1709126 (Refugee)

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 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.
The delegate refused to grant the visa on 11 April 2017 on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to her receiving country, there was a real risk she would suffer significant harm.
The applicant applied for a review of the delegate’s decision.
Application for review.
The applicant was represented in relation to the review by her solicitor, a registered migration agent.
Prior to her hearing, the applicant provided the Tribunal with a supplementary statutory declaration made on 8 February 2021; in it the applicant makes the following additional claims:
a.The applicant reiterates the violence of the gangs in El Salvador, and their control and presence ‘everywhere’ there.
b.She states that, as [the second-named applicant] is now [age] years old, the gangs will want to recruit him and, if he refuses, they will kill him; she states:
[The second-named applicant] has only ever lived here in Australia he has no idea how to avoid the gangs and their violence. He does not speak much Spanish, and in speaking it he has an Australian accent. He will immediately be identified as a foreigner and people will think he is American with money. This will make him a target for kidnapping.
c.The applicant states that she is single, with no male relative from whom she and [the second-named applicant] can seek protection. She states that work is hard to find in El Salvador and that it is ‘too dangerous’ for her to commute to work alone.
d.She states that her sister and brother-in-law are resident in San Salvador, but that their situation has not changed, and they are the victims of extortion and forced to regularly move, but that nowhere in El Salvador is safe.
e.The applicant states that she is not now in contact with [the second-named applicant]’s father in El Salvador.
f.The applicant states that she would be unable to live with her sister and her family, or her aunt, as the applicants’ presence would draw attention to their relatives and heighten the danger to them all.
The applicant appeared before the Tribunal on 15 February 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The 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
It is convenient to outline the country information available to the Tribunal in respect of El Salvador before considering the applicant’s evidence.
Country information records that El Salvador is ‘beset by alarming levels of criminal violence’,[1] and has one of the highest murder rates in the world.[2]
[1] Thale, G 2013, 20 Years after the Salvadoran Truth Commission, Washington Office on Latin America, 15 March <
[2] World Population Review, <>
In 2011, El Salvador was ranked by the United Nations Office on Drugs and Crime (UNODC) as the second most dangerous country in the world, with a murder rate of 69 per 100,000 people,[3] primarily attributed to gang violence.[4] The New York Times reports that:
The year 2011 was one of the deadliest since the end of El Salvador’s civil war in 1992. There were an appalling 4,371 murders — 11 people killed every day. With 70 homicides per 100,000 inhabitants, it was one of the most violent countries in the world.[5]
[3] Lakhani, N 2013, ‘Violence against women rises in El Salvador’, Al Jazeera, 7 June < ; Stone, H 2011, ‘Violence against women rises in El Salvador’, The Christian Science Monitor, 24 May < <CX265462>
[4] Stone, H 2011, ‘Violence against women rises in El Salvador’, The Christian Science Monitor, 24 May < <CX265462>
[5] Martinez, O 2013, ‘Making a Deal With Murderers’, The New York Times, 5 October <
In February 2012, approximately 13 people were murdered every day in El Salvador.[6] However, in March 2012, a government-sanctioned truce between the two main gangs led to a dramatic reduction in the country’s murder rate.[7] Freedom House reports that the ‘murder rate dropped by more than 40 percent in 2012 compared to 2011’. National police figures show that 2,195 people were killed in 2012, compared to approximately 4,000 murders each year between 2009 and 2011.[8] As outlined above, similar figures reported by President Funes show that the murder rate decreased from 4,354 killings in 2011 to 2,543 in 2012 and 2,426 in 2013.[9]
[6] Martinez, O 2013, ‘Making a Deal With Murderers’, The New York Times, 5 October <
[7] Brodzinsky, S 2013, ‘El Salvador gang truce leads to plummeting murder rates’, The Guardian, 16 May < Freedom House, Freedom in the World 2013 - El Salvador, 10 April 2013, available at: <
[8] Brodzinsky, S 2013, ‘El Salvador gang truce leads to plummeting murder rates’, The Guardian, 16 May <
[9] ‘El Salvador Homicide Rate Continues To Drop’ 2013, Huffington Post, 23 December <
UNODC has recently highlighted the particular vulnerability of women, girls and youth to the violence in El Salvador.[10]
[10] UNDOC, UNODC Addresses the Forced Disappearances and Torture of Women, Girls & Youth in El Salvador <>
The applicant’s claims centre around her fear for herself and [the second-named applicant] of what she termed ‘the Maras’; the Mara Salvatrucha (MS-13) and the 18^th Street Gang (Mara 18), (together, the maras).
MS-13 was founded in the 1980s in Los Angeles by Salvadoran immigrant youth and is today one of the largest street gangs in North and Central America. In recent years the group has acquired a reputation for extreme brutality and has ostensibly mutated into a fast-expanding, transnational organized crime network with possible ties to international terrorists.[11]
[11] Sonja Wolf, ‘Mara Salvatrucha: The Most Dangerous Street Gang in the Americas?’, Cambridge University Press, Latin American Politics and Society, Volume 54, Issue 1, Spring 2012, pp. 65 – 99.
According to FBI statistics, MS-13 had between 6,000 and 10,000 members in the United States in the early 21st century. Reports gave upwards of 50,000 in Central America. Although most members come from Hispanic cultures, MS-13 includes African Americans as well. The majority of its members are between the ages of 11 and 40, and they are easily identified through very visible tattoos, often on the face.
Mara 18 is a multi-ethnic transnational criminal organization that originated in Los Angeles before emerging as one of the two most powerful gangs in El Salvador.[12]
[12] Michael Lohmuller, ‘El Salvador’s Gangs & Prevailing Gang Paradigms in a Post-Truce Context’, InSight Crime: Investigation and Analysis of Organized Crime (2015) at 4 April 2017.
According to recent reports, Mara 18 has stopped allowing new members to prevent police infiltration[13] and the exact number of gang members varies among reports. A conservative number of 10,000-20,000 according to data from the Salvadoran National Council on Public Security is the average consensus.[14]
[13] Washington Office on Latin America (WOLA), Central American Gang-Related Asylum: A Resource Guide (1 May 2008) accessed at 4 April 2017.
[14] Max G. Manwaring, 'A Contemporary Challenge To State Sovereignty: Gangs And Other Illicit Transnational Criminal Organizations In Central America, El Salvador, Mexico, Jamaica, And Brazil', Strategic Studies Institute (December 2007) ssi.armywarcollege.edu/pdffiles/pub837.pdf accessed at 4 April 2017;

Mara 18 members are involved in a multitude of violent criminal activities including murder, extortion, drug-trafficking, car theft rings and carjacking.[15]
[15] Washington Office on Latin America (WOLA), Central American Gang-Related Asylum: A Resource Guide (1 May 2008)
As with the estimated numbers of gang membership, the internal organisational structure of Mara 18 is not perfectly clear with different opinions varying on its level of maturity and sophistication. Most experts believe that at a bare minimum, Mara 18 has a semi-hierarchical pyramid structure common to other gangs in Central America and the Caribbean.[16]
[16] USAID Central America and Mexico Gang Assessment, Annex 1: El Salvador Profile (April 2006)
At the top of this pyramid are palabreros, or gang leaders, that operate from the prison system and coordinate the gang’s activities. There are also palabreros en la libre, or those leaders who are outside the prison system and are responsible for carrying out the orders of imprisoned leaders, such as overseeing the extortion system and planning homicides. Below these palabreros are leaders called canchas, who each control several tribus, or tribes, that each consist of several dozen to hundreds of members at a street level.[17]
[17] Michael Lohmuller, ‘El Salvador’s Gangs & Prevailing Gang Paradigms in a Post-Truce Context’, InSight Crime:
Despite the gangs’ respective hierarchy, local Mara 18 leaders on the streets exercise a broad degree of autonomy and exercise wide discretion over the relationships they maintain with other gang and non-gang groups, and the type of criminal activity they conduct. Each clique is largely self-sufficient and responsible for its own financial well-being, meaning it decides for itself how to raise money and distribute criminal proceeds.[18] The failure of authorities to hold gangs criminally liable for their actions has led to a sense of impunity and freedom to operate, escalating the size and influence of each group in the pyramid.[19]
[18] Michael Lohmuller, ‘El Salvador’s Gangs & Prevailing Gang Paradigms in a Post-Truce Context’, InSight Crime:
[19] Michael Boulton, ‘Living In A World Of Violence: An Introduction To The Gang Phenomenon’, UNICEF (July 2011),
Due to the semi-autonomous power that gang members have within their own spheres of influence, each clique is allowed to operate independently and will only come together to fight a common enemy such as a rival gang or members of the police and anti-gang squads.[20]
[20] The Economist, 'Violence in El Salvador: Rivers of Blood' (10 October 2015) accessed at 4 April 2017; Óscar Martínez, Efren Lemus, Carlos Martínez and Deborah Sontag, 'Killers on a Shoestring: Inside the Gangs of El Salvador' New York Times (20 November 2016) accessed at 5 April 2017.
Country information asserts that the reasons for the growth of maras include the following: ‘poverty, marginalization, lack of access to basic services and educational opportunities; dysfunctional families’. Children are also recruited by the gangs at schools and within their communities.[21]
[21] Immigration and Refugee Board of Canada, El Salvador: The presence and activities of Mara Salvatrucha (MS or MS-13) and of Barrio 18 (Mara 18 or M-18) in El Salvador, including recruitment; information on measures taken by authorities to fight maras, including legislation and protection offered to victims of the maras, available at: >
Notably, in the context of the present application, the US Department of State's Country Reports on Human Rights Practices for 2019 indicates that the maras recruit children into gangs ‘to perform illicit activities in the arms and narcotics trades, including committing homicide’.[22]
[22] US Department of State, 2019 Country Reports on Human Rights Practices: El Salvador.
The Tribunal has also given particular regard to the following country information from the UNHRC Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from El Salvador (March 2016)[23] (citations omitted):
[23] Available at: and youth suffer multiple types of violence in El Salvador. Children may fall into any of the profiles listed in these Eligibility Guidelines. However, children in El Salvador may also be at risk of child-specific forms of persecution. Domestic abuse of children, both boys and girls, is reported to be relatively widespread in El Salvador. Moreover, the upsurge in gang violence since the early 2010s has reportedly given the country the highest rate of homicide among children and adolescents in the world, and homicide is the leading cause of death among adolescent boys in El Salvador. Since the early 2010s gangs have reportedly been responsible for the forced disappearance of a
significant number of children and youth, with the majority of victims later found murdered.
The fact that children, particularly those living in territories where the gangs operate, are frequently a target of gang violence is partly the result of the reported large numbers of youth in the gangs themselves. Children and youth who have not been recruited by a gang but who live in territories where gangs operate reportedly find it difficult to avoid coming into contact with the local gang, its members and its activities (e.g. being asked to do the gang a ‘favour’, receiving the amorous attention of a gang member, etc.) or being (mis)taken for a member or affiliate of the local gang by rival gangs. Students who go to school in an area that is controlled by a different gang than the gang that controls the area where they live are reportedly at risk of being targeted for violence by the rival gangs at school and while they travel to school.295 Children equally face such risks when they travel to visit relatives or attend a health centre, etc., in an area controlled by a different gang. The gangs are reported to have a presence in schools and some schools have been forced to close due to the violence of the gangs.
Recruitment by gangs of local children and youth – particularly boys but sometimes also girls –
reportedly starts from an early age. Efforts by gangs to recruit new members from the children and
youth have reportedly seen a significant increase since the early 2010s. New members are
reportedly often required to prove their value through acts of violence, despite their young age. Girls are reportedly increasingly targeted from a young age by gangs with demands to become
“wives” or girlfriends of gang members. The refusal to join a gang or to collaborate with its
members by a child or youth and/or their family is reportedly usually interpreted as a challenge to the
gang’s authority or as a ground for suspicion of some rival affiliation, resulting in threats and
violence directed against the child or youth and/or their family members. Even if the child leaves the
area where the gang operates, family members who remain there reportedly may continue to face
threats and violence.
Analysis reasons and findings
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (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).
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
The applicant stated in oral evidence that her principal fear in returning to El Salvador is the physical, sexual and psychological violence of ‘the maras’. When pressed, the applicant recounted her first experiences of the maras, as a 12-year-old girl on her journey home from school. The applicant described being followed by a man in his mid-20s. When pressed, the applicant stated that she identified him as a member of MS-13 on account of his facial tattoos and a tattoo of the number ‘13’ on his right shoulder. She stated that he followed her, and she felt that she was at risk of being, abducted, raped and murdered.
The applicant stated to the effect that, as a girl and a young woman growing up in El Salvador, this was not an isolated incident, and that she was constantly aware of the threat of the maras. She gave credible evidence that she was personally aware of two of their victims and she stated that she was motivated to leave El Salvador on account of her fear of violence, rape and death and to try to study in Australia to improve her English.
When pressed by the Tribunal as to her fear of returning to El Salvador now or in the reasonably foreseeable future, the applicant emphasised her fear for her son, [the second-named applicant]. She stated that he had been born in Australia, had never been offshore, and had grown up here. She stated that he spoke little Spanish, and what little he did speak was spoken with a noticeable ‘Australian’ accent. She stated that he would be marked as a foreigner in El Salvador and would not be ‘street smart’ there. When pressed, the applicant stated her fear that he was of an age to be recruited by the maras and that he would be delivered with an ultimatum to either join them or be killed. The applicant did not doubt the ability or willingness of the maras to do so.
The Tribunal has also read and had regard to a report prepared by the applicant’s psychologist on the instructions of her solicitor. The report, dated 12 June 2015, includes the following observations:
Thank you for referring [the applicant] for torture and trauma counselling at [redacted]. [The applicant] has attended an assessment and two counselling sessions.
At all sessions, she has presented with significant levels of anxiety and depression, which are confirmed by the results of [her] Hopkins Symptoms-25 Check List.
Anxiety: 2.90
Depression: 2.80
Total: 2.84
Note >1.75 is deemed a scientifically valid cut-off point, and individuals with scores on anxiety and/or depression higher than this are considered symptomatic.
Her fears, depression, and anxiety are consistent with the severe gang violence she has witnessed in El Salvador, as well as her experience of civil war (1979-1993) as she was growing up in a country that has known no peace for the last 30-40 years.
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
Overall, the Tribunal found the applicant’s evidence across her statutory declarations and at the hearing to be coherent and plausible, and to be consistent with generally known facts and country information. In making these findings the Tribunal has made allowance for the passage of time and given the applicant the benefit of the doubt where it is reasonable to do so.
Having regard to the whole of the evidence the Tribunal accepts that:
a.the applicant has a chance that is equal to or more than a real chance of serious harm, arising from significant physical harassment through sexual and other physical violence, and the ‘extreme brutality’ of the maras, if she were to return to either her home area in El Salvador or anywhere throughout her home country, now and into the reasonably foreseeable future; and
b.[The second-named applicant] has a chance that is equal to or more than a real chance of serious harm, arising from significant physical harassment through attempts by the maras to recruit him through the use of physical violence, and the ‘extreme brutality’ of the maras, if he were to return to either his home area in El Salvador or anywhere throughout the country, now and into the reasonably foreseeable future.
The applicant: well-founded fear of persecution for a Convention Reason
Having reached the finding that the applicant has a real chance of serious harm, the Tribunal is required to reach the related finding that the applicants has ‘a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion‘, as required by Article 1A(2) of the Refugees Convention.
Gender, marital and socio-economic status
The Tribunal has considered whether the applicant will face a real chance of serious harm based on membership of a particular social group, as a single woman of lower socio-economic status.
A 2013 article on the Latin America Bureau website states that, in addition to violence against female gang members and female partners of male gang members, women in the general community ‘are also subjected to extreme violence from gangs’:
Revenge or retaliation against an enemy is often taken out on women. Violence in these cases tends to be extremely cruel and sadistic and the victims’ bodies are objectified and used as a means to convey a message of terror. Gang rape of women and girls to ‘celebrate’ the birthday of a mara [gang] member or a victory are also common: women are a gift, a trophy…
El Salvador has become a catchment area and transit country for trafficking networks and it is an enormously lucrative business for the maras. The majority of victims are vulnerable women and girls who are sexually exploited or put into forced labour, for example as domestic slaves.[24]
[24] V López Calvo, & G Santos Pejic, ‘El Salvador: Truce For The Gangs, No Truce For Women’, Latin America Bureau, 19 March 2013 <
The Latin America Bureau article further states that killings of women decreased following the 2012 gang truce. However, women’s rights groups ‘question whether this means there has been a reduction of violence against women more widely within society’. While a reduction in the number of homicides overall also means a reduction in killings of women, other forms of violence against women, such as sexual assault, ‘are on the rise’. Women’s groups assert that ‘the peace negotiations don’t seem to address the hyper-masculinised nature of violence, rooted in the machismo that dominates Salvadoran society’.[25]
[25] V López Calvo, & G Santos Pejic, ‘El Salvador: Truce For The Gangs, No Truce For Women’, Latin America Bureau, 19 March 2013 <>
The Christian Science Monitor reported in 2011 that ‘Femicides often seem to accompany the growth of organized crime’ and, in El Salvador, some are ‘directly linked’ to gangs. The high rate of murders and femicides in 2011 led then-Salvadoran Defense Minister General Munguía Payés to suggest ‘that some of the victims were involved in local drug sales’. One theory regarding the link between femicides and the drug trade is that ‘in a culture where females are sometimes seen as property, gangs use the killing and abuse of women to strike at their rivals’. The article also notes that women can be killed by gangs in order to send a message to rivals or to the government. Women’s rights groups, however, ‘have rejected this simplistic explanation, arguing that the killings reflect power relations between the genders more than organized crime’. Rights groups assert that women often make easy targets in areas beset by high levels of violence. Femicides, therefore, ‘may be an indicator less of organized crime than of the culture of violence that comes in the wake of organized crime’.[26]
[26] H Stone, ‘Violence against women rises in El Salvador’, The Christian Science Monitor, 24 May 2011 < <CX265462>
According to Ima Guirola, spokeswoman for the Women’s Studies Institute (CEMUJER), the ineffectiveness of state institutions, such as the police force and the prosecutor’s office, to investigate cases of violence against women means that ‘everything is blamed on gang violence or other kinds of problems that do not reflect what is really happening’.[27]
[27] E Ayala, ‘Impunity, Machismo Fuel Femicides in El Salvador’, IPS News, 10 April 2013 <>
The Tribunal has also given particular regard to the following information from the UNHRC Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from El Salvador (March 2016):
Gangs in El Salvador reportedly perceive a wide range of acts by residents of the area under the gang’s control as demonstrating ‘resistance’ to their authority. Acts commonly construed as challenging a gang’s authority reportedly include but are not limited to: criticizing the gang; refusing a request or ‘favour’ by a gang member; arguing with or looking mistrustfully at a gang member; refusing to participate in gang activities or to join the gang; rejecting the sexual attention of a gang member having (perceived) links with a rival gang or a zone controlled by a rival gang; refusing to pay extortion demands wearing certain clothing, tattoos or other symbols, participating in civil, religious or other organizations viewed as undermining the gang’s authority; and passing on information about the gang to rivals, authorities or outsiders. Most perceived contraventions of these gang-imposed rules are dealt with severely: individuals whom the gang members suspect of resisting their authority are reported often to be killed without prior warning, although sometimes the killing is reportedly preceded by threats and/or other attacks against the person concerned.[28]
[28] AAT Folio 2018-2019; a copy of the guidelines is on the Tribunal’s file: Folio192-2015.
Although the rate of femicide is higher in El Salvador than anywhere else, the proportion of femicides that make up the overall murder rate is not sufficiently high to find that there is a real chance that the applicant would be subjected to such harm in circumstances where she has no family and no involvement in gang activity in El Salvador. Reuters reported in November 2013 that ‘femicide rates are part of high levels of general violence in many countries in Central America’, including El Salvador. Women in such countries ‘can get caught up in organised crime and gang violence’, and are often killed by gang members to settle scores with rivals, send a message to male relatives, or as retaliation for rejecting sexual advances.[29]
[29] Moloney, A 2013, ‘Struggling with femicide and impunity for crimes against women in Central America’, Thomson Reuters Foundation, source: Reuters, 25 November <

Although the rate of femicide is higher in El Salvador than anywhere else, the proportion of the overall murder rate is not sufficiently high to find that there is a real chance that the applicant would be subjected to such harm in circumstances where she has no family and no involvement in gang activity in El Salvador. The country information regarding violence against women indicates that this is frequent, however that it is most often at the hands of male family members or gangs, neither of which the applicant has contact with in El Salvador.
Based on the country information above and the applicant’s accepted circumstances as a single woman, who is not a criminal or gang member or with a family member who is a gang member, the applicant does not face a real chance of femicide or being subjected to forced sexual or physical ill-treatment arising from the rejected advances of gang members if she were to return to El Salvador.
The Tribunal further notes the applicant did not advance fears of femicide or other serious harm arising from domestic or intimidate partner violence or the lack of internal protection from such crimes from the authorities. For completeness, while such non-gang related gender based harm is a serious problem in El Salvador, the Tribunal finds that the applicant, does not face a real chance of serious harm arising from domestic violence, if she were to return to anywhere within El Salvador, now or into the foreseeable future.
Based on these findings about the applicant’s gender, marital and socio-economic status, the applicant does not have a well-founded fear of persecution for a Convention reason on this basis.
Perceived to be wealthy returnee
The Tribunal accepts that wealthy Salvadorans and wealthy returnees have a membership of a particular social group. It is also accepted, as the applicant has claimed, that Salvadoran returnees and their family members can be imputed with the same membership for the Refugees Convention purposes and that has a chance of being imputed as a wealthy returee or for some other related Convention reason.
The Tribunal, however, has been unable to find any country information that returnees, involuntarily or otherwise, are perceived to be wealthy and are targeted as such.
The Tribunal does not accept that the applicant will face a chance of serious harm based on being perceived to be wealthy if she were to return to El Salvador now or in the reasonably foreseeable future.
In making this finding, the Tribunal makes a further finding that real chance of serious harm arising from generalised violence throughout El Salvador is not for the essential and significant reason of the applicant’s accepted membership of a particular social group as someone who is imputed as a wealthy returnee or any other related Convention reason, if she returns to El Salvador pursuant to s.91R(1)(a).
Accordingly, the applicant does not have a well-founded fear of persecution for a Convention reason on this basis regarding real and perceived economic circumstances if she were to return to El Salvador in the reasonably foreseeable future.
The applicant did not advance any further Convention reasons as the essential and significant reasons she faces a real chance of serious harm and the Tribunal is not required to further make out the applicant’s case for her.
Even when considering a combination of the applicant’s background, including her gender, her marital status, her socio-economic status and the arguments that she will be perceived to be a wealthy returnee, the Tribunal remains unsatisfied that the applicant will be targeted based on any Convention reason, as the essential and significant reason for that harm as required by s.91R(1)(a), if she were to return to her home country.
Having considered all the applicant’s dispositive claims, both individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.
Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
The applicant: Complementary protection criteria
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
As the ‘real chance’ standard is the same as the ‘real risk’ standard, the Tribunal has substantial grounds to believe the applicant, as a necessary and foreseeable consequence of departing Australia for El Salvador, has a real risk of harm based on the generalised violence and deteriorating insecurity outlined in the country information above, notwithstanding the operation of s.36(2B).
The Tribunal accepts that the harm faced by the applicant amounts to being significant through frequent psychical harassment and the infliction of severe pain and suffering, both mental and physical, through extortion, theft and threats of physical harm and kidnapping by criminal gangs for ransom.
Notwithstanding s.36(2B), the Tribunal is satisfied that the applicant faces a real risk of the harm that amounts to significant harm by being subjected to cruel and inhuman treatment and punishment, as defined in s.36(2A)(d) of the Act
Section 36(2B) qualifies s.36(2)(aa) by setting out three circumstances in which there is taken not to be a real risk that a non-citizen will suffer significant harm in a country. In order to find that an applicant meets s.36(2)(aa), decision-makers will need to be satisfied that none of these circumstances exist. The circumstances are:
a.where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm, pursuant to subsection.36(2B)(a); or
b.where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm, pursuant to subsection.36(2B)(b); or
c.the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally, pursuant to subsection.36(2B)(c).
The Tribunal accepts that it would not be reasonable to relocate the applicant to a different area of El Salvador as the appreciable risk of significant harm of generalised violence persists throughout the applicant’s country of reference. Based on the country information whereby El Salvador is beset with unacceptable levels of violence and life-threatening insecurity, the Tribunal finds that the applicant could not obtain from an authority of the country sufficient protection from generalised violence if the applicant returned to any area of El Salvador, including her home area.
In BBK15 v MIBP[30], it was noted that the then Tribunal Member was correct to draw attention to a circumstance where a real risk of harm faced by a visa applicant is a risk shared by the general population, rather than one to which the visa applicant particularly is exposed in some individual or personal sense and upheld that the appellant was not more exposed to real risk of significant harm. A risk shared with the general population is taken not to be a ‘real risk of harm’ for the purpose of s.36(2)(aa).
[30] [2015] FCA 680
The Tribunal has already made specific and cumulative findings that it does not accept the applicant will be targeted for any Convention reasons. These are the same risk factors the Tribunal has considered under the complementary protection criterion. Based on the Tribunal’s assessment of the country information and the applicant’s accepted personal circumstances, none of these risk factors, neither specifically nor cumulatively, substantially elevate or heighten the applicant’s risk of significant harm arising from gang related generalised violence over and above the general population.
The Tribunal makes further findings that the risk of significant harm faced by the applicant, who has not claimed to have broken any law or to have any other residual claims to consider in this review, is not one faced ‘personally’ by the applicant or is particular to her or that she faces a risk of differential treatment due to any of the accepted characteristics that distinguish her from the rest of the population. Instead the risk of significant harm faced by the applicant is attributable to her membership of the population of El Salvador and is shared by that population group in general.
Accordingly, as there is not taken to be a real risk the applicant will face significant harm in her country of reference, as the Tribunal is satisfied the real risk is one faced by the population generally and not faced by her personally, pursuant to s.36(2B)(c), if she were to be removed from Australia to El Salvador.
Based on the above findings regarding s.36(2B), the Tribunal is not satisfied, having considered her claims individually and cumulatively, there are substantial reasons for believing there is a real risk the applicant will suffer significant harm if removed from Australia to El Salvador.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
[The second-named applicant]: well-founded fear of persecution for a Convention Reason
Having reached the finding that [the second-named applicant] has a real chance of serious harm, the Tribunal is required to reach the related finding that he has ‘a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion‘, as required by Article 1A(2) of the Refugees Convention
The Tribunal has considered whether the applicant will face a real chance of serious harm based on membership of a particular social group, namely as a [age]-year-old boy whose upbringing in an English-speaking, developed country will likely identify him as different from his peers in El Salvador and from whom he will stand apart.
The Tribunal is cognisant of, and accepts, the country information that the maras seek to recruit boys at or around [the second-named applicant]’s age, with the threat of death should they refuse. It appears likely, therefore, given his socioeconomic background, that [the second-named applicant] would be targeted for recruitment in El Salvador were he to return there now or in the reasonably foreseeable future.
Notwithstanding this, the Tribunal is not satisfied that, being so targeted, [the second-named applicant] would be identified for the reason of his membership of this social group. Put differently, the Tribunal does not find that a sufficient causal nexus exists between [the second-named applicant]’s membership of the social group defined and his being targeted for recruitment by the gangs.
Even when considering a combination of [the second-named applicant]’s background, including his age, gender, socio-economic status and the arguments that he will be perceived to be a ‘foreigner’ in his home country, the Tribunal remains unsatisfied that [the second-named applicant] will be targeted based on any Convention reason, as the essential and significant reason for that harm as required by s.91R(1)(a), if he were to return to his home country.
Having considered all [the second-named applicant]’s dispositive claims, both individually and cumulatively, the Tribunal is not satisfied that [the second-named applicant] is a person in respect of whom Australia has protection obligations under the Refugees Convention.
Therefore, [the second-named applicant] does not satisfy the criterion set out in s.36(2)(a).
[The second-named applicant]: Complementary protection
Having concluded that [the second-named applicant] does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
As the ‘real chance’ standard is the same as the ‘real risk’ standard, the Tribunal has substantial grounds to believe [the second-named applicant], as a necessary and foreseeable consequence of departing Australia for El Salvador, has a real risk of harm based on the generalised violence and deteriorating insecurity outlined in the country information above, and his susceptibility to gang violence and/or recruitment.
As set out above, s.36(2B) qualifies s.36(2)(aa) by setting out three circumstances in which there is taken not to be a real risk that a non-citizen will suffer significant harm in a country.
As with the applicant, the Tribunal accepts that it would not be reasonable to relocate [the second-named applicant] to a different area of El Salvador as the appreciable risk of significant harm of generalised violence persists throughout [the second-named applicant]’s country of reference. Based on the country information whereby El Salvador is beset with unacceptable levels of violence and life-threatening insecurity, the Tribunal finds that, as with the applicant, [the second-named applicant] could not obtain from an authority of the country sufficient protection from generalised violence if [the second-named applicant] returned to any area of El Salvador, including his home area.
In the present instance, however, the Tribunal is not satisfied the real risk outlined in respect of [the second-named applicant] is one faced by the population of the country generally and is not faced by him personally.
The Court’s reasoning in SZSPT v MIBP[31] suggests that the ‘faced personally’ element of this qualification requires the individual to face a risk of differential treatment because of characteristics that distinguish them from the general populace, Rares J holding that:
In my opinion, the natural and ordinary meaning of the exception in s 36(2B)(c) is that, if the Minister, or decision-maker, was satisfied that the risk was faced by the population of the country generally, as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk, the provisions of s 36(2)(aa) were deemed not to be engaged.
[31] [2014] FCA 1245
Adopting the terminology of Rares J, the Tribunal must assess the risk faced by the population of El Salvador generally, as established in the country information, as opposed to [the second-named applicant]’s claim for complementary protection based on his individual exposure to that risk.
Having regard to the evidence before it, the Tribunal concludes that [the second-named applicant]’s individual exposure to the risk meets the statutory threshold. In arriving at this conclusion, the Tribunal places weight upon the following factors:
a.[The second-named applicant] was born in, and has only ever lived in, Australia;
b.he will turn [age] years old [in] 2021 – credible country information places him in the middle of the age range of targets for recruitment by the maras;
c.[The second-named applicant] has not been raised in an environment equipping him to be situationally aware of, or to successfully avoid or resist, the maras – to adopt a colloquial submission made on his behalf, he is not ‘street smart’ in the manner of his peers in El Salvador;
d.he speaks little Spanish, and what little he does speak is spoken with an Australian accent, immediately marking him as a ‘foreigner’ or ‘outsider and therefore an ‘easy target’.
The cumulative effect of these factors, when taken with the whole of the evidence before the Tribunal, including the country information, places [the second-named applicant] at risk of differential treatment because of characteristics that distinguish him from the general populace.
Accordingly, the Tribunal is satisfied that [the second-named applicant] is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(aa).
SUMMARY
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 Creedon
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.
…

USAID Central America and Mexico Gang Assessment, Annex 1: El Salvador Profile (April 2006) page 13, accessed at 4 April 2017.

accessed at 4 April 2017; USAID Central
America and Mexico Gang Assessment, Annex 1: El Salvador Profile (April 2006)
page 13, accessed at 4 April 2017.

page 13, accessed at 4 April 2017.

Investigation and Analysis of Organized Crime (2015)
at page 4 accessed at 4 April 2017.

Investigation and Analysis of Organized Crime (2015)
at page 5 accessed 4 April 2017;
Óscar Martínez, Efren Lemus, Carlos Martínez and Deborah Sontag, 'Killers on a Shoestring: Inside the Gangs of El Salvador'
New York Times (20 November 2016) accessed at 5 April 2017.

accessed at 5 April 2017.

[2021] AATA 781

18 February 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Appeal