1709126 (Refugee) - [2021] AATA 781

1709126 (Refugee) [2021] AATA 781 (18 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709126
COUNTRY OF REFERENCE:                   El Salvador
MEMBER:Damian Creedon
DATE:18 February 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the second-named applicant satisfies s.36(2)(aa) of the Migration Act; and
(ii)that the first-named applicant satisfies s.36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the second-named applicant.

Statement made on 18 February 2021 at 9:32am

CATCHWORDS
REFUGEE – protection visa – El Salvador – street gangs – physical, sexual and psychological violence – Mara Salvatrucha (MS-13) – 18th Street Gang (Mara 18) – particular social group – single woman of lower socio-economic status – rate of femicide – perceived wealthy returnee – young boy raised in an English-speaking, developed country – targeted for recruitment by street gangs – causal nexus – complementary protection – risk shared by the general population – individual exposure to the risk – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
BBK15 v MIBP [2015] FCA 680
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZSPT v MIBP [2014] FCA 1245
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 April 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
Background
The applicants, who are citizens of El Salvador, applied for the visas on 25 March 2015. The first-named applicant (applicant) is [age] years old, and was born in El Salvador; her son, [the second-named applicant], is [age] years old, and was born in Australia on [date].
The applicant first arrived in Australia [in] October 2010 holding a Student [visa]. The applicant was granted a further Student [visa] on 23 December 2011, valid until 19 April 2012. On 16 April 2012, the applicant lodged a Partner visa which was refused on 7 October 2014. The applicant was onshore unlawfully between 4 November 2014 until 18 February 2015 when she was granted a Bridging visa which is still current.
The applicant applied for a protection visa on 24 March 2015.
Protection visa application
In a statutory declaration made on 20 March 2015 and filed in support of her protection visa application, the applicant made the following claims:
a.The applicant was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1709126 (Refugee)

Details

AGLC: 1709126 (Refugee) [2021] AATA 781
Case: [2021] AATA 781
Decision Date: 18 February 2021

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse protection visas to citizens of El Salvador. The applicants, a mother and her Australian-born son, claimed they feared persecution due to gang violence in El Salvador. The mother alleged past harassment and threats from gangs, and expressed a fear that her son would be targeted for recruitment and potentially killed if he refused.

The court was required to determine whether the applicants met the criteria for a protection visa under the Migration Act 1958. Specifically, it needed to assess whether the mother had a well-founded fear of persecution for reasons of membership of a particular social group, or alternatively, whether there were substantial grounds to believe that, as a necessary and foreseeable consequence of removal, she or her son would suffer significant harm, thus engaging complementary protection obligations. The court also had to consider whether the son, as a child raised in Australia, faced a real risk of harm upon return to El Salvador.

The court found that the mother had not satisfied the criteria for a protection visa under section 36(2)(a) or (aa) of the Act. However, it was satisfied that she was a member of the same family unit as her son for the purposes of section 36(2)(c)(i). The court remitted the matter for reconsideration, directing that the son be found to satisfy the complementary protection criterion under section 36(2)(aa), and that the mother satisfy the criterion under section 36(2)(c)(i) based on her family membership with her son.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 April 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).Background The applicants, who are citizens of El Salvador, applied for the visas on 25 March 2015. The first-named applicant (applicant) is [age] years old, and was born in El Salvador; her son, [the second-named applicant], is [age] years old, and was born in Australia on [date]. The applicant first arrived in Australia [in] October 2010 holding a Student [visa]. The applicant was granted a further Student [visa] on 23 December 2011, valid until 19 April 2012. On 16 April 2012, the applicant lodged a Partner visa which was refused on 7 October 2014. The applicant was onshore unlawfully between 4 November 2014 until 18 February 2015 when she was granted a Bridging visa which is still current. The applicant applied for a protection visa on 24 March 2015.Protection visa application In a statutory declaration made on 20 March 2015 and filed in support of her protection visa application, the applicant made the following claims:a.The applicant was born in [El Salvador] on [date].b.The applicant and her sister were abandoned by their mother as infants. They were raised ‘for a short time’ by their great aunt [Ms A], and then by their great aunt [Ms B] in Apopa, El Salvador.c.In respect of her past persecution in El Salvador, the applicant states:The area in which I live is run by the ‘Mara Savatucha [sic] 13’ gang (‘MS13’), which is linked to another large gang in El Salvador called ‘Mara Savatucha [sic] 18’ (‘MS18’).d.The applicant states that Apopa has always been dangerous because of the risk of being caught in ‘cross-fire’ violence between gangs, however during her high shool years the gangs began to become more involved in ‘hurting and terrorising’ civilians; she states:They would rape the women and kill the men, even if they were not involved in any gang business. e.The applicant states that daily life became ‘very frightening’ on account of the ever-present danger of violence; she states:When I was about 14 my sister’s friend, who was 12 years old, was raped and then killed by some of these gang members. They grabbed her on New Years Eve, raped her, killed her, cut her breasts off and mutilated her body.f.The applicant claims three incidents when she was harassed and threatened by gang members:i.She was followed by a particular gang member, causing the applicant to fear for her safety and to modify her natural behaviour to try to hide from him.ii.When she was ‘about 15’, she was attacked by a gang member on her way home from school; he ‘touched’ the applicant and would not let her go, causing the applicant to fear for her life. She managed to ‘run away’, however the applicant started to follow her, on one occasion with a knife which he showed to the applicant. Again, the applicant was forced to modify her natural behaviour for her own safety.iii.When she was ‘around 20’, she started work (as a [Occupation 1]) at the [named location] (clarified at the hearing to be a [business]). She would often have to leave late, in the dark at 9:00pm, and not arrive home until 10:30pm. Another gang member started to follow her after work; the applicant states:He was always on the street waiting for me and would say vulgar things to me if I was close. I was very frightened of being grabbed by this person.g.The applicant states that she was aware of the violence (rape, murder and mutilation) inflicted by the gangs on members if her community and she was afraid the same would happen to her.h.The applicant states that she personally knew of two victims of such killings; both were boys who refused to join the gangs.i.The applicant describes an incident of violence from the gangs: in an area of San Salvador, the MS18 gang captured a bus ‘full of people’, including women and children and elderly passengers. The gang covered the bus in petrol and lit it on fire, shooting anyone who tried to escape. The applicant states that the incident ‘really scared her’, she states that:I was even more terrified of catching the bus at night after this, but I had no choice.Attacks became more regular. One time I was on a bus and the MS 13 gang got on and shot the driver.' Everyone was screaming, because we all thought that we would be killed.j.In respect of [the second-named applicant], the applicant describes the situation in El Salvador in the following terms:The gangs hang around schools and they speak to young kids, so that when they grow a bit older they can recruit them. They try to influence boys from a young age.k.The applicant states her fear that, at around the age of [age], the MS gangs will ‘come looing’ for [the second-named applicant] to join them and that, if he refuses, ‘they will just kill him’.l.The applicant states that the MS gangs are present throughout El Salvador and that nowhere is safe for her and [the second-named applicant].m.She states that her sister, brother-in-law and nephew have been the victims of extortion and have to ‘move around’ to avoid being followed by gang members and to stay safe.n.The applicant states that, as a single mother, with no close male to protect her (a brother or a partner) she will be singled out and perused by the gang.o.She states that it is impossible to run a business or ‘make a living’ without being at risk of extortion and violence.p.The applicant states that the police are afraid of the gangs and do not intervene; the military (‘soldiers’) intervene when ‘something really bad has happened’, but that the gangs ‘go underground’ until the soldiers leave; the applicant states:So no one can protect me and my son from the gangs, I know that if [the second-named applicant] and 1 have to return to El Salvador, we will most likely lose our lives. If they grab me, I don’t even want to think about what they will do to me. What I am most afraid- of is that they will kill [the second-named applicant] if he refuses to Join them.

Evidence

Evidence Before The Court

Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.CONSIDERATION OF CLAIMS AND EVIDENCEThe relevant law 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. 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. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their 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). Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they 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. 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 In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.Country information

Decision

Reasons for decision

The Tribunal is not satisfied that the first-named applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the first-named applicant is the second-name applicant’s mother and is therefore a member of the same family unit as the second-named applicant for the purposes of s.36(2)(c)(i). As such, the fate of her application depends on the outcome of the second-named applicant’s application. It follows that the first-named applicant will be entitled to a protection visa provided the criterion in s.36(2)(c)(ii) and the remaining criteria for the visa are met.DECISION The Tribunal remits the matter for reconsideration with the following directions:(i)that the second-named applicant satisfies s.36(2)(aa) of the Migration Act; and(ii)that the first-named applicant satisfies s.36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the second-named applicant.Damian CreedonMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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