2004284 (Refugee)

[2020] AATA 5505

2004284 (Refugee) [2020] AATA 5505 (9 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2004284

COUNTRY OF REFERENCE:                   El Salvador

MEMBER:Sean Baker

DATE:9 November 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 9 November 2020 at 11:41am

CATCHWORDS
REFUGEE – protection visa – El Salvador – Federal Circuit Court remittal – imputed political opinion – threatened into low-level political activity – jailed and tortured, released after Amnesty International involvement – long residence in Australia on humanitarian program, visa cancelled after criminal offences – mother and daughter in Australia, no remaining relatives in home country – country information – end of civil war and government’s actions against gangs – fear of harm as elderly returnee with health conditions – mandatory COVID-19 quarantine – availability of adequate medical treatment – ability to subsist, access to social security – risks to population generally – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 3), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

EZC18 v MHA [2019] FCA 2143; [2019] FCCA 464

MZAAJ v MIBP [2015] FCCA 151; [2015] FCA 478

SZSPT v MIBP [2014] FCA 1245; [2014] FCCA 1388

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 February 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court. The matter is now before the Tribunal pursuant to an order of the Court.

3. The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant will be persecuted on return to El Salvador or, if not, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of his removal from Australia to El Salvador. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    History

11. The applicant was born in [Town], [Department], El Salvador on [Date].

12. In 1983 he became internally displaced and was assisted to settle in Australia under the Special Humanitarian Programme, under which he was granted a BF-C (transitional permanent) visa. He came to Australia [in] July 1983.

13. Due to criminal offences, this visa was cancelled under s.501 in September 2017. The applicant has been unsuccessful in having this cancellation overturned.

14. In his protection application the applicant said that he had been a political prisoner and had been jailed for two and a half years. He feared he would be killed, terrorised, degraded, tortured and killed by the government, the police, the army and the death squad because he had been a political prisoner. He said he would never be able to relocate and would not be assisted by the authorities because he is a political prisoner.

15. He provided:

    ·a certificate of baptism [in] October 2018 from [a] Church;

    ·a letter of support from the [Church] Pastor [A] dated 30 November 2018 noting the applicant’s regular attendance at Church whilst in detention and his baptism (although the date of baptism differs from the certificate);

    ·a letter of support from [Mr B], President of [an Organisation], which states that [Mr B] was imprisoned with the applicant in El Salvador, travelled to Australia with the applicant, has attempted to assist the applicant with his drug addiction, that if the applicant is removed to El Salvador he will have no economical or psychological support or family, that the applicant needs to remain in Australia with his mother, sister and daughter, and that [Mr B] will support the applicant; and

    ·a copy of his visa for travel to Australia

16. The applicant attended an interview with the Department. at that interview the applicant confirmed his place and date of birth. He confirmed his family in Australia and that he had no family in El Salvador. He explained his employment history in Australia.

17. He explained he feared return because he was a political prisoner and had been jailed in El Salvador. He said that when he was young he had distributed anti-government pamphlets several times at night. He was asked to do this by some older guys who threatened him to help them. He was arrested in 1981 by the authorities and charged with plotting against the government. He was detained as a political prisoner in prison for 26 months, during which time he was interrogated, tortured by a death squad and the police. He was released from prison [in] July 1983 after Amnesty International became involved and the El Salvadorian Government made an agreement to release all political prisoners. He went into an Amnesty International refugee camp for one or two weeks then departed El Salvador for Australia when he was [Age 1].

18. He said he would be unable to live and had no family there, and he needed to be here so he could bury his mum and so he could continue to be a father to his daughter.

19. He fears that if he returns to El Salvador, he will be detained by the government, put back in jail or killed because of his past history as a political prisoner in that country.

20. The delegate flagged with the applicant that the situation in El Salvador had changed since his departure, that the civil war ended in 1992 and there was a peace agreement, and no reports of political prisoners or detainees anymore. The applicant said they keep this secret, the situation is still the same, and the situation is a lot worse than it was before. The delegate discussed the criminal situation. The applicant reiterated he was a political prisoner.

21. The delegate accepted that:

    ·The applicant’s claims are consistent with country information at the time he claims he was detained and tortured.

    ·The applicant distributed pamphlets containing anti-government rhetoric on a small number of occasions in his hometown of [Town] when he was young.

    ·The applicant was arrested in 1981 by El Salvadorian authorities and detained as a political prisoner in for 26 months, where he subjected to mistreatment, including torture.

    ·The applicant has concerns regarding returning to El Salvador as a consequence of his previous detention and torture at the hands of the authorities in that country

22. However, the delegate found the fear of persecution was not well founded because:

    ·The applicant stated during the PPV interview that he was not a high-profile leader or organiser in respect of the anti-government group and he only undertook a leaflet delivery role because he was told to by older people in his community. […] this incident occurred almost 40 years ago, and the cited country information suggests the political landscape in El Salvador has changed significantly in recent years. When this was put to the applicant during the PPV interview, he indicated that the El Salvadorian authorities still persecute political opponents in secret and once someone has been a political prisoner they would always be at risk in El Salvador.

    ·The delegate gave significant weight to the cited country information, including the UNHCR guidelines for assessing refugees in El Salvador, which suggests that someone with the applicant’s particular profile would not be targeted in that country.

    ·The delegate accepted the applicant may have attended a small number of protests against the El Salvadorian government just after he arrived in Australia around 1983, but that these were almost 40 years ago, and the applicant has not spoken out against the El Salvadoran authorities since then.

23. The delegate went on to find that there was no real risk of significant harm:

    ·Whilst accepting there are serious issues relating to gang violence in El Salvador and that this has resulted in civilian deaths, the delegate found that even if this rose to the level of a real risk, they affect the population of El Salvador generally, not the applicant personally as outlined in 36(2B)(c) of the Act.

    ·The delegate found that the authorities have taken significant action in respect of gang violence and the homicide rates have fallen. The delegate was satisfied the applicant does not have a profile that would attract interest from gang members, or the police and the applicant’s home area is free from gang related issues.

    ·The delegate accepted that the applicant takes medication for anxiety and a [particular] condition, but his health conditions had allowed him to conduct a normal daily life.  

    ·Country information suggests the health system has improved substantially in El Salvador, albeit from a low base and that basic medical health and medicines are available for all citizens.

    ·The delegate considered the applicant’s ongoing health condition in terms of whether the absence or inadequacy of medical treatment in El Salvador would amount to cruel or inhuman treatment or punishment or degrading treatment or punishment. The delegate found there would not be intent by the medical professional or the El Salvador government to inflict pain or suffering or cause extreme humiliation even if the treatment the applicant receives is of a lesser standard than in Australia. 

    ·The delegate considered that the stress of returning to El Salvador may exacerbate the applicant’s symptoms and his ability to access medical treatment in El Salvador for his condition. The delegate noted his family was in Australia but noted the applicant spent significant periods living away from his family whilst being incarcerated in Australia and that it may be possible for his family members to move back to El Salvador with the applicant once he becomes established there. 

24. The previous tribunal held a hearing. At that hearing the applicant made claims consistent with the above.

25. The previous tribunal found in relation to the well-foundedness of the applicant’s fear of persecution that the applicant was a generally credible witness who was misinformed about the current situation in El Salvador, and that Tribunal relied on the independent country information regarding significant socio-political change in El Salvador since the early 1980s, to be not satisfied that the applicant faced a real chance of being persecuted in the reasonably foreseeable future in El Salvador for reasons of “political opinion”, either actual or imputed. The Tribunal found that the presence of gangs, the applicant’s health, criminal or family issues did not give rise to a real chance of being harmed, in particular finding that there was no real chance of him being re-prosecuted in El Salvador, nor that he would face discrimination amounting to persecution for reasons of being a member of a “particular social group” such as might be characterised as former criminals.

26. In relation to the real risk of significant harm, the previous Tribunal found that the applicant’s claims to complementary protection are for the most part the same as his refugee status claims, and since his refugee claims failed due to a failure to meet the “real chance” test, they can no more succeed as complementary protection claims, considered his claims in relation to El Salvador’s gang culture, but found that the harm he feared is harm faced by the population generally, and with regard to [the applicant]’s health and family circumstances, his claims about detriment potentially suffered in the event of removal to El Salvador did not raise any intentional element and thus did not involve significant harm as exhaustively defined In the Act.

27. The Federal Circuit Court remitted the matter to the tribunal on 14 February 2020 on the basis that ‘there was before the previous Tribunal, and the Tribunal understood there was before it, claims based on the applicant’s health and family circumstances that identified the harm arising from those circumstances to include the arbitrary deprivation of life. The Tribunal considered or purported to consider those claims, including the claim to the extent it relied on the arbitrary deprivation of life, and did not accept those claims because the claims did ‘not raise any intentional element’. The Tribunal proceeded on the basis that the notion of arbitrary deprivation of life required an intention to inflict harm and therefore made a jurisdictional error.’

28. The applicant has provided a detailed statement in which he says:

    ·His mother left his father when the applicant was nine years old because his father had been touching the applicant inappropriately. They went to San Salvador for a while and then returned to [Town], his father had left town. The applicant went to school for a year or two and then worked as [an Occupation] and [did a job task]. He was arrested when he was around [Age 2] and was bashed and tortured.

    ·He fears for his life if he returns, because he will always be a political prisoner.

    ·[Town] is a small place and the people who caught him could still know him. If he was sent back there is no way he would return to [Town].

    ·He doesn’t know much about what happened in El Salvador after he left.

    ·He is a lot older now, nearly [Age 3], he has no family and doesn’t know anyone there. He does not think he would be able to find work there. He has no money or savings. If he returns he would be on the streets and be a target for gangs or the police. He would stand out because he has no family and nowhere to go. He would look and sound like a stranger.

    ·He does not have any ID and fears he would be pulled up by the police.

    ·His health is poor, he has [particular] issues and takes medication and he has sleeping pills. He sees a counsellor. He has been hospitalised twice since being in detention and he fears his health would worsen if he returns. He would not be able to afford medication. COVID-19 would also be a problem if he returned, quarantine would be difficult.

    ·He worries about what will happen to his daughter if his mum dies.

29. A submission was provided from the applicant’s representative. This summarised the applicant’s background and his claims.

30. It claimed that he has a well-founded fear of persecution in El Salvador for reasons of his membership of the particular social group ‘deportees’. It was further claimed that there is a real risk he would suffer significant harm as a necessary and foreseeable consequence of his removal from Australia to El Salvador.

31. The submission sets out country information on gang violence levels in El Salvador, quoting from the UNHCR Eligibility Guidelines and other reports, and dealt with an issue raised by the delegate and the last tribunal, that gang presence in [Town] may be lower than other areas.

32. The submission discusses whether the risks faced by the applicant are faced by him personally, arguing he is at risk because of his personal circumstances of being a deportee, having spent most of his life in Australia, having left El Salvador in the 1980s, and his lack of connections or support. It argues that the finding of the previous tribunal that the risk faced was harm faced by the population generally is incorrect.

33. The submission goes on to claim that there is a real risk the applicant will suffer arbitrary deprivation of life arising from his health and inability to subsist, and sets out that the Court remitted this matter on the basis that there is no requirement that such harm be intentionally inflicted. It is argued that the applicant’s personal characteristics place him at real risk of being arbitrarily deprived of his life if returned, in the context of the coronavirus crisis.

34. Finally, the submission details the lack of state protection for the applicant and that he is unable to relocate as to do so would not be reasonable in all the applicant’s circumstances.

1. A STARTTS Psychological Assessment Report dated 14 January 2020 was provided. This states that the applicant reported the following:

   Symptoms of depression - Feelings of sadness and loneliness, sleep disturbances (nightmares and sleep averaging 3-4 hours per night), low energy and fatigue and feelings of guilt and helplessness.

   Symptoms of PTSD – Intrusive recollection/ thoughts relating to past traumatic experiences, avoidance and hyper- arousal (difficulties falling asleep and disturbances from nightmares).

   Medical health is overall good/ no medical issues or concerns relating to his physical health

   Drug and alcohol use - After his arrival in Australia, he said he experimented with drugs like heroin.

   [The applicant] reported that he has been prescribed Seroquel to deal with his anxiety and restlessness. Seroquel (Quetiapine), is an atypical antipsychotic used for the treatment of schizophrenia, bipolar disorder, and major depressive disorder.  [The applicant] also mentioned that he has been prescribed Suboxone. Suboxone is a prescription medication that combines buprenorphine and naloxone and is used to relieve symptoms of opiate withdrawal.

   Psychiatric history – N/A

   The Hopkins Symptoms Checklist (HSCL-25) and the Harvard Trauma Questionnaire {HTQ- 16) suggest that his reported symptoms are currently clinically significant. [The applicant] reported that he did not experience any suicidal ideation on the day of the assessment. He confirmed that he also did not have a history of suicidality.

   The assessment summary and recommendations are extracted below: 

   [The applicant] presented as anxious and helpless with an underlying low mood. He reported and presented with symptoms that are characteristic of Depression, Anxiety and Post traumatic Stress Disorder (PTSD). His responses on the HSCL-25 and HTQ are consistent with the above formulation.

   [The applicant] was not suicidal at the time of the assessment. However, in the context of his predicament if there is a change in his presentation or further deterioration in his symptoms he will need to be reassessed for suicidality.

   Growing up in an environment of poverty in the absence of a male role model in his early years may have been challenging for [the applicant]. Arriving in Australia as a young person around [Age 4] years of age, on his own is likely to have had a significant impact on [the applicant] delinquent behaviours. Hence, he is likely to benefit from longer term therapy, including trauma informed interventions when more willing and ready to explore details of his past, particularly his reported experiences of being abused by his father.

   In the interim, [the applicant] has requested and is likely to benefit from supportive counselling that could provide him with an opportunity to ventilate his feelings and better manage his emotions related to his worries about the prospect of being separated from his daughter and not being able to offer support to his elderly mother. He is also likely to benefit, if encouraged, to continue to participate in activities at the [location].

2. In a further submission on 23 September 2020, a list of medications for the applicant was also provided.

   The hearing

3. At the hearing the applicant gave evidence consistent with his prior evidence. He gave compelling evidence of his experiences when he was detained, sent to jail, and of his release through Amnesty International, his brief period in an IDP camp and his travel to Australia. He said he had only handed out the pamphlets at night time a few times and only because he was threatened to do so. He said he had been charged with political involvement. He said when he came to Australia he did some [activity] with people about the situation in El Salvador at that time. He said he did this in 1983 – 4 and then left as he didn’t want to have anything to do with it anymore as he was getting a bit scared.

4. When asked what he feared he said he feared the police and death squads, they still had his name in their records that he was a political prisoner and he will always be a political prisoner in their eyes. I asked if, when he was released from prison in 1983, this had been because he had finished his sentence. He said there was no sentence, there was a movement to release all the political prisoners from jail, no one had a set time, everyone was in there indefinitely.

5. The applicant said that in addition to these fears, he would be a target of gangs, he would be on the street with no family to turn to. He said he was worried if he went back he would be finished.

6. He said he was also worried about his mother; she was on the disability support pension and he needed to be here to support her.

   Country information

7. I discussed with the applicant country information and noted that this was consistent with country information he had discussed with the previous tribunal and the delegate. I noted to the applicant that as had been discussed with him previously, the situation in El Salvador has changed considerably since he departed. The civil war concluded with a peace agreement in 1992. According to credible international reports, there were no reports of political prisoners or detainees and despite efforts to provide amnesty to perpetrators of atrocities during the war, the current president, Bukele, has opposed these proposals and appears committed to bringing perpetrators to justice.[1]

   [1] United States of America Department of State, 2019 Country Reports on Human Rights Practices: El Salvador, 11 March 2020,

8. I explained to the applicant that I may infer from this information that he would not be harmed or imputed to be a political prisoner on return, and will not be harmed or harassed by the current government on this or any related basis, and may also infer that those who were involved in his abduction and detention have been jailed or charged, or would not be willing or able to harm him, even if they were able to recall who he was some 40 years later.

9. The applicant responded that regardless whether those people were still alive, his name was on their records, he will always be a political prisoner, he will always be against the government. He said in addition he would be a deportee so he would be much more of a target. He said these reports are not all of what they say: some of the information might be true, but when it comes to his integrity, he is a target, he didn’t think anyone in jail for political reasons has gone back and lived, and if they had it was because they had family to stay with.

10. I discussed with the applicant gang violence in El Salvador. I noted that it is accepted that there is gang violence in El Salvador, with gangs committing murder, extortion, kidnappings and other violent crimes directed against police, judicial authorities, the business community, journalists, women, and members of vulnerable populations.[2]

    [2] United States of America Department of State, 2019 Country Reports on Human Rights Practices: El Salvador, 11 March 2020, >

    However, information indicates that the height of this gang violence was 2015, and gang violence has steadily declined since then, with the international crisis group stating that homicide rates have plunged since 2015, which may be partly attributed to the efforts of Bukele’s strategy, the Territory Control Plan (under which, I note, [the] Department was a prioritised municipality), as well as decisions by the gangs to reduce the homicide rate. It is worth noting that the sharp decreases in homicides have been accompanied by steep decreases in disappearances and other gang crimes. The rate of violence appears to be continuing the downward trend despite a brief flare up of violence in April 2020, whilst acknowledging that the COVID-19 crisis put extraordinary pressure on the country and the government.[3] I noted that more recent reports appear to indicate that despite the health crisis, the rate of homicides has continued to decline.  In 2019 there were 2, 383 homicides, a 28.7% drop from 2018, translating to 36 deaths per 100,000.[4] This dropped further to only 697 murders from January to July 2020.[5] Analysis suggests that this is in some part because the gangs have chosen to reduce killings, which may point to a durable reduction.[6] I noted that country information also indicated that at the height of the gang violence in 2015, 48% or almost half of victims were young males between 15 and 29 years.[7]

    [3] International Crisis Group, Miracle or Mirage? Gangs and Plunging Violence in El Salvador, REPORT  81 / LATIN AMERICA & CARIBBEAN 8 JULY 2020, UNIVISION Y EFE, ‘El Salvador no registró ningún homicidio el día 4 de enero’, Univision Noticias, 5 January 2020, Robbins, S, Ávalos, HS, Homicide Drop in El Salvador: Presidential Triumph or Gang Trend?, InSight Crime, 24 September 2020, Papadovassilakis, A., Are El Salvador’s Gangs Behind Historic Murder Drop? InSight Crime, 20 January 2020, Robbins, S, Ávalos, HS, Homicide Drop in El Salvador: Presidential Triumph or Gang Trend?, InSight Crime, 24 September 2020, El Salvador Sangra, Robbert Muggah, EL PAIS, April 2, 2016,

11. I explained that I may infer from this information that the danger of killing, abduction, extortion and other serious or significant harm from gangs has significantly lessened and may no longer reach the level of a real chance or a real risk of harm. The information may indicate that these changes are durable.

12. The applicant responded that he did not believe that this could be the case, he thought that some of the reports may be invalid or falsified and untrue. The applicant said that he would stand out, he didn’t want to take a chance, because of his age the gangs would extort him.

13. I discussed country information about the situation for returnees in El Salvador. I noted that I had had regard to the UNHCR guidelines referred to in the submission, but I noted that the guidelines were drafted at the time of the highest rate of homicides in El Salvador, and that the guidelines detail that international protection may be available to ‘certain returnees from abroad’ but reading further it is clear that the guidelines refer here specifically to returnees who return from abroad with financial resources.[8]

    [8] UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from El Salvador, March 2016, HCR/EG/SLV/16/01,

14. The applicant said he agreed.

15. I noted also that the reports cited in the submissions and that I had seen, generally refer to returnees from the United States of America. I noted the literature that El Salvadorian gangs have links to gangs in the USA and it may be that the danger for returnees may be partly due to these linkages.[9]

    [9] Borger, J., ‘Fleeing a hell the US helped create: why Central Americans journey north’, 19 December 2018, the Guardian,

16. I explained that I was therefore not sure that these reports support a claim that the applicant, as a returnee from Australia (as opposed to the USA), with little or no money, would be targeted for harm as a returnee or as a returnee perceived to have money. I noted that taken with the information already discussed about reduction in violence, I may infer that the risk to him, even accepting the factors that it is claimed would set him apart on return, may not lead to him being seriously or significantly harmed by gangs or anyone else for reasons of him being a returnee or any associated reason.

17. The applicant responded that he was more of a target if he had financial resources, but he would always be a target, there would not be a doubt and he was pretty scared to go back.

18. Alternatively, I explained, I may not accept that him being a returnee or any of the other characteristics claimed will lead to a differential treatment of him by gangs or anyone else, and as below may find that this is a risk to the population generally, not to him and his individual exposure to that risk.

19. He said he would definitely be targeted. He was worried he would be facing the consequences of being harmed. He is very vulnerable as someone who has nowhere to go, someone who has no money. He said the police would not be able to protect him.

20. I discussed the applicant’s health. I noted that I accepted the information about his mental health and physical health. I noted that I accepted that the health system is poor in El Salvador and that conditions if he was returned now would include him being mandatorily quarantined because of the COVID-19 pandemic.

21. I explained that I may not accept that there is a real chance or a real risk of him suffering serious or significant harm on this basis, however because I was not sure that I accepted that he would acquire COVID-19 from quarantine or the community, I may consider this too speculative to be a real chance or real risk. I may not accept that he would suffer other harm that would lead to him being seriously or significantly harmed.

22. I explained to the applicant that it had also been held that arbitrary deprivation of life does not concern the consequences of scarce medical resources.[10] I noted further that there is a need for an intentional or deliberate act or omission that results in another person being deprived of their life.[11] The applicant said that he was afraid and he thought his health would suffer if he had to return.

    [10] MZAAJ v MIBP [2015] FCCA 151 (upheld on appeal: MZAAJ v MIBP [2015] FCA 478.

    [11] EZC18 v MHA [2019] FCA 2143; EZC18 v MHA [2019] FCCA 464.

23. I explained to the applicant that there was a further and broader concern I wanted to raise. I explained this was about his claims relating to health and his claims more generally. I explained that where considering complementary protection, there is taken not to be a real risk that an applicant will suffer significant harm in a country if ‘the real risk is one faced by the population generally and is not faced by the applicant personally’: s 36(2B)(c). I explained to him that I understood that as requiring me to determine whether the risk is faced by the population of a country generally as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk.[12] I explained that this had been expressly considered in relation to the risk of harm from inadequate medical treatment.

    [12] SZSPT v MIBP [2014] FCA 1245 at [11]–[13]; SZSPT v MIBP [2014] FCCA 1388 at [15].

24. I explained that I may infer that he would not face a real chance or a real risk of serious or significant harm, but that even if I accepted he may, I may find that such harm is suffered by the population generally. I noted that I was also not sure that he would face arbitrary deprivation of life as I understood that term for any other reason on return to El Salvador.

25. The applicant responded that he would not be treated as any special person, he would have to come up with his own resources to pay for medical treatment and I didn’t have any, he had no money at all.

26. I discussed with the applicant country information about the capacity to subsist in El Salvador. I noted that there was information which indicates that El Salvador has a universal social protection scheme, under which the government provides support for health, food, income security and training.[13]

    [13] International Labour Organization, Reducing inequality through universal social protection, August 2015,

27. I noted that I may infer from this information that he would not be homeless and would be able to subsist. The applicant responded that he might be able to subsist but he didn’t think he would be succeeding.

28. I asked if he thought he could work in El Salvador and he said he didn’t think so. I noted that he had worked in Australia in labouring and process work and that there may be scope for that kind of work in El Salvador. He said there may be, but he was not that keen on getting a job, people don’t make enough money, people are paying rent and if gangs know you are working they will take some of it. He would be a soft target. He said he was worried about being sick. He said he would be a nobody there and people wait all day to work there and people younger than him or more qualified would get jobs.

29. I asked the applicant if he wished to call his mother as a witness, as he had given contradictory responses to this. He said he would not call his mum as she would need a bit of time to get organised and he knew she would say something about compassionate grounds and she will cry and walk off, and it was hard because of the language barrier.

    Submissions

30. The applicant’s representative made submissions. She stated that the risk the applicant would face from gangs in El Salvador would be faced personally, this requires some characteristic that places him at a heightened risk, it does not require targeted harm or that the gangs have a reason to target him. As a deportee he would be at risk of targeted harm, even below that there is a further characteristic, unfamiliarity with the country, very evidently he is a foreigner, which would indicate that if someone does not have a good understanding of gang control that can put them in harms way. He has an inability to protect himself given he has been away so long.

31. She claimed that he may be perceived as a returnee with resources simply because he was returned from a wealthy country and has family here, he may be perceived as having resources.

32. She noted that whilst many reports relate to returnees from the USA, this is to be expected given high numbers from El Salvador, and returnees can face harm for reasons connected to their reasons for fleeing, but it also can be the mere fact of their extended absence and deportation and arrival making it clear who has been deported, someone who has arrived as a deportee can place someone at a heightened risk of harm.

33. She explained the country has had a problem with gang violence that has been since the civil war, that fluctuating levels of homicides in a year or a few years should be approached with caution, it is clear from reports before the tribunal that gangs hold a high level of control, and maintain that control through threats and extortion, the reports before tribunal reflect there is a focus on rates of homicide but other forms of crime go underreported, can be understood that being in vicinity to police officers for example becomes a reason to be threatened by gangs, lower levels of threat or extortion are likely to be underreported, and this is relevant to the question before tribunal of the types of harm such as extortion or threats, which may amount to serious harm given his psychological vulnerability or can constitute cruel, inhuman or degrading treatment.

34. The question of home area was discussed, and I noted that given his extended absence I did not find it helpful to consider whether or not he would return to [Town] but may consider he would return to and may remain in San Salvador.

35. The representative submitted that there was a high level of gang activity and violence in San Salvador and the UNHCR guidelines reflect that San Salvador had the highest rate and the level of criminal activity remains extremely high.

1. She submitted that when considering the question of arbitrary deprivation of life, the treatment and context of COVID-19 measures, those measures in place present an actual different circumstance where he would be required to be quarantined in conditions inadequate and with a higher risk of infection, the place of quarantine could be a risky place to be and then his health conditions, where he is in the category of an older man with existing complaints can count as an act for arbitrary deprivation of life, that someone could be detained in a place that exposes them to a risk of contracting virus, there is a higher risk than to other people.

2. In terms of the question of subsistence, he would face particular barriers due to his status as a deportee or foreigner, as someone who presents as pretty Australian, less likely to get a job, somebody who is a bit out of the usual.

3. Whilst it may be that El Salvador has provisions for public support the country information establishes that the health system is not coping in the context of the pandemic and internal displacement, it could also be appropriately considered that he is akin to an IDP and the information is that the El Salvadoran government has not been responding to an appropriate level to the crisis of internal displacement, social and medical needs of IDPs, and this presents a very significant challenge to the applicant and there is a lack of ability to subsist, the relevant nexus is related to his particular social group as a deportee.

   Post hearing submission

4. The submission noted that a statement from the applicant’s mother was attached and that her account of the circumstances in her country of origin, and belief about the risk to the applicant if returned, should be given weight in support of his protection claims.

5. The submission argued that the reports the above country information was based upon demonstrated:

   a. The reports warn that the reduction in violence over the last year is fragile – being attributable to a decision by the gangs rather than government measures – and does not provide a basis to find the lower rates of violence to be durable for the foreseeable future.

   b. The ICG report focuses primarily on homicide rates; and there is evidence that other forms of harm – including property-motivated assaults, and extortion – continue.

   c. The reports do not establish that the situation in El Salvador has presently improved to such a degree that the risk of serious or significant harm to [the applicant], in his personal circumstances, is remote.

6. The submission argues that the homicide rate in El Salvador was extraordinarily high, so the reductions must be seen in that context. The submission devotes considerable time and provides country sources to argue that the reduction in violence may be because of decisions made by the gangs themselves, and/or secret agreements between elements of the government and the gangs. The COVID-19 crisis has demonstrated the fragility of the reduction. Nothing guarantees that the decline represents permanent progress instead of a shirt lull. The stranglehold of the gangs in San Salvador is also highlighted. There has been no reduction of gang activity or control. It argues that ‘To find in view of the ICG Report that the change is durable, would be to rely on a durable change in the calculus of gangs as to their patterns of use of violence – rather than on the state addressing organised crime and gang control. This would be an unsafe assessment to make, where the ICG Report itself highlights that the reason for that present calculation of self-interest by the gangs is not entirely clear and may quickly reverse course.’

7. The submission goes on to argue that other forms of harm including extortion, threats and property-motivated assaults, are continuing.

8. The submission then argues that the applicant is at risk of being a particular target for extortion or violence arising from his personal circumstances (his profile as a deportee or returnee, deportees are recognisable through the process of return, their way of speaking, clothes, lack of understanding of the unspoken rules, lack of family or connections, and will return to San Salvador, an area of higher violence) but that he is at additional risk because he would be returned to an area – San Salvador, which is particularly dangerous compared to the country as a whole, and would be less capable of avoiding or protecting himself from harm.

9. Due to his psychological vulnerability and extreme fear of return, other forms of harm may amount to serious and significant harm.

10. The submission concludes that the risk of [the applicant] acquiring COVID-19 through the process of return and mandatory quarantine leads to a risk of serious illness or death.

11. I have had regard to the statement from the applicant’s mother. Whilst I accept her genuine and heartfelt distress and concern, and I give these the appropriate weight, I note however that, like the applicant, she has not been in the country for over thirty years. I accept her concerns are genuine, but I place no weight on her claims in relation to the situation in the country given her period of absence and prefer the country information cited.

    Consideration

    For reasons of his political opinion

12. As did the delegate and the previous Tribunal, I accept that the applicant distributed anti-government pamphlets several times at night in his home area, because he had been asked/threatened by some older guys. I accept he was arrested in 1981 by the authorities and charged with plotting against the government, detained as a political prisoner in prison for 26 months, during which time he was interrogated and tortured by a death squad and the police. I accept that he was released from prison [in] July 1983 after Amnesty International became involved and the El Salvadorian Government made an agreement to release all political prisoners. I accept that he became an internally displaced person, went to an Amnesty International refugee camp for one or two weeks and then departed El Salvador for Australia when he was [Age 2]. I accept that in Sydney in 1984 he was involved with a political group in protests or [activity] which highlighted the situation at that time in El Salvador and other Central and South American countries. I accept that he left in 1984 as he didn’t want to have anything to do with it anymore as he was getting a bit scared. I find that since that time the applicant has not engaged in any further political activity.

13. I accept that the applicant has a strong subjective fear of return to El Salvador and that he fears he will be treated as a political prisoner. This is entirely understandable given what he was subjected to in that country.

14. However, the situation in the country he left more than 35 years ago has changed very significantly. As above, at the hearing I discussed with him the country information. Whilst I note the applicant’s considerable subjective fear in this regard, I find on the basis of the country information that the applicant will not be harmed for any reason connected to his leafletting in his home area, his detention and arrest and jailing as a political prisoner or his release and being placed in an IDP camp and coming to Australia. Whilst I accept that the applicant was involved in political activities briefly in Sydney, this was some 35 years ago and the regime at that time no longer exists and I do not accept there is any chance or risk he will be harmed because of his political activities in 1983-84 in Australia. Nor do I accept that there is any real chance or real risk he will be imputed with a political opinion contrary to the current government for any reason. I further find that those who tortured and mistreated him including members of death squads, police and other officials form the 1980s have either been jailed or are not in a position to harm him, nor do I accept they would recognise him.

15. I find on the country information before me that there is no real chance the applicant will suffer serious harm amounting to persecution for reasons of his actual or imputed political opinion from the authorities or former members of the death squads, police or other former authorities if he returns to El Salvador now or in the reasonably foreseeable future.

    For reasons of his membership of the particular social group deportee/returnee

16. I have carefully considered whether the applicant will suffer serious harm amounting to persecution for reasons of his membership of a particular social group, being deportees, or returnees or those deported from Western countries or returnees or those returned from a Western country who have lived in a Western country for an extended period.

17. I am willing to accept that such a group is cognisable. I accept that they may be identified, including by gangs and gang members, as their way of speaking or clothes identifies them as distinct from local people. I accept that the applicant, having lived in Australia for almost 40 years, would form part of this group on return. I accept that he would not understand the unspoken rules Salvadorans follow to protect themselves from gangs.

18. However, I do not accept that membership of this group, or these characteristics of the applicant, will lead to the applicant having a real chance of persecution.

19. As above the country information does not support a conclusion that the applicant will be harmed as a result of being a returnee. The country information also indicates that the applicant, as a returnee will be issued with temporary identity documents for use until he obtains permanent identity documents.[14] The country information also indicates that he will not face any official harm or discrimination because of his criminal offences for which he has been prosecuted and jailed in Australia.[15]

    [14] UN Human Rights Council, National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21* El Salvador, 4- 15 November 2019, Canada: Immigration and Refugee Board of Canada, El Salvador: Changes to and implementation of the Sole Identity Document (Documento Tnico de Identidad, DUI), 10 July 2008, SLV102871.E, available at:

    [15] Country Reports on Human Rights Practices for 2018 - El Salvador, US Department of State, 13 March 2019, Section 1.e.

20. There is no basis in the information before me to demonstrate that the authorities harm or seek to harm this group, however it is described. I do not accept that he will face any official difficulties as a returnee, or as a returnee with a criminal record in Australia, or as a returnee without an ID card.

21. I find there is no real chance of the applicant being harmed by state actors for his membership of this group(s).

22. The submissions and his claims are that the applicant will be threatened, extorted, physically harmed or killed, by gangs operating in El Salvador for reasons of his membership of this group(s) and that effective protection measures are not available.

23. The country information does not support a conclusion that deportees or returnees or those deported or returned from a western country who have lived in a western country for an extended period of time are harmed for this reason alone, per se.

24. The UNHCR guidelines are, when read in context, clear that people who may prima facie require protection include those in positions susceptible to extortion including, relevant to the applicant, ‘… returnees who return from abroad with financial resources; children and adults who receive remittances from family members who live and work abroad; …’[16] the Guidelines make clear that gangs are able to identify those who have or have access to such resources:

    Deportees and returning migrants who bring resources from overseas are also reported to be an identifiable target for extortion by the gangs and thus face heightened threats, as are children and other persons in El Salvador who receive remittances from family members living and working overseas.[17]

    [16] UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from El Salvador, March 2016, HCR/EG/SLV/16/01, p. 31 - 32; UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from El Salvador, March 2016, HCR/EG/SLV/16/01, p. 28; >

    The pre-hearing submission included further sources including the February 2020 Human Rights Watch report, the Internal Displacement Monitoring Centre report of 2018. The Human Rights Watch Report records the experiences of those deported from the United States and draws inferences from these experiences. The report notes that ‘people deported, through remittances sent to their families, often end up having noticeable assets compared to others,’ people deported are easily recognisable because of their financial resources, and there are reports of a number of deportees killed after they refused extortion attempts by gangs where these persons were deported with a little money, held assets or were setting up businesses with assets.[18]

    [18] Human Rights Watch, Deported to Danger, 5 February 2020, accessed at

25. I do not accept that the country information before me establishes that all deportees/returnees, or all deportees/returnees from Western countries have a real risk of harm from gangs or gang members. Read carefully, I consider that the country information indicates that those at risk on return are those who have financial resources either themselves, or from remittances back home. I appreciate that some country information claims that the perception of having resources is a risk factor, but I find that this is not supported in the information, in particular the recent Human Rights Watch report includes discussions with people who have access to resources. Additionally, the country information is clear that gangs are able to identify those with resources. This indicates to me that gangs are using forms of intelligence to determine those who have resources and then extort them.

26. It is the clear evidence of the applicant that he would return without financial resources, and that he would not have access to remittances from his mother or anyone else in Australia. I find that that gangs would be able to identify him as a returnee without resources and would not seek to extort or otherwise harm him.

27. To be clear, I find that the applicant on return would be a member of a particular social group of deportee/returnee from a Western country who has lived in a western country for many years. I do not accept that the applicant will be or will be imputed by gangs or anyone else to be a member of a particular social group of deportee/returnee from a Western country who has lived in a western country for many years and has access to financial resources. I find that the UNHCR Guidelines clearly set out that those who prima facie require protection are the latter. I appreciate that the UNHCR makes clear that people not within the latter group may also require protection.

28. I have carefully considered whether the applicant, as a returnee from a western country who has lived in a western country for many years and is returning with no financial resources will face harm. as above I do not accept that he will be extorted or otherwise harm for his actual or imputed access to financial resources. There is some indications in the country information and in submissions that returnees have been harmed by gangs in the past because the returnee is not familiar with the unspoken rules, speaks different form of Spanish or is not aware of colloquialisms, dresses differently, or in another way is considered to contravene the unwritten rules of the gangs. Nor do I accept that his behaviour or membership of this group or groups will lead to him being imputed with any anti-gang political opinion.

100.   I find that the chance of the applicant being harmed for this reason is remote and therefore not a real chance. This is because, as below, gang violence has changed very considerably in El Salvador. But it is also because I consider the applicant to have several characteristics that will mean there will be only a remote chance that he will be harmed by gangs or gang members. As I discussed at hearing, information indicates that at the height of the gang violence in 2015, 48% or almost half of victims were young males between 15 and 29 years.[19] This is strongly suggestive that persons such as the applicant as a considerably older male, has less chance of falling victim to killings from gangs in general. Whilst I have not found information on groups targeted for other harm from gangs, it appears logical that other forms of harm would also disproportionately be directed at young males. The other factor is his lack of access to resources, as above. I consider that these factors together indicate to me that the applicant will be of little interest to gangs or gang members and reduce the chance of him being harmed as a result.

[19] El Salvador Sangra, Robbert Muggah, EL PAIS, April 2, 2016,

101.   Given these findings I have not gone on to consider whether effective protection measures are available to the applicant.

102.   I find on my reasoning above that there is no real chance of the applicant being threatened, extorted, physically harmed or killed, by gangs operating in El Salvador for reasons of his membership of the group(s) deportees, or returnees or those deported from Western countries or returnees or those returned from a Western country who have lived in a Western country for an extended period.

Arbitrary deprivation of life

103.   Several other claims have been made by the applicant or on his behalf, including that he will suffer arbitrary deprivation of his life due to his health conditions and his family and financial circumstances, and that he will suffer harm including death because of the prevalence of COVID-19 in El Salvador when considered with his health circumstances and the requirement that as a returnee he be quarantined in dangerous and overcrowded quarantine facilities.

104.   These claims are addressed to the complementary protection criterion in the manner in which they are expressed but I note for completeness that there is no basis to claim that the applicant will face persecutory treatment for any of these reasons on return.

105.   In relation to his health conditions, family and financial circumstances, there is no conduct by a third party which has been identified or is cognisable, nor is there a basis to conclude that him being harmed on these bases would be systematic and discriminatory conduct. In relation to the quarantine measures and risk of COIVD-19 infection, I have reasoned below that there is no real risk of this occurring for the reasons expressed below. On the basis of that reasoning I find there is no real chance of this occurring.

106.   I find therefore that there is no real chance of the applicant suffering arbitrary deprivation of his life or any other serious harm due to his health conditions and his family and financial circumstances, or due to the prevalence of COVID-19 in El Salvador when considered with his health circumstances and the requirement that as a returnee he be quarantined in dangerous and overcrowded quarantine facilities.

Cumulative

107.   I have carefully considered the applicant’s claims cumulatively. As above I have accepted that the applicant was imprisoned and suffered serious harm on the basis of his actual or imputed political opinion in the past as well as brief political activities in Sydney many years ago, but that due to substantial and durable changes in the political system in El Salvador he faces no real chance of harm for these reasons from anyone. I have accepted that he is a member of a particular social group(s) conceptualised as deportees, or returnees or those deported from Western countries or returnees or those returned from a Western country who have lived in a Western country for an extended period but I have found he will not suffer harm for his membership of this group. I have considered the claims of his health and family and found there is no real chance of him suffering persecution as defined. I have considered his characteristics cumulatively and find that there is no real chance that applicant will suffer serious harm amounting to persecution for reasons of his actual or imputed political opinion, membership of any particular social group or any other reason by the authorities, gangs or gang members or anyone else on his return to El Salvador now or in the reasonably foreseeable future.

Complementary protection

108.   I have found above that the applicant will not suffer serious harm for reasons of his actual or imputed political opinion from the authorities, and I find on the same basis that he will not suffer significant harm on this basis.

109.   It is claimed that the applicant will face a real risk of significant harm from gangs and that this harm is faced by him personally because the applicant is at heightened risk of harm due to his personal circumstances, including: his extended absence from El Salvador, his status as a deportee, his age, his lack of family connection, and his lack of ability to establish himself or subsist.

110.   It is further submitted that he would be arbitrarily deprived of his life, due to his health and practical circumstances, particularly in the context of the COVID-19 pandemic.

Gang violence

111.    As I discussed with the applicant at hearing, I accept that there is gang violence in El Salvador, with gangs committing murder, extortion, kidnappings and other violent crimes directed against authorities, women, journalists and members of vulnerable populations.

112.    However, as I also discussed with the applicant at the hearing, gang violence has steadily declined since its height in 2015, including homicides but also other forms of violence.

113.   The post hearing submission contained well-argued points to demonstrate that the decline was not due wholly or in large part to the actions of the authorities but to decisions the gangs themselves made, that these decisions are inherently unreliable, and the reduction fragile, and that therefore the declines could not be relied on to find that the applicant would not face a real risk of harm from gang violence. Further, that other forms of violence continue.

114.   In relation to the claim that the reduction is fragile, the submission argued that the reduction must first be considered against the fact that the 2015 homicide rate in El Salvador was the highest in the world. The submission concedes that the decline in violence requires consideration, but posits that the causes are complex and unclear, and recent outbreaks underline the fragility of the achievement. The submission critiques the authoritarian streak of the Bukele government, that there is little or no connection between the reduction and the prioritised municipalities, that the power of the gangs remains, and discuses several claims that there may be an informal agreement between gangs or between the authorities and the gangs. I note however that these are only claims and have not been proven. The submission states that it would be erroneous to find that the change is durable because to do so relies on the calculus of the gangs as to their pattern of use of violence, rather than on the state addressing organised crime and gang control. Gangs have established and expanded control since the 1980s and the reduction is as yet far from secure or durable

115.   In this section the submission, in my view, does not deal with meaningfully with the fact that the decline in homicides and other gang violence is not only in the year since Bukele assumed office – the homicide rate has declined year on year since 2015, a five year trend. This is far longer than the ‘truce’ between 2012 – 2014. Even when considering that the 2015 high was shockingly, high, what this suggests to me is that the decline does have some level of durability and that the trend will continue. Whilst I appreciate that there are concerns expressed in the reports about the causes of the decline, this needs to be put in the context of that five-year decline. I appreciate that the decline may be due in part to decisions taken by the gangs, but I do not accept that this means the decline is not durable, given that the decline has proceeded from 2015 until now. I appreciate that the killings in April 2020 were of concern but appear to have been atypical and not to represent the trend. I do not accept either that the authorities have not played any role in the decline. Even if this was on the basis of an informal agreement with the gangs, which appears speculative at best, I do not accept that the authorities have not played some part in the reduction. Indeed, I consider a fair reading of the sources to indicate that there are many causes for the reduction. However, I return to the fact that the decrease has continued for some years. Indeed, other indicators appear to suggest a level of durability, such as the fact that despite the major health crisis of the pandemic, the rate of homicides has continued to decline. Having carefully considered the information before me and the arguments put, I do not accept that the reduction in violence is fragile.

116.   A related point was that other forms of harm such as extortion, threats and property motivated assaults are less reported and that extortion complaints increased in 2019. I accept this to be the case however, for the reasons above, I do not accept that there is a real chance or a real risk that the applicant will be extorted on return or in the reasonably foreseeable future. I do not accept that other violent crimes committed by gangs have not also declined, the country information discussed above indicates that homicides and other crimes such as disappearances have declined. I note that the post hearing submission cites an increase in perceptions of public safety.

117.   The post hearing submission argues that he will differentially be at risk because he will be returned to San Salvador, which is particularly dangerous compared to the country as a whole. I have carefully considered this argument but I do not accept that the applicant will face a real risk of harm amounting to significant harm from gangs or anyone else if he is returned to San Salvador, given my consideration of the information and arguments above about the decline in gang violence. 

Health, subsistence and family circumstances leading to arbitrary deprivation of life

118.   The applicant has claimed that because of his age, health and lack of family in El Salvador, he will be unable to survive and will be unable to subsist.

119.   At the hearing I discussed his health and noted that I accepted his health and mental health symptoms, including [paticular] issues, cholesterol, symptoms of depression, anxiety and PTSD, and that he is taking several medications. In addition, the applicant believes (and this is supported by her statement) that his mother will be very upset if he is removed to El Salvador, and he would be distressed by this and the prospect that he may never see her again. I noted that I accepted that the health system is poor in El Salvador and that conditions if he was returned now would include him being mandatorily quarantined because of the COVID-19 pandemic (discussed in more detail below).

120.   As I discussed with the applicant, the definitions of significant harm, including arbitrary deprivation of life, require an element of intentionality, and I might take the view that any harm arising from his health or family circumstances would not have the required intentional or deliberate act or omission, or some form of deliberate conduct that results in him being deprived of his life or suffering another form of significant harm. [20] I note that arbitrary deprivation of life does not concern the consequences of scarce medical resources or mental health claims.[21]

[20] EZC18 v MHA [2019] FCA 2143; EZC18 v MHA [2019] FCCA 464.

[21] MZAAJ v MIBP [2015] FCCA 151 (upheld on appeal: MZAAJ v MIBP [2015] FCA 478.

121.   The applicant responded that he was afraid and thought that his health would suffer if he had to return.

122.   I raised a further issue with the applicant in relation to his claims that medical treatment he may receive may be insufficient. I explained that where considering complementary protection, there is taken not to be a real risk that an applicant will suffer significant harm in a country if ‘the real risk is one faced by the population generally and is not faced by the applicant personally’: s 36(2B)(c). It has been held that the ‘faced personally’ element of this qualification requires the individual to face a risk of differential treatment, or because of characteristics that distinguish them from the general populace.[22] This approach has also been taken in relation to the risk of harm from inadequate medical treatment.[23]

[22] SZSPT v MIBP [2014] FCA 1245 at [11]–[15].

[23] MZAAJ v MIBP [2015] FCA 478 at [6] where the Court endorsed the Tribunal’s finding that the risk of harm was a risk faced by all Sri Lankans.

123.   I explained that I may infer that he would not face a real chance or a real risk of serious or significant harm, but that even if I accepted he may, I may find that such harm is suffered by the population generally. I noted that I was also not sure that he would face arbitrary deprivation of life as I understood that term for any other reason on return to El Salvador.

124.   The applicant responded that he would not be treated as any special person, he would have to come up with his own resources to pay for medical treatment and he didn’t have any, he had no money at all.

125.   I discussed with the applicant country information about the capacity to subsist in El Salvador. I noted that there was information which indicates that El Salvador has a universal social protection scheme, under which the government provides support for health, food, income security and training.[24]

[24] International Labour Organization, Reducing inequality through universal social protection, August 2015, United States Social Security Administration, Social Security Programs Throughout the World: The Americas, 2017: El Salvador,

126.   I noted that I may infer from this information that he would not be homeless and would be able to subsist. The applicant responded that he might be able to subsist but he didn’t think he would be succeeding.

127.   I asked if he thought he could work in El Salvador and he said he didn’t think so. I noted that he had worked in Australia in labouring and process work and that there may be scope for that kind of work in El Salvador. He said there may be, but he was not that keen on getting a job, people don’t make enough money, people are paying rent and if gangs know you are working they will take some of it. He would be a soft target. He said he was worried about being sick. He said he would be a nobody there and people wait all day to work there and people younger than him or more qualified would get jobs.

128.   On the information before me I find that the applicant will be able to subsist and access a basic level of medical care from the universal social protection scheme. I further find that he has good prospects of gaining employment if he wishes to do so, having worked in a variety of roles in Australia which are also available in El Salvador such as labouring and process work. I find that he will be able to access a level of assistance so that he will be able to subsist, and on the information before me I find that he will not be denied this level of assistance because of his age, his status as a returnee, his criminal history in Australia, his past historical imprisonment as a political prisoner or for any other reason.

129.   I therefore do not accept that the applicant will be unable to subsist, despite his age. I do not accept he will be homeless. I do not accept that he will be unable to access medical treatment. I do not accept that he will be denied medical treatment for any reason.

130.   Whilst I accept that life will be very hard for the applicant on return, that he will have no family support there, and that his separation from his mother and other family in Australia will lead to real and profound pain to him and his family in Australia, I do not accept that his family situation, either his lack of family in El Salvador or the fact his remaining family is in Australia and he may never see them again, constitutes any of the defined forms of significant harm.

131.   Even if it is the case that he will suffer arbitrary deprivation of life because of his health conditions and any inability to access appropriate treatment I find that he will not be denied any such treatment because of his age, his status as a returnee, his criminal history in Australia, his past historical imprisonment as a political prisoner or for any other reason. I find that any inability to access medical treatment will not have the required intentional or deliberate act or omission, or some form of deliberate conduct that results in him being deprived of his life or suffering another form of significant harm.

132.   In making these findings I have had regard to the Complementary Protection Guidelines, which state that while a particular individual must face a real risk in light of their specific circumstances, it is not necessary to show that the individual would be ‘singled out’ or targeted. But I place no weight on these guidelines as being inconsistent with the line of authority discussed above.

COVID-19/ Harm arising from COVID-19 quarantine

133.   It was argued at the hearing and in the post hearing submission that the applicant was at high risk of suffering death or serious illness if he contracted COVID-19, as an elderly person with health problems. His exposure to the virus would be significant in El Salvador. It was argued that in addition, he would be mandatorily quarantined and that the quarantine system in El Salvador would endanger him due to the spread of the virus in quarantine facilities and the poor management by authorities. It is argued that deportations were continuing from the United States bringing the very real prospect of further infected persons to the quarantine centres.

134.   As I explained to the applicant at hearing, I may not accept that there is a real chance or a real risk of him suffering serious or significant harm on this basis, because I was not sure that I accepted that he would acquire COVID-19 from quarantine or the community, I may consider this too speculative to be a real chance or real risk.

135.   The El Salvador government has put in place a range of measures to address the pandemic, including mandatory quarantine for people coming into the country, and that currently 35 people are in the quarantine centre.[25] The government instituted a range of lockdowns throughout the country.[26] In September the announcement of plans to refuse entry to persons flying into the country unless they could provide a negative PCR test no more than three days old.[27] I note that case numbers in the country have remained around the hundreds.[28]

[25] El Salvador government, COVID 19 national situation (Spanish), , KPMG, El Salvador Government and institution measures in response to COVID-19, 14 May 2020,

[26] World Aware, COVID-19 Alert: El Salvador Extends Nationwide Quarantine Orders and Movement Restrictions Through June 15,

[27] AP, ‘El Salvador to require negative COVID test to enter country’, 13 September 2020,

[28] El Salvador government, COVID 19 national situation (Spanish),  I accept that as a 60-year-old man with health issues, he would be more vulnerable than others if he were to contract COVID-19. However, the measures put in place by the authorities lead me to find that the risk of the applicant contracting COVID-19, either in quarantine, where I find he would be sharing quarantine only with a small number of people, admitted to the country who can demonstrate a negative test, or in the general population to be remote. I find that there is no real risk of the applicant being arbitrarily deprived of his life or suffering other significant harm in mandatory quarantine or in the general population if he returns to El Salvador now or in the reasonably foreseeable future.

137.   I have considered the applicant’s claims in relation to the claims he will suffer harm at the hands of gangs, as a result of his health and family circumstances, his age, claimed inability to subsist, the fact he will be mandatorily quarantined and his risk of serious outcomes if he were to contract COVID-19. Taking all of these circumstances into account I find that there is no real risk the applicant will suffer significant harm on return to El Salvador now or in the reasonably foreseeable future.

Conclusions

138.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

139.   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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

140.   There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

141.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Sean Baker
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.

…