1507725 (Refugee)

Case [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…

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AGLC
1507725 (Refugee) [2018] AATA 3775
Case
[2018] AATA 3775
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a protection visa. The applicant, a national of El Salvador, claimed she could not return to her home country due to threats from gang members who controlled her local area, demanding money and enforcing curfews. She also alleged a family massacre and a personal attack on a public bus. The applicant had arrived in Australia on a temporary visa and subsequently applied for a protection visa after her initial visa application was found invalid.

The Tribunal was required to determine whether the applicant had established a well-founded fear of persecution for a Convention reason, or whether she met the criteria for complementary protection. Specifically, the court needed to assess the applicant's credibility, the nature and extent of the risks she faced in El Salvador, and whether the state could offer effective protection. The court also considered whether the applicant fell within a particular social group, such as a single woman perceived as a wealthy returnee, and whether the risks she faced were shared by the general population.

The Tribunal found the applicant to be a reliable witness, supporting her claims with credible third-party statements, documentary evidence, and country information. While acknowledging that some claims might have been exaggerated due to the pervasive insecurity in El Salvador, the Tribunal was satisfied that the applicant had a genuine fear of returning. The court noted that while the applicant's claims of gang violence and insecurity were consistent with country information, the specific risk to her was not sufficiently particularised to meet the threshold for a Convention reason. However, the Tribunal found that the applicant did face a real chance of significant harm if returned to El Salvador, and that the state was unable to offer effective protection against such harm.

The Tribunal concluded that the decision under review should be affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background 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. In the Department of Immigration and Border Protection’s file ([number deleted]) is a copy of the applicant’s Salvadoran passport. On [date] November 2012, the applicant arrived in Australia while holding a [temporary visa]. The [temporary] visa was valid until [date] October 2013. 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]. 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. 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. 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. The applicant applied for a class XA subclass 866 protection visa on [date] November 2013. The Department interviewed the applicant about her claims for protection on [date] March 2015 and was granted an associated bridging visa.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background 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. In the Department of Immigration and Border Protection’s file ([number deleted]) is a copy of the applicant’s Salvadoran passport. On [date] November 2012, the applicant arrived in Australia while holding a [temporary visa]. The [temporary] visa was valid until [date] October 2013. 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]. 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. 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. 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. The applicant applied for a class XA subclass 866 protection visa on [date] November 2013. The Department interviewed the applicant about her claims for protection on [date] March 2015 and was granted an associated bridging visa. A delegate on behalf of the Minister refused to grant the applicant a protection visa on [date] May 2015. Evidence before the Tribunal 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. 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.

Ratio Decidendi

Legal Principle Established

There was no non-disclosure certificate attached to the Departmental file. CONSIDERATION OF CLAIMS AND FINDINGSCountry of reference 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 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. 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. 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 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. 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. 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.