1709126 (Refugee)

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.