1611375 (Refugee)

[2019] AATA 6785

1611375 (Refugee) [2019] AATA 6785 (22 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1611375

COUNTRY OF REFERENCE:                   Honduras

MEMBER:Luke Hardy

DATE:22 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 22 October 2019 at 11:24am

CATCHWORDS
REFUGEE – protection visa – Honduras – actual or imputed political opinion – political party membership and activity – community work – attacks and threats by unknown parties – politically-motivated, gang-related or random criminal – credibility – inconsistent evidence – country information – political, gang, criminal and social conditions in home country –decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 225

MIMA v Respondents S152/2003 (2004) 222 CLR 1

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 on 19 July 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are from three generations of a family of citizens of Honduras.

3. The main applicant is Ms [A], a divorcee born in [date] in Tegucigalpa. The other two applicants with claims in this case are her adult son, Mr [B], born in [date], and her adult daughter, Ms [B], born in [date]. 

4. The other applicant is [Master C], born in [date], has at different times been presented as the youngest son of Ms [A] and as her grandson by another of her daughters, [Ms D], born in [date]. He is a Part D applicant who, having no claims of his own is relying on the outcome of the other three applicants’ claims in this matter.  

5. All four applicants evidently departed Honduras by air [in] October 2004. They were admitted that day into [Country] where they were permitted to remain [November] 2014. They evidently departed [Country] [the day after they arrived]. They entered Australia [two days later]. The carried [temporary] visas valid to [January] 2015, sponsored to visit here by another of Ms [A]’s daughters. MS [A] claims to have one daughter and one son residing in Australia, with [Ms D] being her only child still residing in Honduras.

6. The applicants lodged their protection visa application on 22 January 2015, the day before their [temporary] visas expired. The Minister’s delegate refused to grant the visas on 19 July 2016. They then sought review of that decision.

7. A signed document at f.177 of the Home Affairs Department’s file identifies Ms [A] not as the parent of [Master C] but is his guardian. Ms [A] presented to the Department a purported English translation of [Master C]’s (unseen) birth certificate, stating that his mother is her daughter, [Ms D]. I have not been able to find a Spanish original, but in any event the delegate, evidently misreading the English translation, found it, and it alone, to be satisfactory evidence of [Master C] being the son of Ms [A], which is evidently not true. Ms [A], in fact, submitted an English copy of an unseen 2014 notarial certificate, in Spanish, in which [Ms D] and her husband acknowledge that they are the natural parents of [Master C] and that they left him under the day-to-day “legal parental responsibilities” of Ms [A] since his infancy due to their own economic hardship.

8. Ms [A] and the other two substantive applicants appeared before the Tribunal on 20 and 30 August 2019 to give oral evidence and present arguments. They did not bring [Master C], explaining that he was young and had no claims of his own. I expressly said to Ms [A] at the time of adjourning the first hearing that [Master C] was invited to the resumed hearing; however, he did not attend. The applicants were accompanied by their adviser, a registered migration agent. The two hearings were facilitated by an interpreter in the Spanish-English medium.

9. At the commencement of the first hearing, I drew the attention of all present to the placement of a s.438 non-disclosure certificate at f.199 of the Department’s file identifying various internal working documents deemed by an officer of the Department to be non-disclosable for reasons of protecting “public interest”. Since all of the documents covered by the certificates are identified as internal working documents, the certificates covering them are invalid.[1]

   [1] MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1; 155 ALD 98

10. The documents include identity checklists, irrelevant to the Tribunal since the identity of the applicants is not in any doubt; a consent form for the use of a photograph of [Master C] for the purposes of checking his identity, again irrelevant to this review; and a case processing checklist that is also irrelevant to this review. A short discussion at the beginning of the hearing saw this issue explained and resolved to the satisfaction of the applicants and their adviser: the purportedly certified documents are in no way material to this decision and I have not been influenced by them in my decision-making.

    CRITERIA FOR A PROTECTION VISA

11. 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, he or she is either a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

12. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

13. A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

14. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

15. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (“the complementary protection criterion”). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

16. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The issues

17. The main issue in this case is whether, on accepted facts, any of the applicants are entitled to protection in Australia as refugees or, if not, on complementary protection grounds.

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

    Claims to the Department

19. Ms [A] claims to be the mother of six children: one in Honduras ([Ms D]); two who accompanied her to Australia (Ms [B] and Mr [B]); and three quite older children who migrated here permanently years earlier with her late ex-husband ([Ms E], [Mr F] and [Mr G]). She claims to have divorced in 1995.

20. Ms [A] claimed in her protection visa application form that she had been [Office bearer 1] of her local branch of the Partido Liberal (Liberal Party) in [Suburb 1], in Tegucigalpa, the Honduran capital, since 1990. She said she used to work in the local community lobbying for projects to assist women and children as well as local civic improvements like road paving, telephone connections and school upgrades. She said that there was a military coup in Honduras on 28 June 2009 causing the Liberal party to face conflict from without and within. She claimed she received death threats over the telephone in 2009 which stopped until January 2014. She said the callers told her to leave the area or else she and her family would be killed. She said her children were also active members of the Liberal Party. 

21. Ms [A] claimed in her protection visa application form that one evening in May 2014, there was a knock on the door answered by her daughter who encountered two men, one of them armed with a gun, who handed her, Ms [B], a letter “for me” and then left. She said there was another incident at night two weeks later when someone knocked at the door calling for her. She said no-one opened the door this time. She said that soon after there was a sound of shooting at her door. She said she called her son’s pastor who came and took them to his place for the night. She submitted scans of photographs to the department showing gunshot damage to a door.

22. Ms [A] told the Department that she did not know who these adversaries were. She said there are many different people from different parties who were jealous because the local community loved her work and that, for this reason, the men who had threatened her might have been from a rival party like Libre, Partido Nacional, the UD, the DC or the PAC. She did not suggest that any affiliation was divulged either in words from the men involved or in the letter they passed through her daughter. She said she did not report any of these disturbances to the police because she viewed the police in Honduras as corrupt and probably in cahoots with criminals, and because the Partido Liberal was not in power at the time of the incidents. She also said that the police were not able to protect “other party directors” in Honduras, and provided independent evidence of some Partido Nacional and Partido Liberal politicians having been killed in 2014.

23. Ms [A] also submitted scans of photographs showing her daughter Ms [B] and herself campaigning for the Partido Liberal in the 2013 Honduran national elections and also working as census volunteers. In several images, Ms [A] can be seen wearing a red shirt with the name “Perla” on it, in the company of red-shirted volunteers with “Perla” or “Yani” printed on their shirts. I take “Perla” to be Perla Simons Morales, who wrote a letter of support for Ms [A] and her family [in] December 2014, saying that Ms [A] “worked for our Liberal Party”, was very recognised within the party and also “worked in her neighbourhood for years”.

24. Ms [A] submitted other November 2014 letters from figures in the Partido Liberal briefly attesting to her having been “an active member of the Liberal Party” with “management positions  in the neighbourhood of [Suburb 1], district [number] in Comayagüela, municipality of Central District” in Tegucigalpa. One of these says Ms [A] was a “militant member and leader” known for her “political work”.

25. Ms [A] submitted a translated copy of a purported list of office bearers in the Partido Liberal’s local council body, purportedly current from 2014 to 2018, naming her as local [Office bearer 1], her daughter [Ms C] and son-in-law [Mr H] respectively as [Office bearer 2] and [Office bearer 3], her son Mr [B] as [Office bearer 4] and her daughter Ms [B] as [Office bearer 5]. Eleven other names appear in the list, of which five are evidently subordinates. This list can be found a f.28 of the Department’s file.

26. Mr [B] and Ms [B] also made brief claims in their Part C protection visa application forms, referring to their mother’s community service, to their having worked for the Partido Liberal under her direction and to the events of the first and second disturbances at their home, albeit without mentioning any dates. I note that, as Ms [A] had claimed, Ms [B] said that the visitors on the first occasion handed her the letter for her mother.

27. In a statement submitted to the Department on 23 January 2015, Ms [A] said that the delay in submitting this protection visa application had been due to difficulties getting appointments with both Legal Aid and [Organisation], particularly with Christmas and New Year intervening.

28. Ms [A] claimed in this statement that all her troubles stared in Honduras on 28 June 2009 when the President went into exile in Costa Rica following a golpe militar, or coup d’état. She said that while this was happening, she was working on elections in which President Zelaya, of the Partido Liberal, was seeking re-election. She said that Honduras spiralled out of control over the next few days, and submitted copies of newspaper articles in support of this argument. She said that a few days after the coup, she received death threats over the telephone from people demanding that she stop working for her “leaders”.

29. Ms [A] then claimed that in April 2014, rather than in May of that year as previously claimed, there were two disturbances at her home. On the first occasion, her daughter Ms [B] answered knocking at the door and found two men, one of them armed. She said the armed man put the gun to her daughter’s head and directly handed her, Ms [A], a letter “as I approached” demanding that she step down as local Partido Liberal [Office bearer 1] and leave the local community. In this version of events, the visitors did not hand the letter to her daughter to give to her. She said the family fled in fear to her other daughter’s apartment for the night.

30. Ms [A] claimed that on the second occasion some people outside her door called to her telling her they had been sent to ensure that she moved out of the district. She said the visitors told her they knew which university Ms [B] attended. She said they later fired bullets into her front door. She said her son’s pastor helped get the family out of the house for good. She said her daughter Ms [B] did not go back to university and her grandson [Master C] did not go back to school. She provided a short letter of support from that pastor who said, very briefly, the family had sought his help “due to the political problems which they were suffering”.

31. Ms [A] appeared no more able to suggest which group was behind the visitors to her home in this longer statement than she had been in her original protection visa application form.

32. Ms [A] claimed that her children used to help her with census activities, which the government ran for the purposes of issuing ID cards for access to government services. She said that the Partido Liberal used to help her with funds for social activities in the community such as piñatas and the like.

33. Ms [A] said she and the children were lucky to be out of Honduras. She said that only [Ms D] remained there. She said that she treats [Master C] like a son.

34. The Minister’s delegate invited the applicants to an interview but they did not respond to the invitation and did not attend.

    Independent country information

35. DFAT does not produce a Country Information Report on Honduras. I note that Australia does not have a mission in Honduras, and relies in the absence of one on its Embassy in Mexico. Neither the DFAT Honduras Country Brief nor the DFAT Honduras Fact Sheet provide detailed relevant information. The DFAT Travel Advice Service advises a high degree of caution to travellers contemplating visits to the country, on account of poor state protection there in the face of violent drug gang rivalry.[2]

    [2]

36. The following timeline comes from BBC News;[3]  I have edited it for relevance to the present application:

    [3] “Honduras profile – Timeline,” BBC News, 16 May 2018,

    1990 January - Rafael Callejas [of thePartido Nacional] sworn in as president; proceeds to introduce neo-liberal economic reforms and austerity measures…  

    1993 November - Liberal Party candidate and veteran rights activist Carlos Reina elected president. Reina pledges to reform judicial system and limit power of armed forces… 

    1997 - Carlos Flores of the Liberal Party elected president; pledges to restructure armed forces.

    1998 May - Control of police transferred from military to civilian authorities, but reports of rights abuses continue…

    1999 - Armed forces placed under civilian control… 

    2002 January - Ricardo Maduro [of the Partido Nacional] inaugurated as president. He says armed forces will play greater role in fighting crime. Declaration is greeted with dismay at home and abroad…

    2004 December - Suspected gang members massacre 28 bus passengers in the northern city of Chamalecon…

    2005 December - Liberal Party's Manuel Zelaya is declared the winner of presidential elections after his ruling party rival concedes defeat...

    2007 May - President Zelaya orders all the country's radio and TV stations to carry government propaganda for two hours a day for 10 days to counteract what he says is a campaign of misinformation…

    2009 June - President Manuel Zelaya is removed by the military and forced into exile. Coup is widely condemned. Organisation of American States (OAS) suspends Honduras. 

    2009 September - Mr Zelaya makes a surprise return to Honduras, taking refuge in the Brazilian embassy in Tegucigalpa.

    2009 November - Porfirio "Pepe" Lobo Sosa of the conservative National Party wins presidential election.

    2009 December - Congress rejects proposal that Mr Zelaya be allowed to return to office.

    2010 January - Mr Zelaya goes into exile in the Dominican Republic. Supreme Court dismisses charges against six military commanders who expelled Mr Zelaya from the country in June 2009 …

    2010 February - Government says it has restored diplomatic ties with 29 countries following its isolation after the coup.

    2010 March - US resumes aid programme suspended after the coup, saying President Porfirio Lobo was democratically elected.

    2010 May - "Truth commission" begins investigating Mr Zelaya's removal from office in 2009, and concludes it was a coup.

    2010 November - International Criminal Court investigates allegations of human rights abuses during the 2009 coup …

    2011 May - Mr Zelaya returns from exile … 

    2012 … The two most notorious street gangs in Honduras - the Mara Salvatrucha and the Mara Dieciocho - agree a truce, promising to end the violence which has claimed tens of thousands of lives…

    2014 January - Juan Orlando Hernandez [of the Partido Nacional] takes over as president [after elections in 2013] …

    2015 April - Congress passes a law offering special protection to journalists, human rights activists and judicial workers with the establishment of a panel under the justice to investigate threats.

    2015 April - The Supreme Court nullifies a law that prohibited presidents from serving more than one term.

    2015 June - Tens of thousands of Hondurans march in the capital, demanding the resignation of President Juan Orlando Hernandez over opposition claims he received millions of dollars from the country's public health system for his 2013 election campaign.

    2016 February - An international mission aimed at tackling widespread corruption in Honduras is installed with a four-year mandate.

    2016 March - Indigenous leader and respected environmental rights activist Berta Caceres is killed by gunmen at her home in Esperanza, some 200 km from the capital Tegucigalpa.

    2016 March - Former President Rafael Callejas pleads guilty to two counts of bribery and fraud related to the FIFA corruption scandal.

    2017 November - Disputed presidential election. Incumbent Juan Orlando Hernandez is declared winner [for the second time].

    [All parenthesised interpolations in bold above are my own.]

1. I note that, on 24 March 2009, President Zelaya called for a preliminary poll to be held on 28 June 2009 to gauge popular support for the idea of including the Constituent Assembly question in the November 2009 election. In May he issued an executive decree for the National Statistical Institute to hold the poll by 28 June 2009.[4] The question to be asked in this preliminary poll was:

   ¿Está usted de acuerdo que en las elecciones generales de noviembre se instale una urna para convocar a una Asamblea Constituyente que apruebe una nueva Constitución Política?

   [Do you agree that in the general elections of November 2009 there be included a fourth ballot in which the people decide whether to convoke a National Constituent Assembly?[5]

   [4]

   [5]

2. On 23 June 2009, the Honduran Congress passed a law forbidding the holding of polls, referenda or plebiscites less than 180 days before a scheduled general election, and since the next elections were set for 29 November 2009 this made a 28 June 2009 poll illegal. Zelaya rejected the applicability of the new law to this particular instance as the bill was passed after the poll had already been scheduled.[6]

   [6]

3. The following article[7] from The New York Times provides more detail on how the 2009 coup was a response to President Zelaya’s apparently unconstitutional bid for voter endorsement, through referendum, of his desire to stand for a second term:

   [7] “Honduran President Is Ousted in Coup,” The New York Times, 28 June 2009,

   … In the first military coup in Central America since the end of the cold war, soldiers stormed the presidential palace in the capital, Tegucigalpa, early in the morning, disarming the presidential guard, waking Mr. Zelaya and putting him on a plane to Costa Rica.

   Mr. Zelaya, a leftist aligned with President Hugo Chávez of Venezuela, angrily denounced the coup as illegal. “I am the president of Honduras,” he insisted at the airport in San José, Costa Rica, still wearing his pajamas [sic].

   Later Sunday the Honduran Congress voted him out of office, replacing him with the president of Congress, Roberto Micheletti [also of the Partido Liberal].

   The military offered no public explanation for its actions, but the Supreme Court issued a statement saying that the military had acted to defend the law against “those who had publicly spoken out and acted against the Constitution’s provisions.” …

   The Organization of American States issued a statement calling for Mr. Zelaya’s return and said it would not recognize any other government ...

   The arrest of Mr. Zelaya was the culmination of a battle that had been simmering for weeks over a referendum, which was to have taken place Sunday, that he hoped would lead to a revision of the Constitution. Critics said it was part of an illegal attempt by Mr. Zelaya to defy the Constitution’s limit of a single four-year term for the president.

   Early this month, the Supreme Court agreed, declaring the referendum unconstitutional, and Congress followed suit last week. In the last few weeks, supporters and opponents of the president have held competing demonstrations. On Thursday, Mr. Zelaya led a group of protesters to an Air Force base and seized the ballots, which the prosecutor’s office and the electoral tribunal had ordered confiscated.

   When the army refused to help organize the vote, he fired the armed forces commander, Gen. Romeo Vásquez. The Supreme Court ruled the firing illegal and reinstated General Vásquez…

   In Costa Rica, Mr. Zelaya told the Venezuelan channel Telesur that he had been awoken by gunshots. Masked soldiers took his cellphone, shoved him into a van and took him to an air force base, where he was put on a plane. He said he did not know that he was being taken to Costa Rica until he landed at the airport in San José…

4. Meanwhile, popular opposition to the 2009 coup coalesced soon after Zelaya’s ousting into the Frente Nacional de Resistencia Popular, or National Front for Popular Resistance (FNRP):

   … According to the Political Handbook of the World (PHW), the National Popular Resistance Front (Frente Nacional de Resistencia Popular, FNRP) was created by a "number of protest groups in the wake of the 2009 ouster of President Zelaya" ... The US Congressional Research Service (CRS) similarly states that the FNRP is an "umbrella group of those who were opposed to Zelaya's removal that has become a broad leftwing movement of Honduras" ... According to CRS, Zelaya was ousted on 28 June 2009 ...

   The FNRP website indicates that the organization consists of popular movements and social organizations, among others ... The Political Handbook of the World similarly notes that the FNRP consists of "workers' organizations and other grassroots groups, all with the aim of promoting a national constituent assembly to rewrite the constitution and securing the return of former president Zelaya" ... Similarly, CRS states that the FNRP "includes labour unions, worker and campesino organizations, human rights advocates, and other civil society groups" ... According to CRS, the FNRP is "committed to reforming the Honduran constitution and pushing for greater rights for traditionally excluded sectors of the Honduran Population" ... According to the website of the FNRP,

   [t]he FNRP is a political, social, anti-capitalist, anti-neoliberal, anti-oligarchic, anti-imperialist, anti-patriarchal and anti-racist wide-ranging organization that aims to transform social, political, economic, educational and cultural structures ... and create a system of social justice that guarantees welfare, freedom and dignity of everyone...

   The Political Handbook of the World lists the following events related to the FNRP:

   In 2009, Carlos Reyes, one of the FNRP leaders was an independent candidate in the 2009 presidential elections, however he dropped out in "protest over failed efforts to reinstate Zelaya;"

   FNRP organized a number of protests after the elections of Porfirio Lobo in 2009. Without providing details, the Political Handbook of the World noted that violence was reported against members of the FNRP during which more than 30 of its members were killed. Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response;

   In May 2011, the government authorities agreed to recognize the FNRP as a "legitimate political movement" as part of the agreement that returned Zelaya to the country during the same time;

   In November 2011, the FNRP established the Freedom and Refoundation party (Libertad y Refundación - Libre) ...

   Agencia EFE also reports that Freedom Refoundation party [translation] "emerged" from the FNRP in 2011 ... Freedom House names Zelaya as the leader of the FNRP and indicates that in May 2011 an agreement was signed by Zelaya and [the President Porfirio] Lobo, which guaranteed Zelaya's freedom upon his return to Honduras, as well as allowing the FNRP to register as a political party ...

   The Political Handbook of the World lists the following persons as leaders of the Freedom and Refoundation party: José Manuel Zelaya Rosales (Coordinator General and Former President of the Republic), Juan Barahona (Deputy National Coordinator), Rafael Alegría, Bartolo Fuentes, Carlos Reyes and Edgardo Casaña (Secretary General) ... Media sources report that in January 2014 Manuel Zelaya renounced FNRP leadership … and Freedom Refoundation party leadership ... La Prensa, a Honduran newspaper, indicated that there was no announcement on who will be replacing Zelaya ... However, La Tribuna, a Tegucigalpa-based newspaper, reports that, according to Zelaya, Juan Barahona will be the leader of the FNRP…[8]

   [8] Canada: Immigration and Refugee Board of Canada, Honduras: The National Popular Resistance Front (Frente Nacional de Resistencia Popular, FNRP), including history, structure, objectives, and leadership; information on delegates, including number, identification, and election procedures; information on membership registration and membership cards (2009-February 2014), 13 February 2014, HND104766.E,   

5. The FNRP, created in 2009, thus became established as the party known as Libre in late 2011. It proffered Manuel Zelaya’s wife, Xiomara Castro de Zelaya, as Presidential candidate in 2013[9] but, as noted, she lost to Juan Orlando Hernández of the Partido Nacional. The Partido Liberal’s candidate that year was Mauricio Villeda, “a conservative member of the Liberal Party, struggled to 20.3% of votes—indicating the decline of the once powerful Liberals.”[10] Villeda came third in the race after Castro de Zelaya, Libre having reportedly “confirmed a split in the Liberal Party, since most of its members were former Liberals.”[11] At least 18 Libre party organizers were slain in the run-up to the 2013 elections and, whereas officials and activists from other parties were also attacked or killed during the election, Libre candidates and activists reportedly suffered more attacks than all other parties combined.”[12]

   [9] “Honduras elections: leftist party challenges right's grip on power,” The Guardian, 23 November 2013,

   [10] “Presidential re-election and party system change on the ballot in Honduras on Sunday,” Global Americans, 22 November 2017,

   [11] Ibid.

   [12] “A crisis of legitimacy continues in Honduras,” America the Jesuit Review, 13 February 2018,

6. In the 2017 general elections, Hernández won a controversial second term, the Supreme Court, as mentioned above, having lifted the ban on individuals serving second Presidential terms back in 2015. There was deep international observers’ concern about polling irregularities. Hernández won just under 43% of the popular vote, winning by only 50,000 votes nationwide. The candidate representing an alliance of Libre and a centre-left party known as PINU-SD came in second with about 41% of the popular vote, and the Partido Liberal candidate came in third with just under 15% of the vote. There were similar results in the Congressional elections. Suffice it to say, on these figures, that the Partido Liberal has haemorrhaged supporters to Libre over the years and appears to be a shadow of its former self in what used to be a pattern of two-party exchanges of power with the Partido Nacional.[13]

   [13] “In Honduras, Calls Rise for New Presidential Elections,” The New Yorker, 19 December 2017, “Call for fresh Honduras election after President Juan Orlando Hernández wins,” The Guardian, 18 December 2013, “What Honduras’ election crisis reveals about Latin America’s broader democracy challenges,” Brookings, 4 December 2017, “Dirty Elections in Honduras, With Washington’s Blessing,” Jacobin, 8 January 2018,

7. Several photographs in this case show Ms [A] and Ms [B] engaging in census activities alongside various persons in red shirts featuring the name “Yani”. I note that Yani Rosenthal was served as a minister  “in the cabinet of former Honduran President Manuel Zelaya in 2006 and 2007, [and] was a member of the nation’s legislature between 2010 and 2014, and ran unsuccessfully for president in Partido Liberal candidate primaries in 2009 and 2013. He was sentenced to three years in prison in a Florida jail in the USA in after he pleaded guilty to a US money laundering charge.[14]

   [14] “Honduran politician sentenced to three years in U.S. for money laundering,” Reuters, 16 December 2017,

8. Relevant to this case, I have consulted recent independent human rights reporting on Honduras.

9. The US Department of State provided the following summary of conditions in Honduras in its 2019 reporting:

   Civilian authorities at times did not maintain effective control over the security forces.

   Human rights issues included reports of arbitrary and unlawful killings; complaints of torture; harsh and life-threatening prison conditions; arbitrary arrest or detention; killings of and threats to media members by criminal elements; criminalization of libel, although no cases were reported; widespread government corruption; and threats and violence against indigenous, Afro-descendent communities and lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons.

   The government took steps to prosecute and punish officials who committed abuses. Impunity existed in many cases, however, as evidenced by lengthy judicial processes, few convictions of perpetrators, and failures to prosecute intellectual authors of crimes. Organized criminal elements, including local and transnational gangs and narcotics traffickers, were significant perpetrators of violent crimes and committed acts of homicide, extortion, kidnapping, torture, human trafficking, intimidation, and other threats and violence directed against human rights defenders, judicial authorities, lawyers, the business community, journalists, bloggers, women, and members of vulnerable populations.[15]

   [15] US Department of State, 2018 Country Reports on Human Rights Practices: Honduras, 13 March 2019

10. In its World Report 2018, Human Rights Watch observed as follows:[16]

    [16] HRW, “Honduras Events of 2018” in World Report 2019,

    Violent crime is rampant in Honduras. Despite a downward trend in recent years, the murder rate remains among the highest in the world. A crackdown on protests following the November 2017 national elections resulted in the death of at least 22 civilians and one police officer, and in more than 1,300 detentions. Journalists, environmental activists, and lesbian, gay, bisexual, and transgender (LGBT) individuals are vulnerable to violence. Efforts to reform the institutions responsible for providing public security have made little progress. Marred by corruption and abuse, the judiciary and police remain largely ineffective. Impunity for crime and human rights abuses is the norm.

    The Mission to Support the Fight against Corruption and Impunity in Honduras (MACCIH), established in 2016 through an agreement between the government and the Organization of American States (OAS), advanced investigations in a small number of cases regarding corruption by senior officials…

    In January 2018, President Juan Orlando Hernández announced that the Special Commission for Police Reform Restructuring would extend its mandate through January 2019. As of April 2018, more than 5,000 of the more than 10,000 police officers evaluated by the commission had been removed, and in June, the commission presented the Attorney General’s Office with more than 1,300 case files of removed officers for further investigation into alleged criminal activities. However, the commission has been criticized for its opacity and came under fire in October 2018, when an officer whom the commission had promoted to deputy police commissioner, and who later became head of police, was arrested for illicit association and money laundering.

    Eight former police officers faced prosecution or were convicted in the United States for involvement in organized crime…

    Following reports from both international observers and national actors of irregularities in the November 2017 national elections, protests erupted and authorities decreed a state of emergency, which the Office of the UN High Commissioner on Human Rights (OHCHR) and the Inter-American Commission on Human Rights (IACHR) criticized for its lack of compliance with international human rights standards.

    According to the UN High Commissioner’s Office, at least 22 civilians were killed during the protests, of whom at least 16 were shot by security forces. A police officer was also killed after being hit by a Molotov cocktail filled with shrapnel. More than 1,300 people were detained, many of them in military detention centers. The UN High Commissioner’s Office documented “credible and consistent testimonies” that detainees had been subject to ill-treatment and said that security forces had indiscriminately opened fire on protesters on several occasions…

    Journalists are targets of threats and violence. During the protests following Honduras’ elections, discussed above, the OHCHR documented physical attacks on at least six journalists, threats against journalists who were covering the protests, and the interruption of broadcasts critical of the government…

    Lawyers, human rights defenders, and environmental activists suffer threats, attacks, and killings. In 2016, CONADEH registered 16 violent attacks against lawyers, including 13 killings. The IACHR described Honduras in August 2016 as one of the “most hostile and dangerous countries for human rights defenders” in the Americas.

    At time of writing, nine men had been charged with the murder in March 2016 of environmental and indigenous rights activist Berta Cáceres, including an army major and the president, as well as the former environment manager of Desarrollo Energético S.A. (DESA), the company behind the Agua Zarca dam project that Cáceres was campaigning against at the time of her assassination. When the trial against eight of the suspects started in September 2018, the Cáceres family lawyers filed legal appeals questioning the proceedings and seeking a new panel of judges. In October, the existing panel started the trial while the appeals remained pending.

    Local activists criticized the Mechanism for the Protection of Journalists, Human Rights Defenders and Operators of Justice, created in 2015, for lacking uniform criteria in awarding protection measures. Activists also claimed the measures are not always effective…

    The Mission to Support the Fight against Corruption and Impunity in Honduras (MACCIH), has been active in the country since April 2016. It has assisted in the creation of an anti-corruption jurisdiction in the country and in the approval of the Law on Clean Politics, which aims to prevent organized crime from contributing to political campaigns and hold parties and candidates accountable for financing their campaigns illegally. It also contributed to several anti-corruption investigations, together with the Attorney General’s Office…

    In its Report 2017/2018, Amnesty International observed as follows:[17]

    The level of insecurity and violence remained high. Widespread impunity continued to undermine public trust in the authorities and the justice system. Protests in the aftermath of the presidential election were brutally repressed by security forces. Honduras remained one of the most dangerous countries in the Americas region for human rights defenders, especially for those working to protect land, territory and the environment. The government announced the creation of a Ministry for Human Rights and Justice, to become operational in 2018 ...

    Human rights defenders, particularly environmental and land activists, continued to be at risk of human rights abuses. They were subjected to smear campaigns by both state and non-state actors to discredit their work, and were regularly targeted with intimidation, threats, and attacks. In June, three members of the Civic Council of Popular and Indigenous Organizations of Honduras (COPINH) were attacked by armed assailants while they were in a car, returning from a meeting. Local NGOs said that the justice system continued to be misused to harass and discourage human rights defenders. Unnecessary and excessive use of force by security forces during peaceful protests was also reported.

    The vast majority of attacks registered against human rights defenders remained unpunished, as a result of multiple obstacles hindering investigations and trials. There was little progress in the investigation into the killing in March 2016 of Berta Cáceres, the Indigenous environmental defender and co-founder of COPINH. The public hearings of eight suspects detained in relation to the case were postponed on multiple occasions. Independent experts revealed a lack of due diligence in the investigations, including a lack of prosecution of other individuals potentially involved in the crime. There was no information about any progress made by the Public Prosecutor in identifying those responsible for planning her killing.

    Although some progress was made to protect human rights defenders through the National Mechanism to Protect Human Rights Defenders, Journalists, Social Commentators and Justice Officials, efforts to ensure their comprehensive protection remained insufficient.

    New provisions of the Criminal Code on terrorism and related criminal offences approved by Congress in February and September were defined in an overly broad and vague manner, contrary to the principle of legality. The provisions could lead to the arbitrary and inadequate application of the Code against peaceful protesters and human rights defenders, which could further criminalize their work and obstruct social movements ...

    Women, girls and LGBTI people continued to face high levels of gender-related violence. Between January and October, 236 violent deaths of women were registered by the Centre for Women’s Rights. According to the Lesbian Cattrachas Network, killings of LGBTI people also increased, with a total of 35 people killed. Impunity remained high in these cases, as authorities lacked sufficient capacity and resources to investigate, prosecute and punish those responsible.

    [17] AI, “Honduras 2017/2018” in Amnesty International Report 2017/2018,

1. Since none of the three sources above go into much if any detail about the behaviour of criminal gangs in Honduras, I consulted other sources. The Guardian has provided this short summary in a recent 2019 photo-essay:[18]

   Honduras’s homicide rate has fallen significantly in recent years, but the country still has one of the highest murder rates in the world. The fall can be attributed to the initiatives of police and military forces against drug smugglers and gangs. In a country of 8 million people, there are an estimated 7,000-10,000 street gang members [.]

   [18] “Counting the cost of Honduran crime – in pictures,” The Guardian, 14 January 2019,

2. Much of the reporting I have seen confirms that Honduras’s gang culture is concentrated in the country’s north, in and around the city of San Pedro Sula[19]. However, there are other sources that suggest the capital Tegucigalpa being affected by the alternate presence of the rival gangs or maras known as MS-13 and Barrio 18 in some urban and sporadic suburban pockets of the capital, although [Suburb 1], immediately adjacent to the city’s Toncontin International airport, lying more towards the edge of metropolitan Tegucigalpa, appears not to be listed as gang-ridden.[20]

   [19] Ibid.; “Inside Gang Territory In Honduras: ‘Either They Kill Us or We Kill Them’,” The New York Times, 13 May 2019,

   [20] “Gang Presence in Tegucigalpa,” InSight Crime, 16 April 2019,

3. At least in early 2012 maras did have a presence in the poorer barrios of Comayagüela district,  as around half of Tegucigalpa is known:

   1. Areas of Operation

   Sources indicate that both Mara Salvatrucha (MS-13) and Mara 18 (M-18) [also known as the 18th Street gang] operate mostly in urban areas of Honduras ... In correspondence with the Research Directorate, Lirio Gutiérrez Rivera, a post-doctoral researcher who specializes in gangs in Honduras at the Institute for Latin American Studies at Freie Universität in Berlin, indicated that maras are most active in the urban areas of Tegucigalpa, including the district of Comayaguela, and in the city and suburbs of San Pedro Sula, including the districts of Chamelecón, Choloma, El Roble, Villanueva and Cofradía ... She explained that maras tend to take root in marginalized neighbourhoods or slums and industrial areas that host the "maquilas," …, factories that manufacture and export products to other countries ...

   In addition, Elyse Wilkinson, writing in the Maine Law Review, points out that the MS-13 and the M-18 are also present in rural areas and even "dominate in many neighbourhoods" where the government is weak ... Thus, she says, the gang problem there is "worse" since the government is not able to provide "appropriate protection" from the gangs ... Gutiérrez Rivera says that the maras also operate in border areas, especially in the department of Ocotepeque, which borders Guatemala ...

   2. Territoriality

   According to an article published by Agence France-Presse (AFP), the maras have divided Honduran cities into [translation] "zones or 'territories'" that are then disputed between M-18 and MS-13 (12 June 2011). Gutiérrez Rivera, writing in the Bulletin of Latin American Research in 2010, says that, in disputes over territory (also known as rifa del barrio), gangs "exercise and test territorial authority upon others," usually with violence, and retaliate to perceived challenges to their authority ... She explained that these territorial disputes are largely associated with the collection of [translation] "resources," such as the "'war tax'" on public transportation providers, kidnappings, threats and theft … from individuals and businesses ... For example, Juan J. Fogelbach, a researcher at the US Office of Refugee, Asylum, and International Operations, indicates that, in recent years, there has been an increase in the burning of buses and the killing of bus drivers ... He notes that the violence has been reported to be the means by which gangs "compel bus owners to make extortion payments" ... Additionally, Gutiérrez Rivera points out that gangs use violence to "impose local order" or "'street level politics'" ...

   Gutiérrez Rivera also indicates that, with amendments in 2003 to the Penal Code, also known as the "Anti-gang Law," to penalize illicit associations and a national security policy to address gang violence, gang members have modified both their appearance and their "territorial strategies in order to reduce their visibility in the streets" ... In spite of covering their tattoos, dressing casually and changing their movement, she explains that the gangs continue to exercise "strong influence" over neighbourhoods ... She adds that the maras have also become more violent in response to the security policies ... La Tribuna, a Tegucigalpa-based newspaper, quotes the coordinator of the Crimes Against Property Unit (Unidad de los Delitos contra la Propiedad) as saying that maras used to be easily recognizable because of their tattoos and clothing, but that they have [translation] "evolved" to become more "subtle" in their activities, using cell phones to extort money from people instead of the streets ...

   3. Structure and Operation

   According to Gutiérrez Rivera, who also spoke to the Research Directorate in a telephone interview, maras are divided into cliques or clicas of 15 to 20 members each ... In some cases, bigger cliques may have close to 30 members ... Cliques can have up to 100 members in Honduran prisons …, and, according to AFP, there are respectively 136 and 150 members of MS-13 and M-18 imprisoned in the country's main penitentiary ... Gutiérrez Rivera also explained that cliques are [translation] "highly hierarchical," and that their leaders, who are called primera palabra (first word), make all the decisions with the advice of three or four other members of the clique ... In an article published in The Counter Terrorist magazine, a Miami-based Security Solutions International publication on terrorism and counterterrorism-related issues …, John P. Sullivan and Samuel Logan explain that the primera palabra functions like a commander and that he shares leadership responsibilities with a segunda palabra (second word) ... The authors one of whom is a senior research fellow with the Center for the Advanced Studies of Terrorism (CAST) in Los Angeles, and the other a Latin American analyst and investigative journalist — add that the segunda palabra operates as an "executive officer" and, if from a "large, powerful" clique, extends his powers of influence over other smaller cliques ...

   Gutiérrez Rivera emphasizes, however, that the M-18 is more hierarchical and organized than its rival, the MS-13 ... Several sources indicate that the maras do not have a central authority or leaders … and that the cliques are autonomous ...

   4. Domestic and Transnational Alliances

   4.1 Domestic Alliances

   According to Gutiérrez Rivera, the Anti-gang Law stimulated mobility and cooperation among the cliques within their respective maras ... Mobility to "other barrios, cities and, eventually, other countries" has strengthened the "sense of belonging to the gang" …, which, in turn, has translated into a willingness to support other cliques in the same mara with manpower, weapons and resources ... She also added that, after the introduction of the anti-gang legislation, the maras became more cautious about allying themselves with other gangs such as the Batos Locos, with which they had alliances in the past ... She noted [in 2012] that maras also became more "selective" in their recruitment efforts ...

   4.2 Transnational Alliances

   Sullivan and Logan write that the deportation of gang members from the United States to Central America has resulted in the creation of a "networked criminal diaspora" of transnational cliques ... According to information provided by the US Department of Homeland Security, 25,635 persons were deported to Honduras in 2010; 41.5 percent of these deportations were based on criminal grounds ... Sullivan and foreign policy analyst Adam Elkus describe both MS-13 and M-18 as "third generation" gangs with "internationalized, networked, and complicated structures" in an article published on openDemocracy …, a non-profit, online publisher of news and opinion articles on world issues ...

   A US Government Accountability Office report to Congress indicates that the maras have established transnational alliances with drug trafficking organizations in the US ... According to the US Congressional Research Service, "both gangs, but particularly the MS-13, have expanded geographically and become more organized and sophisticated" ... For example, El Universal, a Mexico City-based newspaper, quotes the Assistant Attorney General of Honduras as saying that Honduran maras are [translation] "seeking to negotiate directly with Mexican and Colombian drug cartels" ... The Assistant Attorney General also indicated that the maras have "initiated a war to sieze [sic] control and operation of drug trafficking in Honduras" ... Additionally, LatinNews reports that the Mexican gangs Los Zetas, the Sinaloa gang and La Familia Michoacana are operating in Honduras ... According to the US Congressional Research Service, Mexican drug trafficking organizations are contracting members of MS-13 to carry out "revenge killings" ... Sources indicate that Honduras is used as a transit route for drugs heading to North America ...

   The online Tucson Sentinel reports that members of MS-13 from Guatemala, El Salvador and Honduras, alongside the Zetas, have been working together to kidnap and intimidate Central American migrants in southern Mexico en route to the United States ... According to a person who works at a shelter for migrants in Ixtepec, Mexico, maras work as spotters for kidnappers and as gunmen alongside Zetas commandos ... Corroborating information on maras from Honduras operating along the southern Mexican border could not be obtained by the Research Directorate within the time constraints of this Response.

   5. Violence Between Gangs

   The media reports that Honduras is the most violent country in Central America … and one of the most violent in the world ... Among the causes of the country's high homicide rate is conflicts between members of the maras, including the [translation] "settling of scores" (AFP 23 Mar. 2010). AFP quotes a specialist at the Central American Integration System (Sistema de Integración Centroamericana) as saying that maras are using women as an [translation] "'object of exchange'" in acts of vengeance ... A member of a mara reportedly targets and kills women, such as wives or mothers, related to a gang member with whom he has a problem ... In addition, the London-based Observer quotes a member of Oxfam Honduras as saying that women are victims of "'vengeance attacks'" by other gang members who want to "'send a message to male family members'" and by police officers retaliating for gang attacks on fellow officers ... [21]

   [21] Canada: Immigration and Refugee Board of Canada, Honduras: Areas of operation of Mara Salvatrucha (MS-13) and Mara 18 (M-18) (also known as the 18th Street gang) in Honduras; domestic and transnational networks; nature of any alliances and whether the maras dispute territory; violence perpetrated by gang members against other gang members (2009-December 2011), 3 February 2012, HND103940.E, available at:

4. [Suburb 1] is a subdivision of Comayagüela. However, that is not to say that gangs have ever held sway in [Suburb 1] itself, for, according to the evidence from the applicants, supported by independent evidence, the government and its services have been and continue to be strong in [Suburb 1], perhaps due to the proximity of the international airport, which means it is evidently not a marginalised neighbourhood. In any event, the following report[22] discusses the recent consolidation of efforts to combat extortion and gang-related crime in Honduras and some of its early results:

   [22] “Honduras Transforms Unit to Counter Maras and Gangs: Authorities have more legal power to counter crime,” Diálogo: Digital Military Magazine, Forum of the Americas, 20 September 2018, 

   The National Anti-extortion Force, created in 2013, became the National Anti-mara and Gang Force (FNAMP, in Spanish) widening its field of action to allow for a frontal fight against crime in Honduras. The new unit officially began operations July 12, 2018, yet is still in development. With this new designation, the force has more authority and legal capacity to combat all criminal activities maras and gangs carry out.

   “The change was made to leverage capabilities and address the issue as a whole,” Honduran Army Lieutenant Colonel Amílcar Hernández, FNAMP director, told Diálogo. “Our mission is to counter every crime these groups perpetrate. In addition to extortion, maras and gangs are involved in narcotrafficking, money laundering, and other related crimes, such as murder, vehicle theft, weapons trafficking, and even terrorism.”

   The transformation entails an increase in military personnel, logistics resources, and training. Authorities expect to integrate the new elements in September 2018. FNAMP will also receive more logistics support, from vehicles to new technological equipment. According to Lt. Col. Hernández, Honduras will arrange for future training with the U.S. Federal Bureau of Investigation.

   First achievements

   Amidst these changes, the new force is already getting results. “In the first month [July], we’re talking about seizures, secured housing, recovered vehicles, and savings of $330,000 that weren’t paid for extortion,” Norma Moreno, FNAMP spokesperson, told Diálogo. “In addition, authorities seized 50 packages of drugs, 32 firearms, and detained 122 people.”

   The new force has teams specialized in different areas. Some elements focus on research and analysis. Other units conduct follow-ups or investigations, while a third team operates from within, infiltrated in gangs.

   “The [first FNAMP] operation was conducted simultaneously in the five regions where FNAMP operates: Tegucigalpa in the center, San Pedro Sula in the northwest, and the towns of La Ceiba, Choluteca, and Comayagua, where there’s a larger gang presence,” Moreno said. According to FNAMP, these five areas register the highest criminal activity on account of being large population centers.

   To inaugurate its creation, FNAMP displayed 20 captured gang members to the public, including former police officer Sergio Tercero, alias El Patrón, leader of the Combo Que No Se Deja criminal organization. Tercero was on the country’s list of the 20 most wanted criminals. His group is one of several that operate in Honduras. Others include the Mara Salvatrucha 13, Benjamines, Chirizos, Barrio 18, Olanchanos, Copanecos, Cholos, Banda del Comandante, and Escarfas—from the English Scarface.

   According to Moreno, the Escarfas are 95 percent dismantled. With the new arrests of August 2018, FNAMP totaled 30 captured leaders of different criminal groups. “In September, operations with different security agents will intensify to liberate communities threatened by maras and gangs, which have many citizens on their knees,” Moreno said.

   Credibility and trust

   “About 6,000 people are members of these organizations that used to operate more easily. Now there are obstacles that didn’t exist before,” said Lt. Col. Hernández. “Their structures were weakened; we are liberating areas and saving them from maras and gangs’ criminal acts.”

   In Honduras, members of criminal groups now face more severe charges. The Criminal Code, modified in September 2017, states that unlawful association carries a 20-to-30-year prison sentence. The time can be extended by two thirds for gang leaders. The new law punishes terrorists with a 50-year sentence and considers million-dollar fines for narcotrafficking. A kidnapper who kills their victim faces a life sentence.

   The new joint interagency body consists of 500 members of the National Directorate of Investigation and Intelligence, the Armed Forces, the National Police, and the Public Prosecutor’s Office. “Our interinstitutional integration generates more trust among people,” Lt. Col. Hernández said.

   Coordinated work transcends Honduras. In the border areas, national authorities are in constant communication with counterparts in neighboring countries to prevent gang members from crossing borders and avoid being captured.

   “A real way to gain credibility and trust is through results. When people see positive results, citizens appreciate it and help us by providing information. There’s no other way,” Lt. Col. Hernández concluded.

   Material submitted to the Tribunal prior to the hearing

5. The Tribunal file at ff.47 to 74, 82 to 111, 115 to 167, 171 to 205 and 231 to 244 contains numerous submissions from the applicants.

6. In summary, these submissions include:

   ·independent reporting on the killing of political figures in Honduras and on the violent and extortionate behaviour of criminal gangs, or maras, in Honduras;

   ·independent human rights monitoring reports relating to Honduras;

   ·letters confirming local affiliation with the Partido Liberal from friends, colleagues and party officials in Honduras;

   ·material relating to levels of excellence achieved in local [sport] in Sydney by the two applicants Mr [B] and [Master C]; and

   ·arguments, relevant law and citations from country information, as collated by the adviser.

7. I have given due consideration to all of this material.

   Evidence to the Tribunal

8. At the Tribunal hearing, Ms [A] confirmed that she usually resided in the [Suburb 1] district of Tegucigalpa.

9. Ms [A] then said that she was local Partido Liberal [Office bearer 1] from 1990 until 2009 when she was attacked and President Zelaya was overthrown. She said that up until then she “used to co-ordinate many things” and that “they were not happy with that”. This information did not appear to sit with Ms [A]’s claims, supported by documents she had provided to the Department, as discussed at paragraph 24 above, about having been the [Office bearer 1] of the local Partido Liberal branch council in 2014 and, more than that, for the period 2014 to 2018.

10. I asked Ms [A] for more information about what she used to do up until then and she used to volunteer as a census officer showing people how to register  to vote so that they could be eligible for national ID cards. Described thus, the work did not sound at all party political. Ms [A] also described how she used to lobby the local MP, a Partido Liberal member, for funds to be made available for road improvement projects and to institutions like local schools. Described thus, Ms [A]’s work in lobbying for community infrastructure did not sound like party political work either. She went on to describe how this work continued even after the Partido Liberal lost the presidency in (November) 2009, on the one hand contradicting the claim about ceasing to be its local council [Office bearer 1] in 2009, and on the other seeming to confirm that her work was regarded as being generally civic than party political.

11. Ms [A] told me there was a plebiscite on 28 June 2009 asking voters to allow an additional ballot box to be added at the then-forthcoming November 2009 elections for a concomitant referendum on the proposal to lift the ban on second presidential terms. She said she was working that day to set up a voting place when she first received the news of the coup. She said she put up a Partido Liberal tent at a school and that “they” did not want her to do it. When I asked her who they were, she said they called her on the telephone. She later said that that her callers in 2009 were from the party Libre, but, as noted above, Libre did not come into existence until 2011. Ms [A]’s evidence was confused.

1. Ms [A] then said she remained [Office bearer 1] of the local branch of the Partido Liberal until “they created a new party, Libre,” which would have been in late 2011, but after this she said she remained local [Office bearer 1] until 2014.

2. I asked Ms [A] to concentrate more on giving dates for events in her account, and in her responses to questions as to “when”, rather than just linking one event to another, as her evidence seemed highly confused. I nevertheless established that she was indeed trying to tell me that Libre members, whose party Libre was founded in 2009, telephoned her in 2009 to try to get her to change her allegiance from the Partido Liberal to Libre under threats of death to her and her family. Most of this evidence was still inconsistent with Honduran history, as Libre did not exist before 2011.

3. I asked Ms [A] for more detail about her political activities. What she went on to describe were more like civic lobbying activities on behalf of the whole community in her locality: she said she was repeatedly successful in lobbying her local Congressperson, even after the local Congressperson was no longer a Partido Liberal member, to secure government funding for local infrastructure projects that would be funded not through her or the party branch but directly from government to and through the institutions needing the funds. There seemed to be nothing political about Ms [A]’s role in the process. In fact, she later said she was not sure what the Congress did after 2009 or even if it continued to operate after 2009, because she stopped liaising with the local Congressperson in 2009, due to the threats from (the albeit not yet existent) Libre. She said she let the community take over these activities after 2009. Then she said that Congress was not suspended in 2009 and explained that she had mistakenly been vague about this because she was traumatised.

4. I asked Ms [A] about the apparent composition of the local Partido Liberal branch, given that its executive was dominated by her and her family. In response she said that her children joined the committee so that they could help with facilitating the census, which was not evidently a party political activity, and organising local Mothers’ Day celebrations, which did not appear to be a political activity either. I asked her if her committee had been elected democratically or, rather, appointed somehow, and she said she had been elected and that other members might or might not have been elected. I asked if her children had been democratically elected and she said they had been. I asked her to explain the meaning of “2014-2018” and she appeared unable to do so at all.

5. Whereas Ms [A] had told the Department that she did not know the affiliations of the visitors to her home in 2014, and could only speculate that they represented one of a large number of political groupings in Honduras, she told me that the men who came to her home on the first occasion identified themselves as Libre members who demanded she abandon her home because she refused to join Libre. She repeated this claim at the hearing, saying the men had said to her, “If you won’t join us you have to leave here.” She confirmed that the men said this verbally to her. I put to her that this evidence was inconsistent with earlier evidence to the Department to the effect that all of the demands made by these two people were made in writing in the letter they handed to her daughter, or, as just suggested, directly to her. In response, Ms [A] simply said that she and the children left immediately.

6. I could see that Ms [A] was agitated and emotional throughout the first hearing so I offered an adjournment to let her gather capacity to proceed. As it happened, it seemed more reasonable to start the hearing on another day, in the morning, so that we could take time if necessary without the end of the day closing in upon us all. The applicants and the adviser agreed to an adjournment to another day.

7. At the resumed hearing, I asked Ms [A] to clarify when Libre first started to threaten her, and she said, “2009.” I put to her that Libre was not formed until late 2011, and in response she said Libre was formed on 28 June 2009, which, I note, is not true. I put to Ms [A] that the Frente Nacional de Resistencia Popular was formed in 2009 and she said, “Yes.” I put to her that it seemed somewhat inconceivable that she would have been receiving death threats from FNRP members in 2009 as both the Frente and the Partido Liberal had common cause in opposing the coup and bringing its plotters to justice, to which position Ms [A] said, “No. When they did that I didn’t like.” I asked her what she was trying to say here as her testimony, again, seemed confused. She then said that Zelaya “changed” and that she did not like this. Ms [A] appeared to be referring to when Zelaya became a leader of the Libre movement (see paragraph 39 above) after a period of division in the Partido Liberal in 2009, but even this did not happen until 2011, so in the end she did not address cogently or even logically my concern about whether she could conceivably have received death threats from the FNRP as early as 2009.

8. I then asked Ms [A] to give me some detail as to the content of the threats she claimed to have received in 2009. In reply, she said, “[From] Libre? In 2009? I don’t know. All I had was threats.” Again, I asked Ms [A] if she could give me more detail. And she said that she received threats “on that day” and that it was “not clear who threatened”. Now she was suggesting that it might not have been Libre, and still she had not provided any detail about the content of the threat or threats. Recalling that she had not been specific when she said “on that day”, and in view of her account slipping between 2009 and 2014, I asked Ms [A] to tell me more precisely what day she was describing. In reply, she said she was referring to 28 June 2009. She said “they” rang her “at night” and told her she had to leave the Partido Liberal and had to join them. I asked her if they told her who they were (since they supposedly wanted her to join them), and she said, “No.” I put to her that her caller seemed stupid not to remember to tell her which party or group to join to avoid being killed, and she then changed her evidence, saying, “They only told me to stop working for the party.” She said they used “rude words” and threatened to kill her children. 

9. Since it was the army that intervened to stop the 28 June 2009 poll from going ahead, I asked Ms [A] if someone affiliated with the army or a then–existent opposition to the Partido Liberal, such as the Partido Nacional, might have called her on 28 June 2009. In reply she said, “I don’t know,” but said more emphatically that it would not have been anyone from the “National Party”.

10. I put to Ms [A] that her evidence about the source of alleged threats in 2009 was inconsistent with historical facts and also internally inconsistent, given that her claims had changed from identifying Libre as the source of the threats to saying she did not know who could have been making them. In reply, she made yet another different claim, suggesting that the caller was from the FNRP and explaining that the “Front and the Liberals divided immediately”. I asked her how would the FNRP have time to mobilise on the very day of the coup in time to be telephoning Partido Liberal members that same evening to threaten them. In response, she said it seemed possible to her because there were already people out on the streets breaking windows in the evening of 28 June 2009. I considered this claim, but looking at the political groupings that existed at the time, such people could easily have been Partido Liberal supporters aggrieved at the removal of their President. I put to Ms [A] that the phenomenon of people reacting on the streets in the heat of events seemed far more plausible than launching a telephone campaign on the very day of the coup, and here Ms [A] again appeared to alter her position diametrically: she said the Partido Nacional was involved in telephone calls and threats.

11. I drew Ms [A]’s attention to her having been certain that Libre had threatened her in 2009, to suggesting that it was the FNRP, or the army, certain as she was at the time that it could not have been the Partido Nacional, then to suggesting that it could indeed have been the Partido Nacional. In response she said she had never been clear about who had been threatening her. She also said she never participated in any political demonstrations or protests.

12. I put to Ms [A] that I had not been able to locate any independent evidence even remotely suggesting that Libre or its supporters antagonised Partido Liberal members and supporters with death threats or tried to extort then into changing political sides. In reply, she said, “It happened to me.” However, her evidence to the effect that she was ever threatened by agents of a political party was, as show above, frequently self-contradicting, often inconsistent with historical fact and, considered cumulatively, plainly unreliable.

13. Since Libre had already come into existence by 2014, and since she had been agitated and emotional during the preceding hearing when we were discussing the alleged two visits to her home in that year, I invited Ms [A] again to tell me why she felt certain that it had been Libre that sent the aggressive visitors to her door in 2014. I had to ask the question three times, as she did not appear to be addressing the particular point of the question on the first two occasions. Eventually she said she was certain that Libre sent the men to her house on [a] Sunday [in] April 2009 because they said so in the letter that they handed over. I asked her to recite to the best of her memory what was in the letter, and she said:

    Because you don’t go to Libre, you have to leave your house [and] your colony [or locality; the Spanish term colonia is used in Honduras] or be[dead and] decomposed.

14. I put to Ms [A] that, far from identifying Libre in her protection visa application as the group responsible for these visits and threats, she had said that it could have been any of a large number of groups such that she did not know who was responsible. I read to her what she had said in the statement of claims submitted along with her protection visa application form. I then asked her if the visitors might merely have been young hoodlums, say, from one of the maras. In reply, she said they may have been Libre agents disguised as mara members. She then said she heard them say to her that they were from Libre. I put to her that this claim was contradicted by what she had said in her written claims to the Department. She made no comment.

15. I put to Ms [A] that she had told the Department that the visitors to her house first came in May 2014, not in April, and she said that the reference to May had been an error. I asked her where she and the family slept that night and she said they went to her daughter [Ms D]’s place “in a different colonia”. She said they only spent one night out of their own home because she had to go to work the next day.

16. I asked Ms [A] where the family stayed after the second visit, the night of the gunshots into the front door, and she said they went to stay at the hone of Ms [B]’s boyfriend, also in a different colonia. I asked her if any harm came to her family in these other colonias and she did not claim that any harm or threats of harm occurred. She said the family then moved after one week to stay for three months in [Suburb 2] with [Ms D] and her family, which evidently included [Master C]’s siblings. She said that [Ms D] rented that house. She also said that [Ms D] had since then been living in different houses outside of Tegucigalpa because she was afraid someone might come to ask about her and the other applicants; she did not provide any evidence to support this particular claim.

17. I asked Ms [A] if the two visits in April 2014 might simply have involved gangsters who wanted some of the money they thought she might have been raising for the local community and she said, “Maybe. But I didn’t get the money.” I put to her that gangsters might have imputed that she handled money, even so, and she then said, “Yes. I was also involved in food projects.” I note she said “Yes” to this question even though she had made no claims to date suggesting that the visitors to her house ever demanded money. Still, I put to her that if she handled funds for local food projects, this was the kind of thing that the political left tend to welcome, making it harder to see that the men who came to threaten her in her house were from Libre. In reply, Ms [A] said that she used to organise local piñata parties but never actually had any money in her house. Her overall position was that it was unlikely to be maras harassing her at home because, whether they knew it or not, she never kept money at home.

18. I invited the other applicants to give evidence.

19. Ms [A]’s son Mr [B] said that it was difficult for him to remember events. He said he was in his room when the visitors came to the family home in April 2014. He said he saw his mother talking to two men. He said he could see she was crying. He said he was grateful to Australia for protecting his family. He said that since his father had died, he only had his mother. He said he was already a professional [sport] player when he arrived in Australia. He said his dream was to play for Australia. He said he had also met his fiancée in Australia and intended to marry her in 2020.

20. Ms [A]’s daughter Ms [B] said she mainly wanted to say that the family is at risk of harm foreshadowed in the threats it had received. She said it had been very difficult for the family to leave Honduras. She said that on the night of [date] April 2014 a gun was put to her head and she thought at the time that she was going to be killed. She said that since then every noise scared her causing her to think someone was about to kill her. She said that after the first visit the family did not know what would happen, and that after the second episode, the one with the gunshots, she prayed to God.

21. Ms [B] then said Libre and the mara known as MS-13 are both in the business of demanding money. She said that her family did not pay and, therefore, would be killed for refusing to pay. In saying this, she seemed to be supporting Ms [A]’s position to the effect that “[m]aybe” the visitors demanded money, even though she had none to hand over. This new version of events was, up to a point, was somewhat similar to what Ms [A] had herself said a few moments earlier (see paragraph 75 above), but quite different from how Ms [A] had described events in her evidence to the Department and for the larger part of the two Tribunal hearings; alleged demands for money had only become part of the evidence in this case after I myself had posited them as a possibility quite late in the resumed hearing.

22. I put to Ms [B] that the evidence about Libre being responsible for the threats in this case had not hitherto been consistent, and she said this was because Libre had been born out of a movement (presumably the FNRP) that had included in its ranks various maras and drug traffickers. This claim was unsupported; I also note, for example, that no mention of criminal gangs was made in the independent evidence about the FNRP’s composition cited at paragraph 40 above. Looking closer at independent evidence of MS-13’s affiliations, I have found no evidence to suggest that it ever aligned with the NFRP or, for that matter, with Libre. The  evidence cited at paragraph 40 above indicates that MS-13, which was born in Los Angeles, California in the 1970s and 1980s and then spread into central America, mainly through El Salvador, has tended align with local Mafia groups rather than political parties, comprises disparate cliques that are structured so hierarchically as not to resemble left-wing groups in their distribution of power and control, and had become so cautious in its recruitment practices by 2012 for it to seem far-fetched that they would have been trying to recruit a Partido Liberal-supporting housewife in 2014.

23. At the conclusion of the Tribunal hearing, the adviser asked me to consider the current law and order situation in Honduras especially insofar as it could affect the children, notwithstanding that [Master C], for one, has made any claims of his own.

24. There were no post-hearing submissions.

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

25. The applicants’ claims relate to the relevant factor of “political opinion”, actual and imputed. “Political opinion” is one of the five factors cited in s.5J(1)(a) of the Act, so the claims are relevant to s.36(2)(a) of the Act.

26. The applicants’ narrative also refers to a fear of being harmed and extorted by criminal gangs, a factor that they have linked to Ms [A]’s civic activities, which may also involve actual and imputed “political opinion”.

27. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that I should give the benefit of the doubt to a protection visa applicant who is generally credible but unable to substantiate all of his or her claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[23] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[24]

    [23] MIMA v Rajalingam (1999) 93 FCR 220.

    [24] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

28. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[25] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any obligation to specify, or assist the applicant in specifying, any particulars of his or her claims; nor does the Tribunal have any obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden on the Tribunal to make out a case that an applicant has failed to advance adequately.[26]

    [25] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70

    [26] Sun v MIBP [2016] FCAFC 52 at [69].

29. I am duly guided in the present matter by relevant jurisprudence and by the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility, last updated on 20 December 2017. I have had particular regard in this matter to their advice to the effect that a Tribunal hearing can be a potentially daunting experience for some, and to stress and other factors beyond a person’s control can have an effect on his or her capacity to give cogent, meaningful and credible evidence. It was in an effort to ameliorate Ms [A]’s visible nervousness at the first hearing that I allowed an adjournment of several days, making suggestions before we adjourned as to how Ms [A] might provide more helpful information in response to questions I needed to ask. Overall, having given this issue much consideration, I am satisfied that Ms [A] or the other applicants in this case were prevented from giving intelligible, meaningful and credible evidence by circumstances or conditions outside of their control.

1. I accept that Ms [A] is a divorcée from colonia [Suburb 1] in Comayagüela district of Tegucigalpa, Honduras. I accept that she and her family are all citizens of Honduras. I accept that she has one child who still resides in one of the other colonias that comprise Tegucigalpa: her married adult daughter [Ms D] who, with the present exception of her eldest son [Master C], lives there with her immediate family.

2. I accept that Ms [A] and her family supported and still support the Partido Liberal in Honduras. I accept that Ms [A] joined the Partido Liberal in 1990. I accept that by 2009 she was the local [Office bearer 1] of the party’s “local council structure” in the neighbourhood of [Suburb 1]. I accept that three of her children including the applicants Ms [B] and Mr [B] were also involved with that committee, as was her son-in-law. On the evidence of this committee membership list, I find that [Ms D] and her husband lived in or at least not significantly far from the neighbourhood in which Ms [A] and the other applicants resided. I give very little weight, on the evidence before me, to the claim in this matter about [Ms D] having moved from place to place in recent years due to fear of being located by persons hostile to the family. Whereas subjective fear might have motivated such a move, the applicants have provided no evidence of [Ms D] and her family having been harassed or threatened, let alone in ways that might be relevant to this matter.

3. On the inconsistent evidence presented in this case, I do not accept that Ms [A] or her family received death threats from anyone on 28 June 2009, or in 2009 at all, for that matter, let alone from Libre, which did not exist until late 2011. For clarity, I have considered whether she could have been talking about the FNRP, army or Partido Nacional, but I found her account of the threats on 28 June 2009 so far-fetched in their detail as to lack credibility. I do not accept on the evidence before me that Ms [A] and the other applicants were threatened prior to the alleged events of April 2014.

4. Accordingly, I find that the kind of community work in which Ms [A] was involved was not significantly affected by the 2009 coup as claimed. To encapsulate how unsatisfactory I find Ms [A] to have been as a witness in this matter, I recall here that just within the timeframe of the Tribunal hearing, she initially claimed that she ceased to be the [Office bearer 1] of this local neighbourhood body at the time of the coup in 2009, and then talked about ongoing success in the same role in the same body lobbying for neighbourhood community projects over subsequent years.

5. I have considered what Ms [A] claims to have done over the years on behalf of the local community and her party, the Partido Liberal. I accept that she did not participate in any demonstrations or protests in Honduras and find, on the evidence before me, that this was not out of fear of being harmed for associating with the Partido Liberal but because demonstrating was not something she was genuinely interested in doing. I make similar findings in respect of Ms [B] and Mr [B]. I do nevertheless accept on the evidence before me that they were all involved in local social and civic initiatives, such as food delivery and piñata events; in assisting with the implementation of census registration to help people obtain national ID cards, the better to be eligible for government assistance; in campaigning on behalf of Partido Liberal candidates in the run-ups to elections, such as in 2013, as seen in photographs they submitted; and, again, in lobbying for state funds to be directed to local institutions to assist them with education and infrastructure upgrades.

6. On the evidence before me, I find that Ms [A]’s work, even in the role of local [Office bearer 1] of the Partido Liberal’s “local council structure” was at a low and local level, and quite distant from party politics: the document she submitted to the Department attesting to her role in this “local council structure” shows how small the committee was, and her description of what she and the committee did shows that their work was not political to any significant extent, in spite of some of her colleagues opining, in letters of support, that she was “militant” and her work “political”. I make a similar finding with regard to Ms [B] and Mr [B]. In addition, I am not satisfied on the evidence before me, which in the main relates to two brief, but traumatic, episodes in the same month of 2014, that the applicants’ activities with the “local council structure” were imputed as being political to any potentially significant extent, either by the party in government or by other political parties and groups in Honduras. I therefore conclude that the applicants’ claims about the imputed political importance of their work, and Ms [A]’s work in particular, are exaggerated.

7. On the evidence before me, I am prepared to accept that there were two traumatic incidents at the front door to the [A] home in [Suburb 1] in April 2014. I accept that two men came to the front door and made unwelcome and violently threatening gestures and remarks on the first occasion, particularly towards Ms [B]. I also accept the same or similar persons harassed the family from the other side of that same door on the second occasion, eventually firing a few bullets into the door itself. However, I find on the evidence before me, in my summation both inconsistent and improvised, that I  do not accept any of the applicants’ versions of events suggesting that these unwelcome visitors belonged to a rival political party, whether it was Libre or any other. I find on the evidence before me that Ms [A] has attempted disingenuously through the accretion to her account of inconsistent details to portray herself as a person with a political profile that she did not and does not have. I also find that the written and oral evidence of the other two applicants, though very broadly consistent with the outline of Ms [A]’s claims, was not helpful in supporting any of the constructions that Ms [A] has sought variously to advance as to the ongoing import of the two April 2014 episodes.

8. Still, as stated above, I am prepared to accept that the family was harassed at home on two occasions in April 2014. That said, given the inconsistencies in evidence as to the content of oral and written demands, and also as to the source and objective of the demands, I do not accept that the people harassing Ms [A] and her family demanded that she quit the Partido Liberal or the “local council structure”, or stop working in the community, or join their own group, whatever it was. It is also difficult to accept that the visitors were seriously trying to evict the family from the house because claims about trying to get them to move were linked inconsistently, in evidence, to a variety of clashing demands, and also because, though armed on both occasions, the visitors left the family residing where it was, which strikes me as being quite unlike the behaviour of criminals described in independent reports submitted by the applicants in this case. (See f.108-111 of the AAT file.) No claims or evidence have been presented to suggest that the men who came to the door, or anyone affiliated with them, took over the residence after the family left. However, I do not rule out that the family was told at the time that it would have to leave their house if it wanted to survive.

9. I also can and do accept, as sometimes suggested by Ms [A] and Ms [B] during the resumed Tribunal hearing, that money was demanded of them in April 2014, and that the threats were made because the family was unable or refused to pay, although it is difficult to see how the family survived the first episode without handing over any money.

10. Drawing together those aspects of Ms [A]’s accounts that have been consistent from the outset, aspects with which the brief oral evidence of her two children is generally consistent, and filtering out those aspects of Ms [A]’s evidence that are inconsistent and fanciful, I am prepared to accept that the applicants more likely than not had two unhappy encounters with criminal individuals in April 2014, and that they may have been profiled in part because of their association with the “local council structure” and its fundraising activities, but that their political profile and affiliations were not “essential and significant” reasons for their being targeted by these people, the motivations of the perpetrators being mercenary and property gain by criminal means. Inconsistencies in the evidence relating to the letter, to what threats and demands it contained and to what threats and demands were made not within it, but orally, make it difficult for me to accept that there ever was an actual letter. Either way, I find that the inconsistent information about what the letter contained and what was said at the time, and to whom, leaves me unable to rely on any of the suggestions in this case about the incidents in April 2014 having been anything other than momentary and isolated criminal disruptions that have no nexus to s.5J(1)(a) and no significant ongoing implications.

11. It is another matter to accept that the individuals who harassed the applicants in April 2014 were mara members. According to the evidence it was not apparent let alone obvious to the applicants that they were mara members, and the evidence to the effect that they represented a rival political party has been dismissed here as unreliable. Also the applicants’ description of their neighbourhood and its relationship with officials including the Congress indicates that it was under government influence, not mara influence. The location of [Suburb 1] to Tegucigalpa’s operating international airport also suggests that it is within government control. So the identity and affiliation of the visitors is unclear, except that they were behaving criminally.

12. In Chan v MIEA, McHugh J stated:

    The notion of persecution involves selective harassment ... [It is not] a necessary element of “persecution” that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, she is “being persecuted” for the purposes of the Convention.[27]

    [27]   Chan v MIEA (1989) 169 CLR 225, per McHugh J at 429-430. His Honour supported this proposition by reference to Periannan Murugasu v MIEA (1987) 217 ALR 17, where Wilcox J had stated at 23 ‘[t]he word “persecuted” suggests a course of systematic conduct aimed at an individual or at a group of people. It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances’.

13. On the evidence before me, I find that the two April 2014 episodes were quite isolated local events that were likely motivated by immediate or short-term goals of acquiring money and/or property by criminally coercive means. I find that no similar events or threats occurred before April 2014, in spite of Ms [A]’s activities with the “local council structure” having continued back to 2009 and earlier. This adds weight to the conclusion that the two episodes were isolated and not systematic as far as the applicants were and are concerned. I give some weight to the fact that the applicants’ lives were spared on both occasions, notwithstanding allegedly explicit death threats, even though they had not moved out before the second incident and even though bullets were shot into their door that time. I give weight to the evidence indicating that [Suburb 1] is under government control, having been the recipient of ongoing government funds over the years, and has apparently never been controlled by any of the maras. I give some weight to the fact that Ms [A]’s daughter [Ms D] and her husband left [Master C] in her care for the years that he resided with her. Having read their declaration regarding his fostering by Ms [A] and their concerns for his wellbeing, I do not believe they would have left him with her if a trend of death threats delivered to her at that household had developed over a period, however brief. I give some weight to the fact that, although the applicants moved in with [Ms D] in another part of Tegucigalpa, and although they were afraid that harm or threats of harm might continue, none evidently did, although they remained resident in the capital with family for a further six months.

100.   Meanwhile, the applicants said they never sought assistance or protection from the authorities in Honduras because the police, in the applicants’ opinion, are “corrupt”. As shown above, particularly in the material cited at paragraphs 36, 45, 46 and 51 above, there is evidence of corruption within, and impunity enjoyed by, police units in that country. The authorities have also reportedly been inadequate in protecting active human rights campaigners, as mentioned in the citation at paragraph 47. However, the applicants, though visible during election campaigns, are not human rights campaigners, and, according to The Guardian (cited above) and other sources, authorities have reined in gangs and gun violence in Honduras in recent years. According to information submitted by the applicants themselves,[28] the maras in Honduras are smaller than previously understood. It strikes me as mere bald speculation that the applicants would not have received protection from the authorities back in 2014 had they sought assistance, particularly since she continued successfully in her local council role after the coup. It strikes me as being purely speculative that Ms [A] would have been denied assistance and protection due to her locally-known support for the Partido Liberal. I give some limited weight to the applicants’ subjective views of the authorities’ corruptibility in Honduras as at 2014, and consider those views to be ingenuous, but, although corruption is still a problem in Honduras, I give more weight to the passing of time, to evidence of some albeit small decline in gang activity in Honduras and, in particular, to material cited at paragraph 51 above relating to recent successes in concerted campaigns to disarm and prosecute mara members, other criminals and corrupt police in Honduras.

[28] See ff128-134 of the AAT file.

101.   Relevant to this, Australian courts having ruled that states are not required to guarantee the safety of their citizens from harm caused by non-state persons.[29] In MIMA v Respondents S152/2003 Gleeson CJ, Hayne and Heydon JJ observed that “no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence”.[30]  Justice Kirby similarly stated that the Convention does not require or imply the elimination by the state of all risks of harm; rather it “posits a reasonable level of protection, not a perfect one”.[31] In this case, the applicants say they did not even try to seek assistance or protection from the authorities during or after the events of 2014.

[29] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26]. See also MIMA v Thiyagarajah (1998) 80 FCR 543 at 566-7,

[30] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26].

[31] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [117].

102.   Overall, I am satisfied that the applicants have effective state protection in [Suburb 1] and other parts of Tegucigalpa. I have not looked at the questions of relocation as I have found that the applicants can return to Honduras via the international airport in their own colonia and resume living there without facing a real chance of being persecuted.

103.   I give some weight in this matter to the evidence about the law and order situation in Honduras being a problem that affects the population generally, and particularly its movements throughout many locations in the country.

104.   Overall, I am not satisfied that the applicants face a real chance of being persecuted in Honduras for reasons of being affiliated with the Partido Liberal generally or its “local council structure” in [Suburb 1] in particular: that party continues to be an active player in the Honduran political process, albeit with markedly less support than it enjoyed up to a decade ago, and no evidence before me suggests that its membership is being purged from without or within, notwithstanding the evidence of its followers having defected to Libre over the years, and notwithstanding that some Partido Libre candidates and activists having been killed or injured by rivals over the years, as candidates and activists from various parties have been, usually during election campaigns.

105.   Having considered all of the evidence before me in its entirety, I am not satisfied that the applicants face a real chance of being persecuted in Honduras in the reasonably foreseeable future for any reason identified in s.5J(1)(a) of the Act. Their claimed fear of being persecuted is, for the purposes of s.5H(1), not well founded. They are not refugees.

106.   For the reasons given above, I am not satisfied that that the applicants satisfy the criterion set out in s.36(2)(a) of the Act.

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

107.   Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

108.   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.

109.   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).

110.   "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.

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

112.   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.

113.   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.

114.   As the applicants are citizen of Honduras, I find that Honduras is the “receiving country” in this case.

115.   I find that the harm the applicants have identified in this matter include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.

116.   The applicants’ claims to complementary protection are essentially the same as their refugee status claims. Since their refugee claims have failed on the basis of a lack of reliability and/or a failure to meet the “real chance” test, they can no more succeed as complementary protection claims.

117.   However, it is appropriate to look again at certain specific claims in this matter through the lens of complementary protection, mindful of s.36(2)(aa) of the Act not requiring a nexus to s. 5J(1)(a). Specifically these are claims about the law and order situation in Honduras.

118.   As discussed, I have not accepted on the evidence before me that anyone was trying to get Ms [A] to leave the Partido Liberal in exchange for being able to continue residing in her house, let alone join another political party. However, I was prepared to accept that she and her family encountered a couple of violent and disruptive, criminal individuals who, as she and Ms [B] acknowledged, may have been pressing her for money. Although we spoke of maras at the hearing, the prevailing facts before me, once one rules out rival political parties, indicate that the applicants were unable to identify or associate the visitors with anything and that, though armed on both occasions, they went away empty handed. Meanwhile, the applicants lived in a part of Tegucigalpa that was evidently under government control and nearby the country’s international airport, which is evidently securely in government hands. The basis for assuming the visitors were mara members is therefore not strong. However, I can accept they were armed criminals of some kind.

119.   When the adviser asked me to consider the potential impact of the law and order situation in Honduras on the applicants, she drew my attention to a problem affecting all classes and socio-economic sectors in Honduras, and therefore to the fact that the risk of relevant harm here “is one faced by the population of the country generally and is not faced by the [applicants] personally.” This is notwithstanding the applicants’ unsuccessful efforts to suggest that they had been singled out personally because of their political opinions and allegiances. For this reason alone, the applicants s.36(2)(aa) claims fail.

120.   In addition, I find that the two incidents back in April 2014 were so isolated that I am not satisfied as to their being or continuing to be indicative of a real risk of significant harm in this case.

121.   Furthermore, although there are clearly identified inadequacies in the capacity of the state to protect the Honduran population from criminal behaviour including gang violence and extortion, I nevertheless give weight to improvements in efforts to reduce crime in the country, and thus find that the applicants “could obtain, from an authority of the country, protection such that there would not be a real risk that [they] will suffer significant harm” enabling them to continue living in government-controlled [Suburb 1], which evidently would not be difficult to reach from the international airport.

122.   Having considered all of the evidence in this case, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Honduras, there is a real risk that the applicants will suffer significant harm.

123.   Accordingly, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

Other findings

124.   There is no suggestion that any of the applicants satisfy 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, they do not satisfy the criterion in s.36(2).

DECISION

125.   The Tribunal affirms the decision not to grant the applicants protection visas.

Luke Hardy
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

MIMA v Prathapan (1998) 86 FCR 95 at 104-5 per Lindgren J, Burchett & Whitlam JJ agreeing. This aspect of Thiyagarajah

was not disturbed by the High Court decision in NAGV & NAGW v MIMIA (2005) 222 CLR 161.