1606113 (Refugee)

[2019] AATA 422

1606113 (Refugee) [2019] AATA 422 (21 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606113

COUNTRY OF REFERENCE:                  El Salvador

MEMBER:Luke Hardy

DATE:21 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 21 February 2019 at 11:10am

CATCHWORDS
REFUGEE – protection visa – El Salvador – social group – gang violence threats – inconsistent evidence re nature of harm – family’s relocation – non Convention related claim – credibility issues – invalid s438 certificate – no real risk of significant harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 438, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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, [name deleted], is a citizen of El Salvador. He arrived in Australia on a [temporary] visa on [date] July 2014. He lodged a protection visa application three months later on 15 October 2014, just before his [temporary] visa expired, and the delegate refused to grant the visa on 13 April 2016. [The applicant] subsequently sought review of that decision.

3. [The applicant] appeared before the Tribunal on 22 January 2019 to give evidence and present arguments. He was accompanied by his adviser, a registered migration agent.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The issues

5. The issues in this case are [the applicant]’s credibility and whether, on accepted facts, he is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.

6. For the following reasons, I have concluded that the decision under review should be affirmed.

   Claims

7. [The applicant] is a married man with two sons who live with their mother back in El Salvador. He also has a daughter from a prior marriage.

8. In his protection visa application form, [the applicant] described himself as a [a public servant] for [a government department] in [Town 1]. In the same form he also said he worked in [a particular area], previously for a private company in [a town] from 2000 to 2012 and then with [the same government department] in [Town 1] from 2013 to 2014. He provided copies of his [qualifications].

9. In oral evidence, [the applicant] told me that the kinds of [work he does].

10. In a separate statement and in oral evidence before me, he said that some weeks after he started working for the [government department] he also started [doing work for] government officials including [details deleted].

11. In the statement attached to his protection visa application form, [the applicant] claimed that at 11:00 am on Friday 2 April 2014, he and [Son 1] opened his front door to three gangsters, one of them armed, who demanded that he assist them in [their business] by giving them details about [his work]. He claimed a fourth armed gangster blocked the back door of the house. He said they wanted to kidnap the [applicant’s colleagues]. He said that they threatened him, saying that if he failed to help them they would cut him into pieces, put them in a suitcase and throw the latter on the street, and also do the same to his family.

12. [The applicant] claimed that he told the gangsters about a [event] three months hence, claiming that he did this to buy time for himself. He claimed the gangsters demanded that he provide them with his telephone number so that they could keep in touch with him. He claimed they told him they would follow him to make sure he did not try to get away. He claimed that they told him on that occasion that if he tried to escape, alert the authorities, or make “any wrong move”, his children would be the first pay with their lives.

13. [The applicant] claimed that the same gang dismembered another worker around that time apparently for refusing to help them kidnap a government official.

14. [The applicant] claimed he discussed this problem with his family. He claimed they decided he should not try to seek asylum in [Country 1] because the gang was at large there as well. He claimed he then thought of his sister in Australia and decided to visit her here. He claimed he did not tell her his real purpose in coming to Australia. He claimed that while he was borrowing money to pay for his travel the gang called him demanding cash for themselves. He claimed he told them to wait. Later, he claimed, he told them he had to go to [another town] for a few days for work reasons, and used that pretext as his opportunity to leave El Salvador. He claimed he moved his family into “a place with security”.

15. [the applicant] did not name the gang in his statement. He attached an article about crime gangs involved in extortion, drugs and murder in El Salvador. The article refers to the problem as generic and mercenary, potentially affecting the population as a whole but mainly targeting people perceived to have money. [The applicant] also submitted an article in Spanish referring to three police collaborating with criminals.

16. In a separate statement to the Department, [the applicant] said he could not afford tickets for his whole family in the short time he had to get out of there himself.

17. [The applicant] did not attend a scheduled interview with the Minister’s delegate. Is Immigration file contains a s.438 non-disclosure certificate covering three folio pages in his file: ff. 47. 50 and 64. The first of these is simply an internal checklist filled out so as to check that the protection visa application is complete and valid. The second is a checklist of actions taken within the department to verify [the applicant]’s identity, which is not in question. The third is a “disclosure  decision checklist” with no substantive information entered on it. None of these items contain information capable of influencing a decision maker, and certainly not this Tribunal. All three of these items are internal working documents and identified as such in the s.438 certificate in [the applicant]’s file. For this reason, the certificate is invalid and there is therefore no valid reason for withholding disclosure of the three items. However, as I just stated, none of them contain information relevant to the Tribunal and the decision I am required to make. I considered disclosing to [the applicant] that his Immigration file contained an invalid certificate referring to three documents that are irrelevant to the decision I must make, but I did not want to cause him any stress or confusion about what is, to be frank, an erroneous process undertaken by staff in the Department. 

18. On 16 January 2019, [the applicant] submitted a seven-page statement of claims dated 11 January 2019. In that statement, he claimed that El Salvador is in a state of “non-stop civil war” between the general population and the [Gang 1] gangs that originated in [Country 1]. He claimed he was bullied at school and found himself caught in the crossfire during a campus occupation by leftist guerrillas back in the 1970s. He said this prevented him from finishing his studies. he said he supported [a political party] but was not in El Salvador during the 2008 elections as he was visiting his sister in Australia. He talked more about his previous visit to Australia and of how he felt obliged to return to El Salvador out of concern for his mother.

19. In this statement, [the applicant] said that the gangsters, now identified as [Gang 1] members, came to his house at 11:00 am on 4 March 2014. He said now that they wanted him to help them kidnap [his colleague]. He said that when he made arrangements to flee to Australia, he left his wife and children “at a relative’s” in [a town], and added that his family has since then been moving from place to place to avoid being tracked down by the [Gang 1]. He said that if he returns to El Salvador, the [Gang 1] will then be able to locate his family and kill them along with him.

20. At the Tribunal hearing, [the applicant] said he started working as a [occupation] to and from sites near his home after the Ministry agreed to his request for a relocation from the site where he previously worked with heavy machinery, a long commute from his house.

21. [The applicant] told me his wife currently works as a [occupation] at a number of different [locations]. I asked him where she and the family now resides and he gave an address in [Town 1], the same own where he and his family were living before he left El Salvador. He became confused n his evidence when he tried to tell me that his wife and children had had to move from place to place, “two or three times”, because eventually all he meant was that they all moved away from [Town 1] temporarily and then moved back to their own home again before he left El Salvador. I asked him what he had meant in his original statement about moving his family to “a place with security”, and in reply he described a gated community with one entrance and one exit.  

22. [The applicant] told me about his two sons. He said [Son 1] is doing sporadic work with different companies because it is not easy to find jobs in El Salvador. He said his other son is nearing the end of his high school studies but does not want to make a decision about further study in El Salvador until he knows the outcome of [the applicant]’s protection visa application, as he might then be able to be sponsored to come to Australia and study here.

23. I asked [the applicant] why he and his family moved back to [Town 1], and to the same place where they had previously lived, and he said they did so for work. He said that his family have remained in their original home the whole time he has been here in Australia. By this evidence, the written statement about the family moving from place to place to avoid being tracked down by [Gang 1] struck me as being highly misleading.

24. I indicated to [the applicant] that the circumstances of his family are potentially significant since he originally claimed and continued to claim that no-one in El Salvador can hide from the [Gang 1] if it threatens to kill someone: the gang has extensive, effective contacts and a fearsome reputation to uphold; in this case, he had breached his undertaking to the gang and it had threatened to dismember his immediate family, all of which some five years after the event, was still living at home going about its day-to-day life.

25. I put to [the applicant] that I had some difficulty accepting that he had changed from [one job] to [another job], and he said he had even undergone some security training to change jobs. I note that although he described being a [occupation] in his statements of claims, he did not make any such reference in his protection visa application form when asked to describe his last employment and duties in El Salvador.

26. I put to [the applicant] that I had difficulty believing his account given the lack of any harm to or avoidance activity by his family. [The applicant] stressed that the [Gang 1] has the power to find people and dismember them in revenge for being duped. He cited the example of an purported acquaintance to whom this had happened. He said this person’s fate had been the subject of newspaper stories. Reflecting on the quality of his evidence, I asked if his account, rather than being truthful, might have been composed of facts he read about in newspapers. In reply, he said that he was able to buy three months of delay after being pressed to comply with the [Gang 1]. He said he could not say no, or else he and his family would be killed. He said he used to see people outside his house, making hand gestures and crowding his space.

27. I asked [the applicant] why he transited through [Country 1] instead of claiming asylum there and he said the [Gang 1] has networks in [Country 1]. Independent evidence supports this.[1]

    [1] [Source deleted]

28. I put to [the applicant] on the basis of his own written description of his circumstances, that the harm he claimed to fear from gangs in El Salvador is harm feared and potentially faced by the whole population. He concurred in response, but added that the risk of harm that he faces is greater because of the particular job he used to perform and the gang’s perception at the time that he would be of use to them. He said that he was a target of the gang and that once it identifies a target, in this case, evidently his family and himself, the target faces a “death sentence”. He said [Gang 1] control all people in El Salvador where there are about twelve deaths a day. He said that when the gang fixes its sights on someone, that person will be killed. He said the government has tried to negotiate with the gangs but have been unsuccessful. He said [Gang 1] have people in the police force (as indicated in the untranslated news story he previously submitted). He said his children live in danger of being killed, but will be in more danger if he goes back to El Salvador because he will be traced to his family and they will all be killed.

29. I put to [the applicant] his seemed a strange claim, given that the gang had already threatened to kill his family if he tried to disappoint it, that he indeed purportedly disappointed the gang to the point of duping it, and that his family continues to reside in its own home going out to work and school from day to day.  In reply, [the applicant] said his family members all live constantly in danger and that he worries about them.

30. At the conclusion of the hearing, I invited [the applicant]’s adviser to make closing comments and remarks. Taking up the invitation, she said she was concerned that her client might be having difficulty articulating his claims. I have considered this suggestion but on the evidence before me I am not satisfied that [the applicant] was prevented from giving meaningful evidence by conditions beyond his control.

31. The adviser went on to say that gang repression and violence is a problem for everyone in El Salvador and that if the harm [the applicant] fears is not Convention-related then the Convention cannot cover everything. She said that if [the applicant] goes back to El Salvador, [Gang 1] will locate his family through him and kill them all, it being very common in El Salvador for gangs to dismember their enemies.

    Findings in relation to s.36(2)(a) of the Act

32. There are some minor inconsistencies in [the applicant]’s evidence that I consider to be relatively insignificant: for example, where he claims alternately that he was visited by the [Gang 1] gang in March and April of 2014, and where he claimed initially that the gang wanted him to help in the kidnapping of ministerial staffers and later claimed they wanted him to help them kidnap the Minister. Much more significant in my view is [the applicant]’s inconsistent evidence about efforts to relocate and protect his family: claims about the family moving from place to place after he left El Salvador were undermined by evidence to the effect that they moved twice and then moved back home before he left the country. In addition to that there is the discrepancy between the purported threat to kill and dismember his wife and children and the fact that five years later all of them are still living in their own home going about their day-to-day lives. Furthermore, [the applicant] made the somewhat absurd claim that the gang is somehow unable to locate his family members while he is outside of El Salvador but will find it easier to do so if he goes back there and visits them: this strikes me as absurd because [the applicant] said his family moved back to its own place before he left El Salvador and has resided there the whole time he has been in Australia; that house is evidently the house he claims they came to when they first coerced him.

33. In light of this I do not accept that [the applicant] was ever approached as claimed by a gang, let alone coerced into agreeing to help in a kidnap, or being able to stall the gang for three months while he plotted to flee El Salvador.

34. My having confidently found thus, it matters not whether [the applicant] changed duties from [one job to another], in light of the significant deficiencies in his evidence already discussed, I doubt that this part of his account is true either.

35. In addition to lacking credibility, [the applicant]’s claims about facing revenge from the kidnapping gang lack a nexus to the Convention as they are all about mercenary criminality and revenge for failing to facilitate it.

36. Furthermore, putting aside his unreliable claims about having been personally targeted, I observe that where [the applicant] claims that the danger of being harmed, coerced and controlled by gangs in El Salvador is faced by the general population, he is talking about a situation that does not involve Convention-related harm.[2] Convention-related harm requires relevant discrimination.

    [2] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [141] per Gummow J, Gleeson CJ and Hayne J agreeing.

37. On the evidence before me, I am not satisfied that [the applicant] faces a real chance of Convention-related persecution in El Salvador in the reasonably foreseeable future. His claimed fear of persecution is not well founded. He is not a refugee.

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

    Findings in relation to s.36(2)(aa) of the Act

39. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).

40. A person is entitled to protection under s.36(2)(aa) if there are 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.

41. Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

42. "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.

43. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

44. Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

1. 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.

2. I accept that [the applicant] is a citizen of El Salvador, and accordingly regard El Salvador is the “receiving country” in this case.

3. [The applicant] has identified “arbitrary deprivation of life”, “torture”, "cruel or inhuman treatment or punishment" and "degrading treatment or punishment” as the relevant harm in his case. As shown, these are all forms of significant harm for the purposes of s.36(2)(aa).

4. Generally, [the applicant]’s complementary protection claims are the same claims he has made against s.36(2)(a). Since those claims failed due to a lack of credibility, as reasoned above, they can no more succeed as complementary protection claims.

5. [The applicant] has made the additional claim, directly and through his adviser, to the effect that gang repression and violence is a problem for everyone in El Salvador. The problem with this claim is that it is caught by s.36(2B)(c), which states that “there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that … the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.”

6. Having considered all of the evidence before me, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that [the applicant] will suffer significant harm.

7. Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   Other findings

8. 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, he does not satisfy the criterion in s.36(2).

   DECISION

9. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Luke Hardy
   Member

   
   

   ATTACHMENT A

   RELEVANT LAW

10. 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.

11. 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).

12. 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.

13. 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’).

14. 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.