended in 1992) political and security institutions have proved singularly unable to respond to an evolving and expanding criminal landscape. The country has suffered at least 93,000 murders since 1993, over half of which can be attributed to gangs. These groups now have 60,000 active members and an estimated support base of 50,000 – 8 per cent of El Salvador’s 6.2 million people. Although gangs such as the Mara Salvatrucha (MS-13) and the two factions of the 18^th Street gang have a worldwide presence, their violent behaviour in El Salvador constitutes a national security crisis. Gangs control an undefined number of informal settlements and urban outskirts all over the country, and finance themselves mostly through small-scale extortion.

   [10] M L Seery, War in the Streets; El Salvador’s Gang Problem and the Need for International Prosecution and Intervention by the Inter-American Court of Human Rights (1 January 2014), < M L Seery, War in the Streets; El Salvador’s Gang Problem and the Need for International Prosecution and Intervention by the Inter-American Court of Human Rights (1 January 2014) <>

   The International Crisis Group’s 2017 report further stated:

   Far from abating, El Salvador’s extreme insecurity could well intensify in 2018 as a number of threats loom over the country and the Central American region as a whole. These include the potentially devastating shock of new U.S. migration polities, economic and fanatical strains, and the possibly disruptive interference by gangs in forthcoming local elections.[12]  

   [12] International Crisis Group, ‘El Salvador’s Politics of Perpetual Violence‘, Crisis Group Latin America Report, International Crisis Group, 19 December 2017 <CISEDB50AD8166>

9. It is noted that the delegate made a finding that the applicant made an inconsistent claim when she wrote that one prominent gang, M-18, had threatened her prior to her departure compared to her oral evidence at the interview in which she stated it was MS-13. It is also noted that the applicant appeared to have speculatively claimed that MS-13 and M-18 are competing territorially over her home area of [Town 2].

10. Given the disturbing background of generalised violence in El Salvador, which includes assessments of extreme insecurity further deteriorating, the Tribunal does not place much weight on this apparent inconsistency and accepts that such an unprovoked incident occurred as claimed by the applicant when she was on a bus on her way to work in 2012 in which she was genuinely threatened and harmed.

11. Neither has it placed much weight on the applicant speculating about which gangs currently active in her home area of [Town 2]. According to a report prepared by the Department on El Salvador dated 23 February 2015 ([file number deleted]), gangs have an ongoing presence in [Town 2].

12. The Tribunal considered whether MS-13 gang activity is particularly bad in [Town 2] or [Town 3]: 

    [Paragraph deleted] [13] [14] [15] [16] [17]

    [13] [Source deleted]

    [14] [Source deleted]

    [15] [Source deleted]

    [16] [Source deleted]

    [17] [Source deleted]

13. Based on available country information and the third party statements, it is accepted that the applicant fears violence in her home area of [Town 2] where her mother continues to reside. It is plausible that the M-18 or some other gang patrol this and neighbouring areas where they intimidate payments from both residents and visitors and impose curfews as part of their ongoing criminal activities and that M-18 and MS-13 compete for territory in [Town 2] for criminal purposes, although the same information indicates that homicide rates in the same areas have declined.[18]

    [18] [File number deleted].

14. The Tribunal also accepts as credible the statements from third parties. Accordingly it accepts [Ms D] who claimed to experience threats and extortion and was forced to relocate from [Town 2] and that the husband of [Ms C] had been killed in [Town 2] by M-18 members for refusing to join the gang.

15. It is also accepted the applicant was genuinely but not urgently motivated to leave her country of origin based on this incident for reasons of safety. Therefore the applicant did have a genuine personally-held fear of serious harm at the time of her departure and at the time she applied for a protection visa, as well as now and into the foreseeable future. It also accepts that the applicant has objective reasons to hold the same fears given the widespread nature of generalised violence continues to persist without internal protection that would reduce the chance of serious harm being less than a real chance, as outlined in the country information above.

16. To this extent, the Tribunal accepts that the applicant has a chance that is equal to or more than a real chance of serious harm, arising from significant physical harassment through threats of extortion, imposed curfews, arbitrary bribery and the collection of ‘rents’ as protection money, if the applicant were to return to either her home area of [Town 2] in San Salvador or throughout her home country, now and into the foreseeable future.

    Well-founded fear of persecution for a Convention Reason

17. Having reached the finding that the applicant has a real chance of serious harm, the Tribunal is required to reach the related finding that the applicant has ‘a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion‘, as required by Article 1A(2) of the Refugees Convention.

    Teaching profession

18. While the applicant did not advance that she faces a real chance of serious harm based on her religion, her ethnicity, her political opinion, imputed or otherwise, or her nationality,  she contended that her fear of persecution is due to her membership of a particular social group, that being a ‘[Teacher 1]‘ or as an ‘[Teacher 2]‘.

19. The Tribunal accepts that the applicant did graduate formal training in a degree for [academic discipline] and that she did teach in [an education] facility called [Educational Institution 1] for about one year from March 2011 until her departure from El Salvador. It also accepted that she has continued to volunteer in [educational organisations] since she arrived in Australia. The Tribunal accordingly accepts that being a [teacher] has been the applicant’s occupation and profession.

20. As discussed in the scheduled hearing, there is country information that teachers in secondary education have been targeted by gang members, often students, for extortion. Teachers are even killed for confiscating drugs or awarding low academic progress. The following is an extract from the Departmental report referred to above ([file number deleted]):

    In October 2014, Elizabeth Kennedy, a United States Fulbright Fellow in El Salvador provided expert opinion to the Immigrant Law Group in Oregon, United States of America, on the operation and influence of MS-13 and M-18 in El Salvador. Kennedy indicates that the reach of both gangs in El Salvador was ‘vast’ and that their main activities include extortion, forced recruitment of children, kidnapping, murder, rape, robbery, theft, and trafficking. Commenting on the practice of extortion, Kennedy notes that MS-13 and M-18 levy taxes through extortion ‘like a legitimate government’ and that the main professions targeted are vendors, transporters (including bus, truck and taxi drivers), teachers and restaurant workers.

    ...

    Kennedy’s claim that El Salvadoran gangs such as MS-13 and M-18 target a number of professions including teachers for extortion is supported by an article on the foundation and operation of MS-13 written by Sonja Wolf. Writing in 2012 for the journal of Latin American Politics and Society, Wolf noted that gang youth in El Salvador[19] run extensive extortion rackets which target teachers, students, shop keepers and taxi and bus companies.[20] The claim is also supported by a July 2014 report in the Global Post on the targeting of teachers in El Salvador.  The report highlighted a series of attacks on high school teachers across El Salvador by gang members, including members of MS-13, and suggested that these attacks were motivated by a number of reasons including giving poor grades, the level of discipline in the class room, extortion by opposing gangs and confiscation of drugs in the class room.[21] The report cites several examples of where teachers have been murdered by MS-13 gang members, including the murder of Jose Aquiles a school teacher in rural Santa Lucia, in western El Salvador by MS-13 gang members, the killing of Raul Antonio Parada the principal of a grade and middle school in eastern El Salvador by an MS-13 gang member who was later arrested and charged, and the attempted murder of Ana Hebe Alvarado, the principal of a grade and middle school in Lourdes, a working-class district on the fringes of San Salvador.[22]

    [19] Although the article is about MS-13, it is not clear if here Wolf is referring to extortion specifically by MS-13 gang members or by gang members in general.

    [20] S Wolf, ‘Mara Salvatrucha: The Most Dangerous Street Gang in the Americas?’, Latin American Politics and Society, 8 March 2012, 54(1), p.78. < <CIS961F9402078>

    [21] S Robbins, ‘El Salvador gangs kill teachers over as little as a failing grade’, Global Post, 7 July 2014 < <CX1B9ECAB9876>

    [22] S Robbins, ‘El Salvador gangs kill teachers over as little as a failing grade’, Global Post, 7 July 2014 < <CX1B9ECAB9876> 

21. The Tribunal is satisfied, based on the country information, that the applicant belongs to a particular social group as a teacher, although the common characteristic is not the shared fear of persecution, the profession of teachers, including [specialised] educators, have consignable characteristics that sets them apart from society at large as set out in Applicant A v MIEA.[23]

    [23] Applicant A v MIEA (1997) 190 CLR 225 at 307 per Kirby J.

22. However, the Tribunal does not accept the applicant will be personally targeted due to this membership. As discussed in the hearing, the applicant has not been targeted in the past as a teacher or as a [specific] teacher and it is implausible that the applicant will face a real chance of being targeted by children in [specific educational] facilities. While the Tribunal notes the same Departmental report mentions there are disturbing reports to indicate that gangs actively recruit [children], no reports were located that refer to MS-13 gang members targeting [specific educators].

23. Based on the applicant’s particular circumstances whereby she had been harmed indiscriminately and without provocation in the past and with regard to the country information above, the Tribunal is not satisfied that the essential and significant reason for the applicant’s real chance of serious harm is based on her profession or vocation as a teacher, as required by s.91R(1).

24. Section 91R(1)(a) provides:

    For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

    (a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and …

25. The possibility of multiple reasons for harm caused has been particularly evident in cases where conduct involving self-interest such as revenge or extortion is involved.[24] As was observed in Rajaratnam v MIMA, ‘extortion can be a multi-faceted phenomenon exhibiting elements both of personal interest and of Convention-related persecutory conduct’.[25] Therefore, it is erroneous to apply a simple dichotomy of whether the perpetrator’s interest in extortion or other conduct is personal or refugee-related.

    [24] See, for example, Rajaratnam v MIMA (2000) 62 ALD 73, applied in Ahmed v MIMA [2000] FCA 1571 (Mathews J, 8 November 2000); Kathiravelu v MIMA [2000] FCA 1279 (Lindgren J, 11 September 2000); MIMA v Sarrazola (1999) 95 FCR 517; SZBZJ v MIMIA [2004] FMCA 728 (Lloyd-Jones FM, 11 November 2004); and SHKB v MIMIA [2004] FCA 545 (Selway J, 5 May 2004), where Selway J held that the Tribunal in attempting to draw a distinction between a Convention-based reason and retribution committed jurisdictional error.

    [25] Rajaratnam v MIMA (2000) 62 ALD 73 at [48] per Finn and Dowsett JJ. Justice Moore also acknowledged that the existence of personal or business attributes of the victim did not remove the possibility that other Convention-related issues might be factors which influenced the conduct or motivation of those engaging in extortion (at [10]). See also MIAC vMZYRI [2012] FCA 1107 (Jagot J, 16 October 2012) at [33] where the court stated that s.91R(1) does not permit a decision-maker to disregard a claim on the basis of an unstated assumption that there is a simple dichotomy between persecution by reason of self-interest and for a Convention reason. In that case, local villagers had killed the claimant’s father and taken his land, which continued to be occupied by a local commander. The Court found that the Reviewer had operated on the basis of an impermissible dichotomy between the self-interested motives of the commander who had benefited from the persecution of the claimant’s father, and the underlying religious reasons motivating the villagers to continue to persecute the family and to enable the oppressive conduct of the local commander. Similarly, see SZQII v MIAC (2012) 126 ALD 479 at [22] where the Court held that the Reviewer’s finding that the motivation of a gang was to obtain money failed to address the claim that the appellant was a target for extortion because he was a young Tamil male. However, contrast DZACC v MIAC [2012] FMCA 314 (Cameron FM, 20 April 2012) for an example of circumstances where it was open to the Reviewer to consider multiple motivations but conclude that the harm was motivated by a non-Convention reason. The claimant had alleged he would be persecuted by the family of his girlfriend and the Reviewer found that although his religion and caste may be reasons that the family found him unsuitable, they were not the reasons that he was targeted by the family: the claimant was targeted because her family objected to the relationship. The Court held that the Reviewer had not applied a false dichotomy or failed to take into account multiple motivations and that the finding was open to the Reviewer.

1. Noting the applicant has not been a specific and deliberate target for serious harm in the past, the applicant raised in the hearing that she may be required to work in a [school environment] within a campus of primary and/or secondary children and that this would raise her chances of serious harm based on her profession. However, it is the Tribunal’s assessment that available country information indicates the real chance of serious harm faced by the applicant is substantially based on the opportunistic criminality of gang members attracted to the regular periodic payment schedules of Salvadoran professionals and public servants, and not because there was any other multi-dimensional reasons for that targeting. For these reasons, it does not accept the applicant will be targeted and face a real chance of serious harm solely or considerably because she is an early childhood teacher specifically or as a teacher more broadly, if she were to return to anywhere in El Salvador. Therefore the harm she fears is not essentially and significantly for reasons to do with her specific membership of a particular social group. 

2. Neither is any information before the Tribunal that the Salvadoran state will withhold its protection to the applicant based on this specific membership of a particular social group, if she were to return to either her home area of [Town 2] and El Salvador more generally.

3. In this regard, the applicant accordingly does not satisfy s.91R(1)(a) and does not have a well-founded fear of persecution for these Convention reasons.

   Targeted as a person by gang members or as a person who resisted gang members

4. In the applicant’s written claims, the applicant stated that one morning in 2011 she was approached on public transport by two assailants (a man and a woman) from MS-13 and was kicked in the stomach by the female gang member and then punched in the face by the male gang member. The applicant further claimed that she was threatened and told not to travel on the bus route again as they knew her face. According to the decision record, the applicant elaborated that this incident of harm occurred in early July and that it began with an altercation over the applicant’s bag which had important documents in it that she did not want to give up. The decision record also included information from the applicant that the man held a gun to her and threatened her but did not hit her. She also said she noticed his tattoos. During the scheduled hearing, the applicant again reiterated this incident of harm, mentioning that it occurred in July 2011 and she noticed MS-13 tattoos on at least on the  assailants’ arms and that she was punched, held and threatened with a gun. She also mentioned to the Tribunal that although she was threatened and told not to travel on the bus route again, she continued to travel the same route but leaving at earlier times and employing a combination of different bus routes. When the Tribunal asked her the reasons she did not mention the kicking by the female assailant, the applicant stated there was no kicking.  She also claimed that she did not go to the police to report the incident.

5. The Tribunal is mindful of the operation of the human memory during incidents of harm and, given the passage of time, discrepancies not only occur, but can be expected. It is also mindful to consider that the applicant can be provided benefit of the doubt. For these reasons, it accepts that a plausible incident of harm did occur in and around July 2011 involving criminals connected to MS-13, whereby the applicant had been physically assaulted and threatened. It also accepts the applicant was not threatened again and that she did not report the matter to the police given the inaction and corruption in El Salvador’s criminal justice system, which the Tribunal accepts to be reasonably advanced.

6. However, in the context of the adverse credibility findings regarding the applicant’s delay in applying for a protection visa, the Tribunal finds the applicant has exaggerated this actual incident of harm. It does not accept the applicant continued to travel to work using changed bus routes and travelling at earlier times to avoid these criminals or that she was of ongoing interest to MS-13 due to this relatively minor incident, given she did not report the incident to the authorities and given she remained in El Salvador without relocating or finding new work until November 2012.

7. While the applicant claimed that she feared being forced to join MS-13 or M-18 and the threat of extortion, she did not claim that she had ever been invited to join one of these criminal outfits and she admitted that neither her nor her mother nor brother had experienced extortion in the past. This testimony indicates that the applicant did not hold urgent fears of gang violence or that she was targeted in the past.

8. The applicant also claimed in her written claims that one of the triggering reasons for departing El Salvador for Australia had been the killing of her best friend’s husband. As mentioned above, the Tribunal accepts this and that he was killed for refusing to join one of these gangs. However, although this event informed the applicant’s fear in remaining in [Town 2], this killing does not indicate that the applicant was specifically a targeted person of interest to the gangs as a recruit or as a victim in the past, given she had not been subjected to such demands in the years and months leading up to her departure. 

9. The applicant also mentioned that soon after arriving in Australia, there was a threatening telephone call to her mother’s home asking for the applicant and that, following the phone call, the family cancelled the phone line. However, given the applicant did not receive any threats in the months leading up to her departure and in the context of the Tribunal’s other adverse credibility concerns, it does not accept the applicant’s mother had ever received any threatening or suspicious phone calls from gang members or other criminals seeking the whereabouts of the applicant and that the applicant advanced this specific claim to augment her otherwise credible fears about returning to El Salvador.

10. Her mother, it was further claimed during the hearing, relayed to the applicant the neighbourhood of [Town 2] was patrolled by MS-13. The Tribunal noted that the applicant had previously claimed it was M-18 that territorially controlled the area. The applicant’s representative claimed that it was M-18 and the applicant had been confused in the hearing due to stress. Based on the weight of third party statements, the Tribunal accepts the applicant’s earlier claim that M-18 is the dominant force in her neighbourhood.

11. Based on the credibility findings above, both favourable and adverse, as the Tribunal assesses that the applicant is not a specific person of interest to MS-13, M-18 or the assailants she encountered on public transport, it does not accept the applicant a real chance of serious harm of any other criminal gang operating within [Town 2] or throughout El Salvador, based on this specific membership of a particular social group. Neither does it accept the applicant will face a real chance of being asked to join or be forcibly recruited into one of these gangs on the basis the applicant resisted the authority of or contravened the rules of any gang members if she were to return to either her home area of [Town 2] or El Salvador more generally, given the Tribunal’s findings the applicant exaggerated aspects of incidents involving threats and physical ill-treatment.  Furthermore the Tribunal does not accept the applicant faces a real chance of serious harm for any Convention reason as it does not accept the applicant may be persecuted for reasons to do with membership of a particular social group, being a person targeted by gang members or a person who resisted gang members.

12. As discussed earlier in this decision, these specific adverse credibility findings do not diminish the applicant’s otherwise credible fears of persecution arising from generalised gang violence, although the Tribunal does not accept the applicant held these fears so urgently given the delay in her application for a protection visa.  

    Gender and marital status

13. For completeness, the Tribunal has considered whether the applicant will face a real chance of serious harm based on membership of a particular social group, as a single woman.  The Tribunal notes that the applicant’s representative mentioned the applicant’s chances of serious harm or risks of significant harm are compounded by her gender and single status and that she may be subjected to sexual advances by gang members in the post hearing submission.

14. A 2013 article on the Latin America Bureau website states that, in addition to violence against female gang members and female partners of male gang members, women in the general community ‘are also subjected to extreme violence from gangs’:

    Revenge or retaliation against an enemy is often taken out on women. Violence in these cases tends to be extremely cruel and sadistic and the victims’ bodies are objectified and used as a means to convey a message of terror. Gang rape of women and girls to ‘celebrate’ the birthday of a mara [gang] member or a victory are also common: women are a gift, a trophy…

    El Salvador has become a catchment area and transit country for trafficking networks and it is an enormously lucrative business for the maras. The majority of victims are vulnerable women and girls who are sexually exploited or put into forced labour, for example as domestic slaves.[26]

    [26] V López Calvo, & G Santos Pejic, ‘El Salvador: Truce For The Gangs, No Truce For Women’, Latin America Bureau, 19 March 2013 <

15. The Latin America Bureau article further states that killings of women decreased following the 2012 gang truce. However, women’s rights groups ‘question whether this means there has been a reduction of violence against women more widely within society’. While a reduction in the number of homicides overall also means a reduction in killings of women, other forms of violence against women, such as sexual assault, ‘are on the rise’. Women’s groups assert that ‘the peace negotiations don’t seem to address the hyper-masculinised nature of violence, rooted in the machismo that dominates Salvadoran society’.[27]

    [27] V López Calvo, & G Santos Pejic, ‘El Salvador: Truce For The Gangs, No Truce For Women’, Latin America Bureau, 19 March 2013 <>

    The Christian Science Monitor reported in 2011 that ‘Femicides often seem to accompany the growth of organized crime’ and, in El Salvador, some are ‘directly linked’ to gangs. The high rate of murders and femicides in 2011 led then-Salvadoran Defense Minister General Munguía Payés to suggest ‘that some of the victims were involved in local drug sales’. One theory regarding the link between femicides and the drug trade is that ‘in a culture where females are sometimes seen as property, gangs use the killing and abuse of women to strike at their rivals’. The article also notes that women can be killed by gangs in order to send a message to rivals or to the government. Women’s rights groups, however, ‘have rejected this simplistic explanation, arguing that the killings reflect power relations between the genders more than organized crime’. Rights groups assert that women often make easy targets in areas beset by high levels of violence. Femicides, therefore, ‘may be an indicator less of organized crime than of the culture of violence that comes in the wake of organized crime’.[28]

    [28] H Stone, ‘Violence against women rises in El Salvador’, The Christian Science Monitor, 24 May 2011 < <CX265462>

16. According to Ima Guirola, spokeswoman for the Women’s Studies Institute (CEMUJER), the ineffectiveness of state institutions, such as the police force and the prosecutor’s office, to investigate cases of violence against women means that ‘everything is blamed on gang violence or other kinds of problems that do not reflect what is really happening’.[29]

    [29] E Ayala, ‘Impunity, Machismo Fuel Femicides in El Salvador’, IPS News, 10 April 2013 <>

    The Tribunal has also given particular regard to the representative’s country information about resisting the authority of gangs themselves from the UNHRC Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from El Salvador (March 2016):

    Gangs in El Salvador reportedly perceive a wide range of acts by residents of the area under the gang’s control as demonstrating ‘resistance’ to their authority. Acts commonly construed as challenging a gang’s authority reportedly include but are not limited to: criticizing the gang; refusing a request or ‘favour’ by a gang member; arguing with or looking mistrustfully at a gang member; refusing to participate in gang activities or to join the gang; rejecting the sexual  attention of a gang member having (perceived) links with a rival gang or a zone controlled by a rival gang; refusing to pay extortion demands  wearing certain clothing, tattoos or other symbols, participating in civil, religious or other organizations viewed as undermining the gang’s authority; and passing on information about the gang to rivals, authorities or outsiders. Most perceived contraventions of these gang-imposed rules are dealt with severely: individuals whom the gang members suspect of resisting their authority are reported often to be killed without prior warning, although sometimes the killing is reportedly preceded by threats and/or other attacks against the person concerned. [Emphasis added by representative.][30]

    [30] AAT Folio 2018-2019; a copy of the guidelines is on the Tribunal’s file: Folio192-2015.

17. Although the rate of femicide is higher in El Salvador than anywhere else, the proportion of femicides that make up the overall murder rate is not sufficiently high to find that there is a real chance that the applicant would be subjected to such harm in circumstances where she has no family and no involvement in gang activity in El Salvador. Reuters reported in November 2013 that ‘femicide rates are part of high levels of general violence in many countries in Central America’, including El Salvador. Women in such countries ‘can get caught up in organised crime and gang violence’, and are often killed by gang members to settle scores with rivals, send a message to male relatives, or as retaliation for rejecting sexual advances.[31]

    [31] Moloney, A 2013, ‘Struggling with femicide and impunity for crimes against women in Central America’, Thomson Reuters Foundation, source: Reuters, 25 November <

18. The Christian Science Monitor reported in 2011 that ‘Femicides often seem to accompany the growth of organized crime’ and, in El Salvador, some are ‘directly linked’ to gangs. The high rate of murders and femicides in 2011 led then-Salvadoran Defense Minister General Munguía Payés to suggest ‘that some of the victims were involved in local drug sales’. One theory regarding the link between femicides and the drug trade is that ‘in a culture where females are sometimes seen as property, gangs use the killing and abuse of women to strike at their rivals’. The article also notes that women can be killed by gangs in order to send a message to rivals, or to the government. Women’s rights groups, however, ‘have rejected this simplistic explanation, arguing that the killings reflect power relations between the genders more than organized crime’. Rights groups assert that women often make easy targets in areas beset by high levels of violence. Femicides, therefore, ‘may be an indicator less of organized crime than of the culture of violence that comes in the wake of organized crime’.[32]

    [32] Stone, H 2011, ‘Violence against women rises in El Salvador’, The Christian Science Monitor, 24 May < <CX265462>

100.   Although the rate of femicide is higher in El Salvador than anywhere else, the proportion of the overall murder rate is not sufficiently high to find that there is a real chance that the applicant would be subjected to such harm in circumstances where she has no family and no involvement in gang activity in El Salvador. The country information regarding violence against women indicates that this is frequent, however that it is most often at the hands of male family members or gangs, neither of which the applicant has contact with in El Salvador.

101.   Based on the country information above and the applicant’s accepted circumstances as a single woman, who is not a criminal or gang member or with a family member who is a gang member, the applicant does not face a real chance of femicide or being subjected to forced sexual or physical ill-treatment arising from the rejected advances of gang members if she were to return to [Town 2] or anywhere else in El Salvador.

102. With regard to other harm amounting to serious harm, as required by s.91R(1)(c), such as ongoing extortion, physical ill-treatment arising from the refusal to pay extortion and other significant physical harassment by gang members, the Tribunal is satisfied that there would be a real chance of serious harm faced by the applicant. However, it is not accepted that the applicant will be targeted based on her being a woman or a single woman, as the essential and significant reason for that harm as required by s.91R(1)(a), if she were to return to El Salvador. This is because the Tribunal assesses the criminal proclivities of Salvadoran gang members toward women outside organised crime culture are not motivated primarily and substantially by their gender or marital status but their own opportunistic capacity to generate income and to project territorial control or that the applicant’s marital status and gender are not the essential and significant reason or reasons for the persecution.

103.   The Tribunal further notes the applicant did not advance fears of femicide or other serious harm arising from domestic or intimidate partner violence or the lack of internal protection from such crimes from the authorities. For completeness, while such non-gang related gender based harm is a serious problem in El Salvador, the Tribunal finds that the applicant, as a tertiary-educated single woman, does not face a real chance of serious harm arising from domestic violence, if she were to return to anywhere within El Salvador, now or into the foreseeable future.

104.   Based on these findings about the applicant’s gender and marital status, the applicant does not have a well-founded fear of persecution for a Convention reason on this basis.

Perceived to be wealthy returnee

105.   The Tribunal accepts that wealthy Salvadorans and wealthy returnees have a membership of a particular social group. It is also accepted, as the applicant has claimed, that Salvadoran returnees and their family members can be imputed with the same membership for the Refugees Convention purposes and that has a chance of being imputed as a wealthy returee or for some other related Convention reason.

106.   The Tribunal, however, has been unable to find any country information that returnees, involuntarily or otherwise, are perceived to be wealthy and are targeted as such. The Tribunal notes that the applicant’s brother provided oral evidence that when he visited El Salvador he was perceived as wealthy when people were asking about his background, but did not claim he had been harmed as he was only in El Salvador for a few weeks.  

107.   In the applicant’s post hearing submission, the applicant’s representative raised a related claim that the applicant will be perceived as a person who receives remittances from abroad and that she has a real chance of facing threats and extortion. The submission elaborated that the applicant will find it difficult to find employment and she will have to rely on the remittances from her Australian citizen brother, who also forwards remittances to the applicant’s mother.

108.   It is accepted that the applicant may face some challenges or difficulties in finding work and will foreseeably rely, at least initially, on remittances, if she were to return to live with her mother in [Town 2]. However, as mentioned in the hearing, the applicant has been living with her mother for some time and her mother, who currently lives alone, had been receiving remittances for some time. (The applicant stated her brother had been forwarding about 200-300 Australian dollars per month to his mother.). While it was advanced that the mother of the applicant had been approached by gang members to enquire about the applicant’s whereabouts, curiously the applicant and the witness did not advance the information that the applicant’s mother had been targeted by gang members for extortion in the past. In the context of the Tribunal’s earlier adverse credibility finding that the applicant has embroidered specific claims about being targeted by or having resisted gang members, the Tribunal has been further invited to consider this specific claim to be contrived. Furthermore, had persons who receive remittances been targeted it would be reasonable to expect the applicant’s mother had been adversely targeted for the same reason as claimed by the applicant. In this regard, the Tribunal finds that the applicant’s specific claim about receiving threats had been understandably embellished to augment her otherwise credible claims. Neither does the Tribunal accept the applicant’s profile as a returnee will be elevated due to her brother residing in Australia, given during and after his previous returns to El Salvador did not lead to any incidents of harm to the applicant in the past.

109.   Based on these findings and considerations, the Tribunal acknowledges there is a chance of being perceived as relatively wealthy or as a wealthy returnee and there is a risk the applicant’s reliance on remittances will come to light. However, the Tribunal accesses that those chances are remote and far-fetched. Based on this finding, it does not accept either the applicant’s mother or the applicant will face chances of serious harm based on being perceived to be wealthy or being in receipt of remittances or as a returnee with a relative in Australia or for a combination of these and any other related reason, if the applicant were to return to live with her mother in her home area of [Town 2].

110. In making this finding, the Tribunal makes a further finding that real chance of serious harm arising from generalised violence throughout El Salvador is not for the essential and significant reason regarding the applicant’s accepted membership of a particular social group as someone who is imputed as a wealthy returnee or any other related Convention reason, if she returns to [Town 2] specifically or El Salvador, more generally, pursuant to s.91R(1)(a).

111.   Accordingly the applicant does not have a well-founded fear of persecution for a Convention reason on this basis regarding real and perceived economic circumstances, if she were to return to either [Town 2] specifically, or El Salvador more generally, in the reasonably foreseeable future.

Findings regarding Refugees Convention

112.   The applicant did not advance any further Convention reasons as the essential and significant reasons she faces a real chance of serious harm and the Tribunal is not required to further make out the applicant’s case for her.

113. Even when considering a combination of the applicant’s background, including her gender, her marital status, her profession and the arguments that she will be perceived to be a wealthy returnee, the Tribunal remains unsatisfied that the applicant will be targeted based on any Convention reason, as the essential and significant reason for that harm as required by s.91R(1)(a), if she were to return to her home area of [Town 2]. This assessment is reached in part based on the adverse credibility findings that the applicant has notably embellished specific claims that she is of ongoing interest to gangs back in El Salvador.

114.   Nevertheless, the Tribunal is satisfied there is a real chance of serious harm arising from generalised violence in El Salvador if the applicant were to return to her home area of [Town 2].

115.   The weight of country information has invited the Tribunal to further find that the real chance of serious harm from generalised violence exists in [Town 2] and throughout El Salvador would be the same or similar for the applicant in accessing internal protection from state authorities. Therefore the applicant will face a chance of serious harm for a non-Convention reason which will be foreseeably equal to or more than a real chance of serious harm, as the applicant is unwilling to avail herself of protection anywhere within El Salvador.

116. However, the Tribunal does not accept the applicant has a well-founded fear of persecution, as the Tribunal is not satisfied the real chance of serious harm arising from generalised violence in El Salvador is for any Convention reasons or that the applicant satisfies s.91R(1)(a).

117.   Having considered all the applicant’s dispositive claims, both individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. 

118. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

Complementary protection criteria

119. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

120.   As the ‘real chance’ standard is the same as the ‘real risk’ standard: MIAC v SZQRB [2013] FCAFC 33, the Tribunal has substantial grounds to believe the applicant, as a necessary and foreseeable consequence of departing Australia for El Salvador, has a real risk of harm based on the generalised violence and deteriorating insecurity outlined in the country information above, notwithstanding the operation of s.36(2B).

121.   The Tribunal accepts that the harm faced by the applicant amounts to being significant through frequent psychical harassment and the infliction of severe pain and suffering, both mental and physical, through extortion, theft and threats of physical harm and kidnapping by criminal gangs for ransom.

122. However, there is also no suggestion in this case the applicant faces a real risk of capital punishment as required by s.36(2A)(a).

123.   Although the homicide (and femicide) rates are high in El Salvador, the Tribunal has already made findings that the rates do lead to a real chance of being killed by gang members or through domestic violence based on her marital status, her gender, her profession, her economic circumstances, having resisted a gang member in the past or a combination of these reasons. Accordingly the Tribunal does not accept the applicant has as real risk of being arbitrarily deprived of her life as required by s.36(2A)(b).

124. Given the country information about generalised violence and its earlier findings that the applicant is not a person of ongoing interest to any gang member, the Tribunal is not satisfied that the applicant faces a real risk of torture as required by s.36(2A)(c). This is because the definition of ‘torture’ is distinct from significant harm defined under s.36(2A)(d). In this case, the Tribunal is not satisfied the purpose of significant harm on the applicant is to intentionally to inflict severe pain and suffering for obtaining information or a confession, punishment, or intimidation or cohesion in respect to herself or a third person.

125. Neither is the Tribunal satisfied the applicant will have a real risk of being subjected to degrading treatment or punishment through extreme humiliation, as required by s.36(2A)(e).

126. However and notwithstanding s.36(2B), it is satisfied that the applicant faces a real risk of the harm that amounts to significant harm by being subjected to cruel and inhuman treatment and punishment, as defined in s.36(2A)(d) of the Act

Taken Not To be a Real Risk of Significant Harm

127. Section 36(2B) qualifies s.36(2)(aa) by setting out three circumstances in which there is taken not to be a real risk that a non-citizen will suffer significant harm in a country. In order to find that an applicant meets s.36(2)(aa), decision-makers will need to be satisfied that none of these circumstances exist. The circumstances are:

·     where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm, pursuant to subsection.36(2B)(a); or

·     where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm, pursuant to subsection.36(2B)(b); or

·     the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally, pursuant to subsection.36(2B)(c). 

128.   As discussed in the hearing, the Tribunal finds that it would not be reasonable to relocate the applicant to a different area of El Salvador as the appreciable risk of significant harm of generalised violence persists throughout the applicant’s country of reference.  Based on the country information whereby El Salvador is beset with unacceptable levels of violence and life-threatening insecurity, the Tribunal finds that the applicant could not obtain from an authority of the country sufficient protection from generalised violence if the applicant returned to any area of El Salvador, including her home area.

129. It was also further discussed in the scheduled hearing that the Tribunal held concerns the applicant’s circumstances may be at odds with that the final qualification in criterion regarding taken not to be a real risk to the applicant facing significant harm: s.36(2B)(c).

130.   As part of the applicant’s post hearing response, the applicant’s representative argued that the applicant was ‘distinguishable as a teacher, a returnee from overseas who is likely to be perceived as wealthy, a person likely to resisted authority and to compound the risk, a single female’, and as such faced a real risk of significant harm personally and not one faced by the population generally. It is also noted the representative wished the Tribunal has had to have specific regard to case law raised by the applicant’s representative: SZSRY v MIBP [2013] FCCA 1284 by Judge Driver. The finding about distinguishable characteristics was obiter to the specific jurisdictional error identified. 

131.   The Tribunal, however, notes that obiter finding went beyond the language of s.36(2B)(c).

132. The Federal Court has subsequently held that the natural and ordinary meaning of s.36(2B)(c) requires the decision-maker to determine whether the risk is faced by the population of a country generally as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk.[33] In SZSPT v MIBP [2014] FCA 1254, the Court held that, while every citizen who broke a law of general application would necessarily face a risk of punishment personally, s.36(2B)(c) applied because it was no different from the risk faced by the population generally.[34] The Court’s reasoning suggests that the ‘faced personally’ element of this qualification requires the individual to face a risk of differential treatment, or because of characteristics that distinguish them from the general populace.[35]

[33] SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014) at [11]-[13]. An application for special leave to appeal this aspect of the judgment was dismissed by the High Court: SZSPT v MIBP [2015] HCASL 114 (Kiefel J, 18 June 2015). See also comments of the court to similar effect in: the judgment at first instance in SZSPT v MIBP [2014] FCCA 1388 (Judge Raphael, 1 July 2014) at [15] (the provision would apply in a situation of ‘universal danger’, but not where the situation was ‘worse for a person of [a particular] ethnicity’); SZSFF v MIBP [2013] FCCA 1884 (Judge Lloyd-Jones, 22 November 2013) at [33], [49] (risk must be ‘faced by the individual personally in light of the individual’s specific circumstances’); SZTES v MIBP [2014] FCCA 1765 (Judge Cameron, 12 August 2014) at [24] (risk must be ‘particular to’ the individual); SZSRY v MIBP [2013] FCCA 1284 (Judge Driver, 13 December 2013) at [43] (risk must be faced ‘in light of [the applicant’s] specific circumstances’).

[34] [2014] FCA 1245 (Rares J, 3 November 2014). In this regard, the Court observed that there was no differential treatment as the law was one of general application and was not applied in a discriminatory manner: at [12]-[14].

[35] SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014) at [11]-[15]. Contrast SZSFF v MIBP [2013] FCCA 1884 (Judge Lloyd-Jones, 22 November 2013), where the Court endorsed a submission by the Minister to the effect that where serious human rights violations in a particular country are so widespread or so severe that almost anyone would potentially be affected by them, this may disclose a sufficiently real and personal risk: at [34], [49]; however, these obiter comments should not be followed as they are inconsistent with other authorities including the appellate level judgment in SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014).

133.   Furthermore in BBK15 v MIBP [2015] FCA 680, it was noted that the then Tribunal Member was correct to draw attention to a circumstance where a real risk of harm faced by a visa applicant is a risk shared by the general population, rather than one to which the visa applicant particularly is exposed in some individual or personal sense and upheld that the appellant was not more exposed to real risk of significant harm. A risk shared with the general population is taken not to be a ‘real risk of harm’ for the purpose of s.36(2)(aa).

134.   The Tribunal has already made specific and cumulative findings that it does not accept the applicant will be targeted for any Convention and other reasons, including as a teacher, her gender, her marital status, a forced returnee or as someone who is perceived to be wealthy, a wealthy returnee or someone who resisted gang violence in the past or based on a combination of these reasons. These are the same risk factors the Tribunal has considered under the complementary protection criterion. Based on the Tribunal’s assessment of the country information and the applicant’s accepted personal circumstances, none of these risk factors, neither specifically nor cumulatively, substantially elevate or heighten the applicant’s risk of significant harm arising from gang related generalised violence over and above the general population.

135. In this matter, the Tribunal finds those accepted risk factors, cumulatively considered, are not sufficiently distinguishable for the purposes of s.36(2B)(c), if she were to return to [Town 2], as it is assessed the risk of significant harm to the applicant are not distinctly or differentially greater than the risk facing other residents of [Town 2] or those residing throughout El Salvador due to violent gang members and the low capacity of the authorities to protect the population in general.

136.   The Tribunal makes further findings that the risk of significant harm faced by the applicant, who has not claimed to have broken any law or to have any other residual claims to consider in this review, is not one faced ‘personally’ by the applicant or is particular to her or that she faces a risk of differential treatment due to any of the accepted characteristics that distinguish her from the rest of the population. Instead the risk of significant harm faced by the applicant is attributable to her membership of the population of El Salvador and is shared by that population group in general.[36]

[36] SZTES v MIBP [2014] FCCA 1765 (Judge Cameron, 12 August 2014) at [23]-[24], citing SZSRY v MIBP [2013] FCCA 1284 (Judge Driver, 13 December 2013). In SZTES v MIBP, the Court found there was no error in the Tribunal’s finding that harm from insurgent attacks in Kabul was faced by the population generally and not by the applicant personally. An application for leave to appeal from the judgment was dismissed by the Federal Court: SZTES v MIBP [2015] FCA 719 (Wigney J, 17 July 2015).

137. Accordingly, as there is not taken to be a real risk the applicant will face significant harm in her country of reference, as the Tribunal is satisfied the real risk is one faced by the population generally and not faced by her personally, pursuant to s.36(2B)(c), if she were to be removed from Australia to [Town 2] specifically or El Salvador more generally.

138. Based on the above findings regarding s.36(2B), the Tribunal is not satisfied, having considered her claims individually and cumulatively, there are substantial reasons for believing there is a real risk the applicant will suffer significant harm if removed from Australia to El Salvador.

139. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

Ministerial Intervention

140.   While reaching this decision has been difficult, the Tribunal is confident that it has reached its decision in accordance with the Refugees Convention and the complementary protection provisions.

141. Given the widespread insecurity in El Salvador as outlined above and the Tribunal’s findings that there is a real chance of serious harm but not for a Convention reason and real risk of significant harm notwithstanding the operation of s.36(2B)(c), the Tribunal has considerable sympathy for the applicant in such circumstances and notes that it found the applicant to be a credible witness at the hearing.

142. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Minister’s guidelines regarding Ministerial intervention under s.351, s.417, and s.501J of the Act but has decided not to refer the matter.

143. The Tribunal notes that it is open to the applicant to directly request the Minister to personally intervene in her matter, pursuant to s.351 of the Act.

144.   In examining the Ministerial guidelines regarding requesting the Minister to personally intervene, the Tribunal is also confident the applicant’s circumstances had been anticipated by the relevant legislation and the Tribunal’s application of relevant provisions is not an unintended consequence of the legislation.

145.   However, the guidelines provide the applicant scope to do so as there may be strong compassionate circumstances that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen, namely the applicant’s brother, whom the Tribunal also found to be a credible and reliable witness.

Conclusion

146. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

147. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

148. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).

DECISION

149.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Brendan Darcy
Member