2004284 (Refugee)

This matter concerned an applicant for a protection visa who had been granted a transitional permanent visa upon arrival in Australia in 1983 under the Special Humanitarian Programme. The applicant's visa was subsequently cancelled under s.501 of the Act due to criminal offences, and this cancellation was not overturned. The applicant claimed a fear of persecution upon return to El Salvador, alleging he had been a political prisoner, jailed, interrogated, and tortured by death squads and police after distributing anti-government pamphlets as a youth. The applicant had no remaining relatives in El Salvador and had lived in Australia for an extended period, with family members, including his mother, sister, and daughter, residing there.

The core legal issues before the Tribunal were whether the applicant would face persecution on return to El Salvador, or alternatively, whether there was a real risk of significant harm as a necessary and foreseeable consequence of his removal to El Salvador, thereby engaging Australia's complementary protection obligations under s.36(2)(aa) of the Act. The Tribunal was required to consider the applicant's past experiences as a political prisoner, his current circumstances in Australia, and the country information pertaining to El Salvador, including the end of the civil war, government actions against gangs, and the general risks to the population, particularly for an elderly returnee with health conditions.

The Tribunal affirmed the decision under review, concluding that the applicant did not meet the criteria for a protection visa. While acknowledging the applicant's history of being jailed and tortured in El Salvador, the Tribunal considered the country information indicating that the civil war had ended and that the government was taking action against gangs. The Tribunal also took into account the applicant's long residence in Australia, his criminal history leading to visa cancellation, and the availability of adequate medical treatment and social security in El Salvador, as well as the general risks to the population. The Tribunal found that the applicant had not established a real risk of persecution or significant harm upon return.