2101427 (Refugee)

[2024] AATA 4071

2101427 (Refugee) [2024] AATA 4071 (10 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Gareth John Lewis (MARN: 0319248)

CASE NUMBER:  2101427

COUNTRY OF REFERENCE:                   El Salvador

MEMBER:Rachelle Johnston

DATE:10 October 2024

PLACE OF DECISION:  Sydney

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

Statement made on 10 October 2024 at 5:09pm

CATCHWORDS

REFUGEE – protection visa – El Salvador – extortion – criminal gang – fear of killing – employment – financial and emotional support for family – mental health issues – referral for Ministerial Intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 417, 499
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

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 dependants.

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 20 January 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of El Salvador, applied for the visa on 5 July 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.

   CLAIMS AND EVIDENCE

   Claims and evidence before the Department 

   Protection visa application

3. In his protection visa application lodged on 5 July 2016 the applicant provided the following, among other things:

   ·     He was born in [specified year] in [Municipality 1], La Libertad, El Salvador.

   ·     He speaks, reads, and writes Spanish.

   ·     His mother and father are citizens of El Salvador.

   ·     He married in El Salvador [in] October 1984.

   ·     Whilst in El Salvador he lived in [Municipality 1], La Libertad.

   ·     He has two sons, born in [specified years].

   ·     [Specified family members] live in Australia. [Specified family members live] in El Salvador, [details deleted].

   ·     He completed schooling from Kindergarten to [grade] in El Salvador.

   ·     Whilst in El Salvador he was self employed as a farmer in [Municipality 1], La Libertad, since [year].

   ·     He visited [Country 1] in November 2015, February 2016 and April 2016.

4. In a statement attached to his protection visa application the applicant made the following claims:

   ·     He left El Salvador to avoid being killed. He will be killed on return to El Salvador by members of the [Gang 1] gang. He was harmed in El Salvador.

   ·     On [a day in] July 2015 twelve armed members of [Gang 1] criminal gang approached him demanding US $[amount]. They said if he did not give them the money, his life and the life of his family would be in danger. He asked to give him a week so he could sell some cows and other animals to obtain the money. He did this and gave them US $[amount] [later in] July 2015 to keep himself and his family safe.

   ·     After he gave them the money, he thought they would leave him alone. But less than a month later they were back. [In] August 2015 sixteen members of [Gang 1], who were armed, visited him and demanded another US $[amount]. He again asked them to give him time to get the money by selling the animals he owned as he was very afraid for himself and his family. He did what they asked and gave them US $[amount] [later in] August 2015.

   ·     He decided to come to Australia to visit [his specified] family members. He arrived in Australia [in] November 2015.

   ·     He left Australia and returned to El Salvador [in] February 2016 hoping that everything would be fine and that he could go back to work on his farm.

   ·     [In] February 2016, fifteen gang members approached him and demanded US $[amount].  One of them said to him: “We know you were out of the country and that you are behind with your payments so get yourself together and give us the money or we will kill you and your family”.

   ·     He did not have the amount of money they asked for, so he started to fear for his life and his family as he knew his family were in danger.

   ·     [Later in] February 2016 he decided to leave his home at [Municipality 1] and move to the town of [Town 1]. On this date he moved to his sister’s house in [Location 1].

   ·     [In] March 2016 he reported what happened to the police in San Salvador. He spoke to an officer who referred him to an office called [Unit 1] in San Salvador. He spoke to a person there who sent him to UFEADH but he was not given any document to prove the report he made.

   ·     He had to wait six months, which is the period of time it takes to process the document.

   ·     He was not going to expose his family or his life and wait to get killed while the authorities took their time to process the document and keep him safe.

   ·     On [a day in] March 2016 he went with the police to collect his belongings from his home and a video was made. The video was taken in the city of [Municipality 1], [location 2], which is where he lived with his family. It was taken whilst he was packing and leaving for [Town 1]. He asked the police to protect them because [Gang 1] were going to hurt or kill them as they did not pay them.

   ·     In the video he said he is moving out of his home because his life and the lives of his family have been threatened by [Gang 1]; [Gang 1] were expecting him and his family to come home and they would be hurt, but because he asked the police to watch them as they got their clothes, beds, and other little stuff they could head off; he’s asking the authorities to help because [Gang 1] are taking over the suburb and he is asking his brothers and sisters in Australia to help because the situation is critical; and thanks to the authorities he could get some of his belongings.

   ·     On 8 March 2016 he left his sister’s house and moved to [Town 1].

   ·     On 26 March 2016 he returned to his house with the police to collect further belongings. He made another video at that time. In that video his wife recorded whilst he stated: “In this moment we are getting the necessary things out to go live somewhere else, with the help of our friends and the police force. At this moment we are leaving our house because we have been threatened by thieves, [Gang 1] and we hope that these videos are useful. Thanks to the police I have been able to collect my belongings along with the help of my friends and at this moment we are going very far away. Thank you.”

   ·     [Gang 1] is a feared gang in El Salvador and in surrounding countries.

   ·     No matter where he takes his family, he will not be safe. [Gang 1] have connections all over the country from whom they can get information. It is a matter of time for them to find them and kill them and torture them.

   ·     No matter where he goes in El Salvador he will be tracked down and killed.

   ·     He rented a small house. His family in Australia told him to return to Australia. He accepted and left his family at [Town 1].

5. On 21 July 2017 the applicant’s sister, [Sister A], who is a permanent resident in Australia, provided the Department with a letter in support of his protection visa application. In that letter she provides the following:

   ·     The applicant is very stressed and worried about the situation of his family’s critical condition. They have realised that the applicant lives in Australia and have threatened his family by saying to them that they will be killed because the applicant refused to pay the ransom.

   ·     Her sister who lives in San Salvador has received an anonymous letter from a gangster asking her to pay them an amount of $[amount] and to pay in a week or else they will see the consequences.

   ·     Her sister has left her home and all her possessions and has gone to live with the applicant’s wife. All the family has scattered to different locations, abandoned all because of fear of being killed because they don’t have the ransom money to pay it off.

6. On 2 July 2018 the Department received a further letter from the applicant’s sister, [Sister A], in support of his protection visa application. In that letter she provided the following:

   ·     The applicant is stressed and worried about the situation of his family and the critical condition of his family.

   ·     The applicant desperately needs help to stay permanently in Australia as he has got a permanent job already as a cleaner. He is stressed because he misses his wife.

   ·     The applicant’s family in El Salvador is in danger and he really needs help because his wife is really at risk.

   Interview with the delegate

7. The applicant attended an interview with a delegate of the Department on 15 July 2021. The interview was conducted with the assistance of an interpreter in the Spanish and English languages. The applicant’s representative at the time did not attend the interview. In the interview, the applicant responded to questions and elaborated on his claims. The Tribunal has listened to a recording of the interview. Where relevant, the applicant’s oral evidence at the interview is referred to in the Tribunal’s analysis below.

   The delegate’s decision

8. On 20 January 2021, a delegate of the Minister refused the applicant’s protection visa application. The delegate did not accept the applicant departed El Salvador so as to escape feared harm from gang members there or that he now fears to return to El Salvador for the reasons he had given. The delegate was not satisfied that the applicant is a refugee, as defined by s 5H(1) of the Act or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to El Salvador, there is a real risk that he will suffer significant harm as defined in s 36(2)(aa) of the Act. The delegate therefore found the applicant is not a person in respect of whom Australia has protection obligations.

   Claims and evidence before the Tribunal

   Review application

9. On 8 February 2021, the applicant applied for a review of the delegate’s decision. He provided the Tribunal with a copy of the delegate’s decision.

   Pre-hearing submissions

10. Prior to the hearing, the applicant’s representative provided the Tribunal with written submissions dated 12 September 2024 and a bundle of supporting documents. In that written submission is stated:

    ·     The applicant maintains his claims are genuine.

    ·     There are compassionate circumstances involving his immediate family in Australia that merit special attention.

    ·     In light of the compassionate and compelling circumstances surrounding the applicant’s case, it is requested that the Tribunal refer his matter to the Minister for intervention under s 417 of the Act.

    ·     He has strong family ties in Australia. His daughter, [Daughter A], is a permanent resident who has resided in Australia for thirteen years and his sister, [Sister A], is an Australian citizen who has resided in Australia for more than thirty-eight years. The applicant has many close and immediate extended family living in Australia.

    ·     His daughter has mental health concerns. She struggles with severe depression and anxiety, exacerbated by her husband’s recent diagnosis of [medical condition 1]. Due to the advanced nature of his illness, the applicant’s daughter’s husband had to relocate to [Country 2] to receive care from his mother, further intensifying the applicant’s daughter’s emotional distress. The separation from her husband and the burden of caring for her family alone have significantly impacted her mental health. The applicant has become a crucial source of support for his daughter. He provides physical assistance in managing household responsibilities, emotional support to help her cope with the stress and anxiety of her situation, and financial assistance to ease the burden of expenses for necessities and his granddaughter’s medical and specialist appointments.

    ·     The applicant’s granddaughter, [Granddaughter A], has autism. She is [age] years of age and requires ongoing are and support for her autism. The applicant plays a pivotal role in her daily life. With her father critically ill and receiving care in [Country 2], the applicant has stepped in to provide assistance in caring for his granddaughter.

    ·     There are compelling grounds for the Minister to consider intervening in the applicant’s case. His presence in Australia is critical to the emotional and psychological wellbeing of his daughter and granddaughter. Returning him to his home country will cause him personal distress and will deprive his family of essential support.

    ·     Considering the strong family ties and significant health related concerns within his own family, the applicant urges the Tribunal to refer his case to the Minister for consideration under s 417 of the Act. The compassionate and compelling nature of the circumstances aligns with the public interest in Australia’s commitment to humanitarian values. It is sought that the Tribunal consider the profound impact the applicant’s removal would have on his vulnerable family members.

11. The supporting documents include a statement from the applicant, undated, although also provided to the Tribunal on 12 September 2024. In that statement the applicant provides the following:

    ·     He is grateful to have stayed in Australia and to have had the opportunity to support his family.

    ·     The biggest reason he wants to stay in Australia is due to his daughter and his granddaughter. His daughter’s husband left the country due to his operation for [medical condition 1] and they do not know when he will be back.

    ·     His daughter and granddaughter need him because he is their main support. He needs them the same if not more. They are there for each other and she is his only daughter and means everything to him. It would take a hard toll on them all if the outcome was to get separated as a family. It would not only mean the breakup of his family core but also of the extended family.

    ·     They are a big family of Salvadorian heritage that made its roots in Australia, made up of his daughter, granddaughters, [specified relatives], and extended family.

    ·     He feels useful in society. Because of his age he is allowed and encouraged to work. He considers himself a contributor and upstanding member of the Australian society. He would love to call Australia his permanent home.

12. An undated statement from the applicant’s daughter, [Daughter A], was also provided to the Tribunal on 12 September 2024. In that statement she outlines:

    ·     She is a permanent resident of Australia for the last thirteen years. She is thankful for the support that Australia has provided to her father because it has been a blessing for her family. Her father has a stable job he has been in for eight years. If he was to return to El Salvador, he would not have a stable job nor opportunities due to his age.

    ·     He is supporting her household financially and emotionally and she and her daughter depend a lot on him.

    ·     She takes care of her autistic daughter herself and her father carries the most burden in the household, taking care of her and her daughter emotionally and physically.

    ·     Her daughter loves her grandfather, and he is a key person in her development because they spent a lot of time together.

    ·     Her husband left because he [has medical condition 1] and decided to go back to [Country 2] to recover and they have no idea when he will come back, if at all.

    ·     Her father has been her source of strength through these moments of hardship and if he were to leave, she and her daughter would be devastated.

13. The applicant’s sister, [Sister A], also provided a statement provided to the Tribunal on 12 September 2024. In her statement she indicates:

    ·     The applicant lives with his daughter and granddaughter and provides support for them financially, physically, and emotionally.

    ·     The applicant’s [age]-year-old granddaughter has autism, and he helps his daughter a lot to take care of her.

    ·     The applicant will be in danger if he goes back and the whole family will worry for him. They still don’t trust the security of the country.

14. The applicant’s [Sister B] provided a statement dated 4 August 2024. In that statement she outlines, of the applicant:

    ·     He has a large family in Australia, including [specified relatives].

    ·     When she applied to come to Australia in 1987 his family was also accepted but his wife became pregnant and refused to fly. He suffered greatly in the civil war, through persecution, famine, extortion, assaults, bashings, threats, and the guerrilla killed animals on his land. He would often flee to other parts of the land to prevent getting killed.

    ·     He helps support his family in El Salvador. He supports his daughter and his granddaughter. More than ever his daughter needs his support due to her husband’s [medical condition 1] and overseas [treatment]. Her niece, her brother’s daughter, has high needs, and a daughter who is autistic.

15. The Tribunal also received the following supplementary documents on 12 September 2024:

    ·     Statements from the applicant’s nephews dated 3 August 2024 and 4 August 2024 confirming the applicant’s love for his family, his support for his daughter, his support for his granddaughter, and his importance in the family circle.

    ·     A statement from the applicant’s brother-in-law dated 2 August 2024 outlining he also experienced extortion, assault, and persecution in El Salvador before he arrived in Australia thirty-eight years ago, and that the applicant was going to come to Australia at that time however his wife was pregnant. The applicant’s brother-in-law outlines the applicant needs to support his daughter and granddaughter as his daughter’s husband went to [Country 2].

    ·     A statement from his niece, [Niece A], of 4 August 2024 outlining the applicant has over sixty immediate family members in Sydney alone and that he wants to support his daughter and granddaughter as his granddaughter is autistic.

    ·     A statement from another niece from 4 August 2024 indicating the applicant’s daughter would suffer without his financial and emotional support.

    ·     A statement from his granddaughter, indicating the applicant’s cherished role in the family and that he is supporting her younger sister.

    ·     A statement from another sister, noting the applicant provides financial and emotional support for his daughter and granddaughter.

    ·     A letter from the applicant’s employer from August 2024 commenting on his exceptional personal qualities and professionalism and confirming he commenced his employment as a cleaner in July 2016.

    ·     Statements from friends about his qualities and exemplary conduct, attitude, and responsibilities relating to his family.

16. Other documents that were provided to the Tribunal on 12 September 2024 are:

    ·     [Daughter A’s] Health Care Card.

    ·     A pelvic ultrasound report for [Daughter A].

    ·     NDIS Access confirmation and NDIS Plan outline for [Granddaughter A].

    ·     Letter from an Occupational Therapist indicating [Granddaughter A] has started fortnightly occupational therapy.  

    ·     Discharge summary for [Daughter A’s] husband from May 2023 relating to his [medical condition 1] and treatment.

    ·     [Hospital A] [imaging] exam request report for [Daughter A’s] husband referring to a history of [a medical condition].

    ·     Letters of 30 October 2024 and 16 November 2023 referring to admissions for [Daughter A’s] husband for surgery.

    ·     Photographs of the applicant with his family.

    The hearing

17. The applicant appeared before the Tribunal on 17 September 2024 to give evidence and present arguments. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

1. The applicant attended the hearing with his daughter [Daughter A], his sister [Sister A], his sister [Sister B], his niece [Niece A], and his granddaughter [Granddaughter A]. The Tribunal discussed with the applicant and his representative at the commencement of the hearing if his family were attending as support people for him during the hearing, of if they intended to give evidence. Whilst the hearing attendant swore each of the applicant’s family members in at the commencement of the hearing, after discussing what evidence it was intended they would give to the Tribunal with the applicant and his representative, including in the context of the written letters of support the Tribunal had received from each of [Daughter A], [Sister A], [Sister B], and [Niece A], it was agreed [Daughter A] and the applicant’s granddaughter [Granddaughter A] would vacate the hearing room and the Tribunal would take oral evidence from [Daughter A] after the applicant had given evidence. It was discussed that evidence related to the family support the applicant provided [Daughter A] and [Granddaughter A], as relevant to his submissions relating to a request for Ministerial Intervention.

2. As the applicant had provided extensive written supporting evidence from his other family members in advance of the hearing and was unable to confirm at the commencement of the hearing whether the evidence of his family members would differ from their written witness statements or if there was anything they wished to expand on in their oral evidence, the Tribunal elected, with agreement from the applicant and his representative, to hear only from [Daughter A]. At the applicant’s request, [Sister A], [Sister B], and [Niece A] remained in the hearing room as support people.

3. After a break in the hearing, the applicant’s representative raised with the Tribunal that the applicant’s sister [Sister A] had relevant evidence she wished to give the Tribunal. The Tribunal agreed to hear from [Sister A], despite the earlier discussions with the applicant and his representative as to who would be providing witness evidence. Where relevant, [Sister A’s] oral evidence to the Tribunal, and the Tribunal’s assessment as to the weight to give her evidence, is referred to in the analysis below. [Daughter A’s] evidence to the Tribunal is also referred to as relevant in the analysis below.

4. The hearing was conducted with the assistance of an interpreter in the Spanish and English languages. The Tribunal confirmed with the applicant they were able to understand the interpreter. The applicant was able to answer questions without hesitation and his answers demonstrated an understanding of the questions being put to him.

5. The applicant expressed during the hearing that he experienced a mental breakdown when he came to Australia and had mental health issues. He spoke of flashbacks impacting him emotionally and mentally and how he gradually recovered after arriving in the country. The Tribunal reminded the applicant at the commencement of the hearing he could request additional breaks as needed, in addition to scheduled breaks. After discussing a few matters with the applicant, the Tribunal was satisfied the applicant was able to understand its questions and respond to them and participate effectively in the hearing.

6. The Tribunal is satisfied that the applicant had a meaningful and genuine opportunity to be heard, present their case, and participate fully in the hearing. Where relevant, the applicant’s oral evidence to the Tribunal is referred to in the analysis below.

   Post-hearing submissions and evidence

7. On 27 September 2024, the applicant provided the Tribunal with a letter dated 20 September 2024 from the Team Leader and Senior Dietician at [Agency 1] confirming [Granddaughter A] obtains dietetics services and speech pathology from [Agency 1] for her primary diagnosis of Level 3 Autism Spectrum Disorder. It is reported there are at-home strategies that need to be implemented, that [Granddaughter A] also attends occupational therapy at a different service, and that it is a large burden for [Daughter A] to implement strategies for three allied health services across many aspects of child growth and development.

   CRITERIA FOR A PROTECTION VISA

   The relevant law

8. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

9. 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.

10. 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).

11. 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.

12. 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

13. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.  

    Nationality

15. The applicant claims to be a citizen of El Salvador and provided a certified copy of his El Salvadorian passport to the Department. The delegate was satisfied that the applicant is using his own identity and that he is a citizen of El Salvador. The applicant presented his El Salvadorian passport to the Tribunal at his hearing. He has consistently maintained he is a citizen of El Salvador. In the absence of evidence to the contrary, the Tribunal accepts this and finds the applicant is a citizen of El Salvador and El Salvador is his receiving country for the purposes of assessing his claims for protection.

    Analysis, reasons and findings

16. The Tribunal has considered the applicant’s written and oral evidence throughout the process and has found his evidence to be consistent and him to be a credible witness who has provided detail in support of his claims without apparent exaggeration or embellishment.

17. In the hearing, the Tribunal discussed the applicant’s protection claims, what he claims occurred in El Salvador, why he fears returning to El Salvador, and his work, family, education, and residential history. He raised concerns that he still owed money to gang members (‘[Gang 1]’) in El Salvador, and that he would be found on return to El Salvador and harmed. He also raised concerns that because of his age he would not find employment, would not qualify for the pension, would not be able to support his wife and family, and his wellbeing and mental health would be impacted if he had had to return to El Salvador. Each of these claims are assessed in more detail below.

18. The applicant has also provided the Tribunal with extensive submissions and supporting evidence seeking, in the event the decision not to grant him a protection visa is affirmed, that the Tribunal refer his case to the Department for consideration by the Minister pursuant to s 417 of the Act. The applicant’s evidence and supporting documentation related to this request is also addressed in more detail below.

    Claims related to ‘[Gang 1]’, terrorism, and circumstances on return to El Salvador

19. At hearing the applicant provided an outline of his family, employment, and personal circumstances in El Salvador and explained how he was extorted and harmed by [Gang 1] gangs. The Tribunal accepts the applicant worked as a farmer in [Municipality 1] and that between July 2015 and August 2015 he was repeatedly extorted by armed criminal gangs asking him to pay them money. The Tribunal accepts the applicant sold animals he owned to acquire funds to pay the gang members. The applicant explained at hearing the groups would ask for some money at first from the sale of [crops] then return asking for everything.

20. The Tribunal accepts the applicant came to Australia in November 2015 and upon return to his farm in El Salvador in February 2016 he was again approached by gang members who demanded he pay them $[amount] USD. In discussing the harm he experienced in El Salvador at hearing the applicant described it wasn’t just the financial aspect that harmed him but the threats, harassment, throwing him to the ground, shooting near his head, and making him feel helpless. Country information supports extortion, organised crime, and gang violence was historically common in El Salvador, including across 2015-2016[1]. The Tribunal accepts the applicant was threatened with his life in February 2016 when the gang members demanded money, that his family’s life was threatened, and that his interactions with the gang members involved physical violence, harassment, and verbal abuse.

    [1] Francesca Fontanini, ‘As gang violence worsens, more Salvadorans flee’, UNHCR, 3 February 2016; Internal Displacement Monitoring Centre, ‘An Atomised Crisis: Reframing displacement caused by crime and violence in El Salvador’, Refugee Law Initiative, School of Advanced Study, University of London, September 2018.  

21. The Tribunal accepts the applicant, and his family, left their home in [Municipality 1] in February 2016 and moved to his sister’s house in nearby San Salvador. The Tribunal accepts the applicant reported the matter to the police, that the police assisted him to collect his belongings from his home, and that on 8 March 2016 he left his sister’s house and moved with his family to [Town 1]. The Tribunal accepts the applicant collected further belongings from his home, with police assistance, on 26 March 2016, before returning to [Town 1].

22. The Tribunal accepts the applicant left El Salvador for Australia in April 2016 and that his family remained in [Town 1]. At hearing the applicant confirmed his family returned to the [Municipality 1] area by January 2021. As to his family’s current circumstances in El Salvador, he explained his wife and one of his sons, along with his son’s wife and [child], live in [Municipality 1], although not in his former house. His son in [Municipality 1] returned to farming in the area approximately one year ago. He explained his other son recently moved to [Country 3] after his [shop] in El Salvador had not been financially successful. He explained his sister remains living in San Salvador.

23. The applicant explained at hearing that he still owns his house in [Municipality 1]. He explained he had some issues with an elderly couple that he had allowed to live in the house during his absence from El Salvador, and their ultimate desire to take ownership of the house, but explained his son went to court and the elderly couple were evicted from the property, and it is currently vacant, and a neighbour keeps an eye on it. The Tribunal accepts the applicant has a vacant house in [Municipality 1].  

24. The Tribunal queried with the applicant whether any of his family members, including his wife, sons, or sister, were extorted, threatened or harmed by [Gang 1] after his departure from El Salvador to Australia. In response he stated his son was being targeted by some of these same things he faced in the past. In exploring his son’s issues in more detail, the applicant explained in the last two years the President has managed to regain control where the [gangs] operated and 75% has been gained back by the government in terms of [gang] extortion and criminal activities. He explained his son experienced issues over two years ago and he had not suffered any of that now.

25. When asked if any of his family members were targeted by the people who targeted him after his departure from the country, he stated no they were not a target because they had gone to [another area] of El Salvador. The Tribunal accepts the applicant’s family have not been harmed by members of [Gang 1] that had targeted him whilst they have remained in El Salvador, and he has been in Australia.

26. In discussing his son’s circumstances and farming, the applicant stated about two months ago people came to see his son and to ask about him and where he is and his whereabouts. When asked who it was that asked about him, the applicant stated it was the same [gang] that extorted him in the past. The Tribunal asked the applicant why he thinks they would come back eight years after he had departed El Salvador to ask his son about him. He stated because he didn’t give them the $[amount] they are trying to find out if he is coming back as he still has the debt with them and if he doesn’t pay, they will kill him.

27. The Tribunal raised its concern with the applicant that he had previously been threatened that his wife and sons would be killed, but that had not happened in eight years, and queried why he believes they would carry out those threats. In response he stated because they know his son doesn’t have money the problem is with him not his son. The Tribunal did not find his response persuasive given his evidence his son was conducting farming work in the area. The Tribunal also raised its concern with the applicant that he claims to have been sought out in El Salvador two months ago, but not in the last three years that his family had been residing in that same area. He explained his son had returned to farming in the area where he had his house and that is where they asked about him. The Tribunal found the applicant’s response plausible as to why people had recently asked about his whereabouts given the nature of his son’s return to farming work in the area.

28. In discussing why he would remain a target of [Gang 1] for such a prolonged period of time given he didn’t own a large portion of land and didn’t have a significant income, the applicant explained he had a truck and used to transport workers and worked with [crops] and was seen as someone who could make money. He also provided an example of someone who, four years ago, returned to El Salvador after living away for twenty years and was killed by [a gang] on their return. He explained [Gang 1] have a registry book with people who owe them money, they are prepared to wait years until they see them again, and they are criminals who have no compassion and will not hesitate to harm you.

29. In her oral evidence to the Tribunal [Sister A] stated it was not correct [Gang 1] had only asked about the applicant two months ago and explained [Gang 1] have been constantly asking about the applicant over the last eight years and have had contact with his family members. She explained the applicant’s son and sister asked her not to disclose information to the applicant. The Tribunal queried with [Sister A] why she would not disclose that information to the applicant in circumstances where the applicant had claimed protection in Australia and had a hearing before the Tribunal. In response she spoke of the applicant’s trauma and how he could not stop talking about his past and he didn’t want to bring his memories back and how he had started to settle.

30. Although [Sister A] had the benefit of observing the applicant’s oral evidence to the Tribunal given she was not initially going to give witness evidence, as explained above, the Tribunal is prepared to give her evidence weight and finds that her evidence was not compromised by the applicant’s own evidence nor the concerns the Tribunal raised with the applicant given the internal consistency of [Sister A’s] evidence to the Department and the Tribunal throughout the process. In her letters to the Department of 21 July 2017 and 2 July 2018 [Sister A] refers to the applicant’s family in El Salvador being threatened, including his sister in San Salvador, his wife being at risk, and to the applicant’s stress and anxiety.   

31. The Tribunal is prepared to accept members of [Gang 1] have asked after the applicant in El Salvador throughout the last eight years, including via his family members who remain in El Salvador. The Tribunal accepts the applicant’s son was contacted two months ago by some of the same members of [Gang 1] who had extorted the applicant in 2016 before his departure to Australia. The Tribunal accepts over two years ago the applicant’s son experienced extortion issues involving members of [Gang 1] in his own work and that he has not directly encountered any issues in the last two years. 

32. Given the extensive government action in the last two years in stamping out extortion and gang activity in El Salvador, the Tribunal queried with the applicant whether his son had contacted the police in El Salvador to get assistance. The applicant responded some members of the police have ties with [Gang 1], so he did not. When asked why his son had not contacted the police given he had claimed himself 75% of [Gang 1] had been eradicated and there has been substantial action against extortion in El Salvador, the applicant stated people trust the President, but they do not trust the police even though 72-75% of [Gang 1] have been eradicated from 40,000 in total and that people have trust issues with the police because they think they have ties with [Gang 1]. In circumstances where [Gang 1] had come to his farm, the Tribunal asked the applicant why his son would not contact the police. The applicant stated they saw his son as a worker and not the owner of the farm and they know him to be the owner and they came for him not his son. The Tribunal accepts the applicant’s son has not contacted the police in El Salvador regarding any contact he has had with [Gang 1].

33. When asked why he fears returning to El Salvador, the applicant explained he feels fear relating to the $[amount] he owes [Gang 1]. He stated because of the skills he has he would have to go back to farming and if [Gang 1] found him, they would not just ask for money they would harm him. In discussing where he would return to if he had to return to El Salvador the applicant stated he would not return to where his wife and son are residing now but would go to another place. He raised concerns that wherever he goes in El Salvador he will not be given priority in work given his age. The applicant’s financial concerns on return to El Salvador are discussed in more detail below. The Tribunal accepts if the applicant were to return to El Salvador he would undertake farming work and that he would look to live with his wife and son in a different to place to where they are living now.

1. The applicant also raised a general concern at hearing about terrorism affecting countries such as El Salvador, Guatemala, and Peru and how it is destroying the economy and the ability to carry out normal activities, with priority given to criminals. The Tribunal raised with the applicant that it may find his concerns about terrorism are not specific to him and are concerns faced by the population of El Salvador generally. In response he stated [Gang 1] are a terrorist organisation and the previous President of El Salvador was the one who gave power and weapons and control to [gangs] so they could gain control over the country. The Tribunal considered the applicant’s response and did not find it addressed its concern.

   Financial concerns on return to El Salvador

2. The applicant raised concerns at hearing that if he returns to El Salvador, because of his age, it will be very difficult to find employment and he may not be able to qualify for any pension. He stated he has employment in Australia and has a good boss and is a person of good character and provides support for his wife and family. In discussing his work in Australia he stated he has been working for eight years, that he feels healthy and safe, and if he is able to remain in Australia he can assist his family members financially, whereas if he goes back to El Salvador, he feels his situation and wellbeing will be severely affected. The applicant explained he has been working in cleaning services for eight years. He has provided a letter of support from his manager and employer demonstrating his work history and personal qualities in the workplace. The Tribunal accepts the applicant has had consistent cleaning work in Australia since 2016.

3. In discussing where he would return to if he had to return to El Salvador the applicant explained wherever he goes in El Salvador if he looks for work priority will be given to younger people under thirty-five in farming work. He stated he is [age] years of age, and he fears going to El Salvador means he would not have the skills or means to survive or live.

4. The Tribunal discussed country information with the applicant at hearing that provides El Salvador has experienced modest economic growth in recent decades[2], with tourism as a fast growing sector[3], along with the main sectors of construction, finance, and professional services[4]. It explained information indicates El Salvador has a private pension scheme with specific eligibility criteria and a basic non-contributory pension[5]. The Tribunal explained whilst it appreciated the applicant may not have as stable work in El Salvador as he has in Australia, and he may have a period where he needs to re-connect and find suitable work, it may find he would not be unable to subsist or that he would be denied work for any reason on return to El Salvador, including due to his age, or that anyone would intentionally harm him in relation to his financial concerns. The Tribunal explained whilst he may not have the same opportunities in El Salvador as he does in Australia in terms of employment and income stability, the Tribunal may find his economic concerns on return to El Salvador do not amount to serious or significant harm under the Act.

   [2] The World Bank, El Salvador: Overview, accessed at on 16 September 2024.

   [3] United States Department of State, 2024 Investment Climate Statements: El Salvador.

   [4] ‘El Salvador’s economic activity to grow 4.6% in 2023’, Invest in El Salvador, 8 February 2024, accessed at on 17 September 2024.

   [5] Sebastian Martinez, Michelle Perez, Luis Tejerina, Anastasiya Yarygina, ‘Pensions for the Poor: the Effects of Non-contributory Pensions in El Salvador’, Journal of Economics, Race, and Policy, Volume 3(1), March 2020, 96-115; ‘El Salvador’s Congress approves pension system reforms’, Reuters, 21 December 2022; International Social Security Association, ‘Recent developments in social pensions in Latin America’, 12 March 2021, accessed at on 16 September 2024.

5. In response to the Tribunal’s concerns the applicant stated the industries available are probably in cities and not in country towns. He stated the government has given three consecutive payments of pensions then no more money. He explained the government are saying most young people have migrated to the USA and that has collapsed the economy and they are not informing people about the situation. The applicant outlined that he has spoken with his son in El Salvador, and he stated the situation is really tough and if you want to work in a factory as a labourer the average age is twenty-seven and even his son found it difficult to get a job at thirty.

6. In terms of farm and factory work, the applicant stated in factories the average wage is $300 USD and in farming it is not possible to work every day and the pay is only $7 a day. The Tribunal considered the applicant’s responses, and it accepts the rate of pay in El Salvador is not as high as it is in Australia and economic opportunities are not as abundant. The Tribunal is prepared to accept the applicant would experience some age discrimination and be denied some work on this basis. The Tribunal did not find the applicant’s responses addressed its overall concern as to whether he would not be able to subsist, would be denied work, and whether his financial concerns on return to El Salvador amount to serious or significant harm. 

   Mental health and wellbeing concerns

7. The applicant explained at hearing as a result of the physical violence and harassment he experienced from the gang members in El Salvador he got very ill. In exploring this in more detail with the applicant he explained he had a mental breakdown when he came to Australia and was mentally ill. He described that he was about to lose his sight, which he was not sure if it was related to his mental health. He explained as he adapted to his life in Australia and gained control he recovered in his health. He stated he doesn’t like going to the doctor but despite that he has managed to recover from his trauma and experiences in El Salvador. The applicant mentioned he has some flashbacks that affect him mentally and emotionally and that make him feel unwell.

8. The Tribunal discussed with the applicant whether he had obtained any counselling or mental health treatment in Australia. He stated he had not. In discussing if he had obtained support from his family, he stated his family didn’t really understand about what people face in El Salvador and only know a quarter of what he was dealing with.

9. The Tribunal discussed with the applicant that whilst it appreciates returning to El Salvador may be distressing and bring up past memories, it may not find his distress on return to El Salvador or bad memories and mental health symptoms are the result of any intentional act of harm inflicted against him or that his concerns are for reasons of his race, religion, nationality, membership of particular social group, or political opinion. It explained it may not find his concerns amount to serious or significant harm under the Act. In response the applicant stated he has trauma, and he hasn’t been in El Salvador for eight years and if he returns, he is pretty sure those memories will come back, and he will fall into a state of depression because of that. He stated that whilst he considers himself a strong person, being exposed and having dealt with these situations has been very tough and affected him physically and mentally. The Tribunal accepts the applicant has bad memories of El Salvador and that he experiences flashbacks. Nevertheless, the Tribunal did not find the applicant’s responses allayed its concerns. 

   Does the applicant meet the refugee criterion?

10. The applicant claims if he returns to El Salvador, he will be found by [Gang 1] that he still owes money to, and they will harm and kill him. He also claims he will be unable to find employment, survive and live owing to the economy in El Salvador and his age, that he will experience depression and his wellbeing will be severely affected by returning to El Salvador, and that he fears harm in relation to terrorism.

11. The Tribunal, for the reasons set out above, has accepted that whilst working as a farmer in [Municipality 1] the applicant was repeatedly extorted by [Gang 1] and that in February 2016 he was again approached by gang members who demanded he pay them $[amount] USD. The Tribunal has accepted he was threatened with his life in February 2016 when the gang members demanded money, that his family’s life was threatened, and that his interactions with the gang members from [Gang 1] involved physical violence, harassment, and verbal abuse. The Tribunal has accepted after the February 2016 incident the applicant and his family ultimately relocated, first to his sister’s house in San Salvador, then to [Town 1]. The Tribunal has accepted the applicant departed El Salvador for Australia in April 2016 and his wife and sons remained in [Town 1], although had returned to the [Municipality 1] area by January 2021. The Tribunal has accepted the applicant’s family have not been harmed by the members of [Gang 1] that had targeted the applicant in El Salvador.

12. The Tribunal has accepted the applicant’s son experienced his own issues with [Gang 1] more than two years ago, and that two months ago his son was approached by members of [Gang 1] who had previously extorted the applicant and who asked after his whereabouts. The Tribunal has accepted members of [Gang 1] have asked after the applicant in El Salvador throughout the last eight years, including via his family members who remain in El Salvador. The Tribunal has accepted the applicant’s son has not contacted the police in El Salvador regarding any contact with [Gang 1].

13. The Tribunal has accepted the applicant has a vacant house in [Municipality 1] and that if he were to return to El Salvador he would undertake farming work and that he would look to live with his wife and son in a different place to where they are living now. The Tribunal has accepted the applicant has consistently worked in cleaning work in the same company whilst in Australia and that the rate of pay in El Salvador is not as high as it is in Australia and economic opportunities are not as abundant. The Tribunal has accepted the applicant would experience some age discrimination in El Salvador and be denied some work on that basis. The Tribunal has accepted the applicant has bad memories of El Salvador and that he experiences flashbacks.

14. For the following reasons, and having regard to the findings above, the Tribunal is not satisfied there is a real chance that he will suffer serious harm upon return to El Salvador in the reasonably foreseeable future.

15. To meet the refugee criterion, a person must have a well-founded fear of persecution for one or more of the reasons mentioned in s 5J(1)(a), namely race, religion, nationality, membership of a particular social group or political opinion.

16. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, whilst s 5J(1)(b) imposes an objective standard, that there must be a real chance of that fear being realised and the person being persecuted.

17. The applicant claims if he returns to El Salvador, he will be found by [Gang 1] and harmed and killed in relation to $[amount] he still owes them. The Tribunal has accepted the applicant was repeatedly extorted by [Gang 1] whilst a farmer in [Municipality 1] and that [Gang 1] have asked after the applicant in El Salvador throughout the last eight years, including via his family members, and that the last occasion anyone asked after him was two months ago.

18. Country information before the Tribunal indicates for decades gangs, largely MS13 and the 18^th Street Gang (collectively ‘the Maras’), which emerged in El Salvador in the 1990s following the deportation of gang members from the United States[6], have exerted territorial control over areas throughout El Salvador, committing homicides, abductions, physical violence, extortion, and displacement, with past administration’s responses to criminal violence oscillating between obscure negotiations with gangs and iron-fisted security policies[7]. El Salvador is reported to be known historically as one of the most violent peacetime countries in the world, with the murder rate in 2015 in El Salvador being 103 per 100,000 people, the highest murder rate worldwide, attributable to gangs operating extortion rackets across the country[8]. In both 2015 and 2016 El Salvador recorded more homicides than any other country in the world[9].

    [6] Jonathan Blitzer, ‘The Legacy of Deportations in El Salvador’, Pulitzer Center, 17 January 2017. 

    [7] Human Rights Watch, World Report 2024: El Salvador; ‘El Salvador gangs: Mass arrets bring calm but at what price?’, BBC, 19 May 2023.

    [8] Zach Y. Brown, Eduardo Montero, Carlos Schmidt-Padilla, Maria Micaela Sviatschi, ‘Market Structure and Extortion: Evidence from 50,000 Extortion Payments’, December 2022, 5-6, accessed at

    [9] Jeremy Giles, ‘The Problem with El Salvador’s Crime Numbers’, Foreign Policy, 8 August 2024.

19. It is reported the majority of El Salvador has been impacted by gang-related extortion. Street gangs operated extortion rackets in historical centres and markets such as in San Salvador, taking regular small payments from vendors[10], with estimates suggesting that over 70% of businesses have been extorted in areas of El Salvador featuring gangs, with extortion described as the ‘economic engine’ behind gangs and violence[11].

    [10] Alex Papadovassilakis, Steven Dudley, ‘The “Protection Racket”, Gangs and Violence in San Salvador’, InSight Crime, 1 October 2020.

    [11] Zach Y. Brown, Eduardo Montero, Carlos Schmidt-Padilla, Maria Micaela Sviatschi, ‘Market Structure and Extortion: Evidence from 50,000 Extortion Payments’, December 2022, 5-6, accessed at >

    Following increased large-scale gang violence in El Salvador in early 2022, including the deaths of 92 people between 24 March and 27 March, at the request of President Nayib Bukele the Legislative Assembly adopted on 27 March 2022 a 30-day state of emergency in El Salvador, suspending a range of constitutional rights, including the rights to freedom of assembly, privacy in communications, and to be informed of the reason for arrest, as well as the requirement that anyone be taken before a judge within 72 hours[12]. The state of emergency has continued in El Salvador since 27 March 2022, with the country having spent over two years under the decree[13].

    [12] ‘We Can Arrest Anyone We Want: Widespread Human Rights Violations Under El Salvador’s “State of Emergency”’, Human Rights Watch, 7 December 2022.

    [13] ‘El Salvador extends anti-gang emergency decree for 24^th time. It’s now been in effect for two years’, AP News, 10 March 2024.

20. The government increased the maximum sentence for being a gang leader to 45 years and for being a gang member to 30 years and the criminal procedural code was amended to mandate pretrial detention for those charged with gang membership and extortion[14]. According to available data, 73,000 people were detained between 27 March 2022 and early November 2023[15], with other reports suggesting over 1% of the country’s 6.3 million population have been arrested[16]. There are reports of mass detentions, arbitrary detention, and of crude profiling of the physical appearance or social background of those detained[17], including with charges being made on the basis of tattoos and youth[18].

    [14] Freedom House, Freedom in the World 2024: El Salvador. 

    [15] ‘IACHR Issues Report on State of Emergency and Human Rights in El Salvador’, Inter-American Commission on Human Rights, 4 September 2024.

    [16] Alex Papadovassilakis, ‘The Road to El Salvador’s State of Emergency’, Insight Crime, 6 December 2023.

    [17] ‘El Salvador state of emergency’, United Nations Human Rights, 28 March 2023.

    [18] United States Department of State, 2023 Country Reports on Human Rights Practices: El Salvador; ‘Children victimised in El Salvador’s anti-gang crackdown, rights group alleges’, Los Angeles Times, 16 July 2024.

21. The state of emergency has reportedly kept rates of crimes, including homicides and extortion, at historically low levels[19]. The country’s official homicide rate dropped to 2.4 per 100,000 in 2023, although there are reports of potential data manipulation and a lack of transparency making it hard to assess the true extent of the reduction[20]. The United States Department of State report that under the state of exception, reports of gang violence decreased significantly, allowing citizens their right to life, liberty, and security of person, and to engage in daily activities and commerce without the constant threat of violence and extortion[21]. They report the government have reported to maintain a database of profiled gang members and have carried out arrests based on that database[22].

    [19] Freedom House, Freedom in the World 2024: El Salvador. 

    [20] ‘Children victimised in El Salvador’s anti-gang crackdown, rights group alleges’, Los Angeles Times, 16 July 2024.

    [21] United States Department of State, 2023 Country Reports on Human Rights Practices: El Salvador.

    [22] United States Department of State, 2023 Country Reports on Human Rights Practices: El Salvador.

22. Country information indicates soldiers have infiltrated towns in El Salvador, establishing security fences, and dismantling gangs, with the President having indicated the siege would not be lifted until ‘all the criminals’ were apprehended[23]. There are reports of 8,000 soldiers and police conducting raids in crackdowns on gangs since the state of emergency was declared[24].

    [23] ‘El Salvador: Entire region ‘under siege’ to hem in gangs’, BBC, 2 August 2023.

    [24] ‘El Salvador sends 8,000 troops and police officers to comb rural province in massive anti-gang raid’, Ap News, 2 August 2023.

23. There are reports the degree of gang territorial control in El Salvador has dropped sharply after the government implemented the state of emergency in March 2022, and that conversely, certain population groups, namely young men, limit their movements due to fear of arbitrary arrest or police harassment[25]. Since the imposition of the state of emergency, it is reported hundreds of gang members have fled to Mexico, the USA, Nicaragua, Honduras, and other surrounding countries, and that gang members who historically had power in El Salvador are either imprisoned or are in hiding[26]. Reports have commented on investigative news outlets visiting fourteen communities across El Salvador that had spent years under the control of criminal groups, finding the gangs had all but vanished[27].

    [25] Freedom House, Freedom in the World 2024: El Salvador. 

    [26] ‘Gang members on the run: MS-13’s exodus from El Salvador’, Contra Corriente, 10 June 2024.

    [27] ‘Bukele Has Defeated El Salvador’s Gangs – for Now. How? And What Does it Mean for the Region?’, Lawfare, 27 March 2023.

24. There have been calls on El Salvador to end the long-running state of emergency and reinstate suspended constitutional rights after achieving significant security gains due to its anti-gang crackdown[28]. Numerous reports have commented that the state of emergency has undermined the presumption of innocence and the right to defence and that it has led to arbitrary detention, prison overcrowding, and deaths in custody[29]. Despite this criticism, the President has been widely supported within the El Salvadorian community, having received more than 84 per cent of the vote in his re-election in February 2024[30].

    [28] ‘Human rights commission calls on El Salvador to end state of emergency’, Reuters, 5 September 2024.

    [29] ‘El Salvador: The institutionalisation of human rights violations after two years of emergency rule’, Amnesty International, 27 March 2024.

    [30] Jeremy Giles, ‘The Problem with El Salvador’s Crime Numbers’, Foreign Policy, 8 August 2024.

1. The Tribunal discussed the country information with the applicant at hearing and explained the March 2022 state of exception which has lasted for over two years now has reportedly led to significantly decreased gang violence in El Salvador, allowing citizens to exercise their right to life, liberty, and security of person and to engage in daily activities without violence or extortion. It explained earlier this year El Salvador had reportedly the lowest homicide rate in the Western hemisphere[31]. It explained whilst there has been commentary that the state of emergency has included the suspension of constitutional rights and vastly increased powers of the police and military personnel to arrest and imprison people suspected of gang involvement, leading to prison overcrowding and arbitrary detention, the information before it does not appear to indicate that he would specifically face any harm from [Gang 1], gang activity, or be targeted under the state of exception for any reason on return to El Salvador, or that he would be denied state protection for any reason on return to El Salvador. The Tribunal outlined given the country information, changed political and social climate in El Salvador since his departure, and that his wife and son have remained in [Municipality 1] without being harmed, it may find he does not face a real chance of serious or significant harm on return to El Salvador from [Gang 1] or in relation to gang activity or crime in the reasonably foreseeable future.

   [31] ‘Fear of police replaces gang violence in El Salvador’, EFE, 3 February 2024.

2. In response the applicant raised concerns about a recent helicopter incident involving police and a criminal being transferred from one place to another prison where there are reports the helicopter was shot down. He explained the President and members of the army are the target of threats from the mafia, the government have confiscated 2,000 tonnes of drugs, and the President, owing to threats and the volatile situation in El Salvador, has mentioned he is only going to rule for another three years. He explained there is a lot of uncertainty as to who will replace the President and whether that person will work in favour of the Maras or continue with the policies of the current President. The applicant stated if he knew the current President was going to govern for thirty years tomorrow, he would travel to El Salvador but as it is only three years and there is a lot of uncertainty, and no one knows what will happen he does not want to go back to El Salvador. The Tribunal considered the applicant’s responses and whilst it acknowledges acts of violence and drug activity do still occur in El Salvador, it found the applicant’s responses to be speculative and that they did not address the Tribunal’s concerns as to whether he specifically faces a real chance of serious or significant harm on return to El Salvador and whether he would be denied state protection for any reason.

3. The country information referred to above and as discussed with the applicant indicates the Maras syndicates and extortion networks formerly operating in El Salvador have been effectively eradicated and that large-scale police and military operations have occurred across the country, leading to the imprisonment of over 70,000 suspected gang members. Whilst the Tribunal has accepted members of [Gang 1], including members who targeted the applicant before his departure from El Salvador, have contacted his family over the last eight years asking about him, the applicant and [Sister A] did not indicate in their evidence that any recent contact from [Gang 1] asking about the applicant in El Salvador, including occurring after the commencement of the state of emergency, involved any threats to harm him or his family on his return to El Salvador for any reason. The applicant stated his son was asked about his whereabouts, although he did not indicate his son was directly extorted or threatened, or that a threat was issued in relation to his return to El Salvador for any reason. His evidence was that his son had not directly experienced any issues involving extortion in the last two years, although he had previously experienced issues. Although his son is now working in farming, he has not experienced extortion or harm from anyone, including [Gang 1]. Whilst the applicant stated in his evidence his son would not be harmed by [Gang 1] because he doesn’t have money and the problem is with him not his son, the Tribunal did not find this persuasive where his son did have his own issues with [Gang 1] more than two years ago.

4. When the Tribunal raised its concern with the applicant that it may not find in the context of the country information and the state of emergency and given his family’s circumstances in El Salvador that he faces a real chance of serious harm on return to El Salvador he stated in his response if he knew the current President was going to govern for thirty years, he would travel to El Salvador. The applicant’s response did not give the Tribunal the impression he has genuine fears of harm from [Gang 1] on return to El Salvador in the reasonably foreseeable future, or that recent contact from [Gang 1] asking about his whereabouts involved any threat to harm him or that his safety would be compromised on return to El Salvador for any reason related to [Gang 1].

5. Whilst the applicant has expressed concerns the President may not continue in his role and policies may change, the Tribunal finds these concerns to be speculative and that there is no persuasive evidence before the Tribunal that the eradication of gang activity in El Salvador will not continue in the reasonably foreseeable future and that anti-gang policies will not be promoted by successive governments in El Salvador’s long-term future. Although individual gang members have been reported to be hiding in their homes or in rural areas in El Salvador[32], with the dismantling of gang activity and extortion networks in El Salvador, a significant police and military presence across the country, significant criminal consequences for undertaking any gang activity, and considering the country information referred to above and as discussed with the applicant that provides with decreased gang violence citizens in El Salvador are able to exercise their right to life, liberty, and security of person and to engage in daily activities without violence or extortion, the Tribunal finds there is no real chance individual members of [Gang 1] will target, extort, or harm the applicant on his return to El Salvador.

   [32] ‘Gang members on the run: MS-13’s exodus from El Salvador’, Contra Corriente, 10 June 2024; ‘El Salvador: Entire region ‘under siege’ to hem in gangs’, BBC, 2 August 2023.

6. Considering the above factors individually and cumulatively, and the country information referred to above and discussed with the applicant at hearing, whilst the Tribunal accepts the applicant was previously harmed by members of [Gang 1] before his departure to Australia in 2016 and that his family has been contacted about his whereabouts since his departure from El Salvador, it finds there are no current threats to harm the applicant on his return to El Salvador for any reason, and that there is no real chance he faces serious harm from former or current members of [Gang 1] on return to El Salvador, including [Municipality 1], in the reasonably foreseeable future. Nor does the Tribunal find the applicant’s profile, as a family man in his [age range] who has never had any issues with the police or authorities and who does not present with any prominent tattoos, will lead to him facing a real chance of arbitrary arrest, harassment, or harm from the authorities on return to El Salvador in the reasonably foreseeable future in connection to suspected gang activity.

7. The applicant raised general concerns about terrorism within El Salvador at hearing. The applicant did not indicate in his evidence why he specifically would be the target of terrorism on return to El Salvador. When the Tribunal raised its concern with him that it may find his concerns to be ones faced by the population of El Salvador generally, and not by him personally, he provided a historical background to the problem of [gangs] in El Salvador as related to the former President. On the evidence before it, and considering the applicant’s claims individually and cumulatively, the Tribunal finds the applicant does not face a real chance of serious harm on return to El Salvador in the reasonably foreseeable future in relation to his concerns of terrorism.

8. The applicant raised at hearing that he fears on return to El Salvador he would not find employment, younger people would be prioritised for work, and he would not have the skills or means to survive or live. The applicant’s evidence to the Tribunal was that he has been working in Australia in cleaning for eight years and he is healthy. Whilst he indicated he would not obtain work in El Salvador as someone over thirty five, his evidence to the Tribunal was that prior to his arrival in Australia he was working in farming where he was fairly successful and had a vehicle, transported workers, and had a property where he owned 30% of the land and rented another 70%. The Tribunal finds the applicant is physically well and still of working age and that he has skills in farming and cleaning that he could utilise on return to El Salvador.

9. Whilst the Tribunal has accepted the applicant will experience some age discrimination and be denied some work on this basis, and that the rate of pay in El Salvador is not as high as it is in Australia and economic opportunities are not as abundant, it finds where he has relevant farming and cleaning skills, has worked consistently in Australia in physical work, worked in farming in El Salvador prior to his arrival in Australia when aged in his [age range], and where the government provides a basic non-contributory pension, the applicant will not be denied the capacity to earn a livelihood of any kind in El Salvador where the denial threatens his capacity to subsist, or that he will experience significant economic hardship that threatens his capacity to subsist on return to El Salvador, or that he will be denied access to basic services that threatens his capacity to subsist. The applicant will be returning to El Salvador where he has family support in the form of his son, his son’s family, and his wife, and a vacant home as an asset. Whilst his financial circumstances and income in El Salvador may not be as stable and high as they are in Australia, the Tribunal finds his concerns do not come within the definition of serious harm in s 5J(4)(b).

10. The applicant has also raised mental health and wellbeing concerns on return to El Salvador, explaining he fears he will face depression. The Tribunal acknowledges the applicant has bad memories of El Salvador and he has experienced flashbacks and that he has concerns for his emotional wellbeing on return to El Salvador. The applicant has not obtained any mental health specific treatment in Australia and has not obtained a diagnosis for his mental health. He explained he has gained control of his health in Australia. There is no evidence before the Tribunal that the applicant will be internationally harmed on return to El Salvador in relation to his health, mental health, or overall wellbeing for any reason. On return to El Salvador he will have the support of his wife, son, and his son’s family, in addition to his sister. The Tribunal finds the applicant’s mental health concerns on return to El Salvador are not for a s 5J(1)(a) reason. Whilst the Tribunal acknowledges the applicant may have flashbacks and bad memories of events and circumstances on return to El Salvador, the Tribunal finds the applicant’s mental health concerns on return to El Salvador do not amount to serious harm in accordance with s 5J(4)(b).

11. The applicant did not claim, and there is nothing in the material to suggest, that he fears persecution for any other reason in El Salvador.

12. For the reasons given above, and having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that if the applicant returns to El Salvador now or in the reasonably foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, the applicant does not meet the definition of refugee in s 5H(1) and does not satisfy the criterion set out in s 36(2)(a).

    Does the applicant meet the complementary protection criterion?

13. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s 36(2)(aa).

14. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to El Salvador.

15. For the reasons set out above, the Tribunal has found that there is not a real chance that the applicant will experience harm from [Gang 1], in connection to the state emergency, or in relation to terrorism if he returns to El Salvador. The ‘real risk’ test under the complimentary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion[33]. This applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. It follows the Tribunal finds that the applicant does not face a real risk of significant harm from [Gang 1], in connection to the state of emergency, or in relation to his concerns of terrorism on return to El Salvador.

    [33] MIAC v SZQRB [2013] FCAFC 33.

16. In relation to the concerns the applicant raised at hearing that the economy in El Salvador is poor, and he will not obtain an income and be able to survive and live due to the economy and his age, the Tribunal appreciates the applicant has a stable job in Australia where he obtains a steady income that enables him to support his family members overseas and his family in Australia. Whilst the Tribunal acknowledges the applicant would not obtain as high an income in El Salvador, would experience some work discrimination on account of his age, would have some work instability and less opportunities in work than he does in Australia, and a change to the quality of his life, as raised with the applicant at hearing, the Tribunal finds these concerns do not involve any intentional act to cause him harm.

17. The applicant is of good health and has been working steadily whilst in Australia in a cleaning role. Whilst in El Salvador he worked in farming and was undertaking that work whilst he was in his [age range] before he came to Australia. Whilst the applicant may experience some challenges finding work on return to El Salvador, the country information referred to above and discussed with the applicant at hearing indicates El Salvador has experienced modest economic growth in recent decades and tourism is a fast-growing sector along with professional services. The Tribunal finds if the applicant did not want to return to farming work, as he had indicated he would do at hearing, he would be able to draw on his cleaning experience in Australia to find suitable work within the tourism, professional, or other related industries that require cleaning services.

18. The applicant has a vacant home in El Salvador and family whom he can rely on for support and housing whilst he re-establishes himself. Whilst the Tribunal accepts the applicant will face challenges and difficulties arising from finding work on return to El Salvador, including some age discrimination, and that his income will be lower to what he has obtained in Australia, based on his work history in El Salvador, his current circumstances, and the country information referred to above, the Tribunal is not satisfied he will not be able to find paid employment anywhere in El Salvador, or that there is any intention on the part of the government in El Salvador or anyone else to cause the applicant economic harm. Given this, the Tribunal finds that the applicant’s economic concerns on return to El Salvador do not come within the exhaustive definition of significant harm in s 36(2A).

19. The Tribunal acknowledges the applicant has bad memories and flashbacks associated with his experiences in El Salvador and that he does not want to return to El Salvador. Whilst the Tribunal acknowledges returning to El Salvador may lead the applicant to experience mental health symptoms and to re-live aspects of his past experiences there, it finds the applicant’s wellbeing and mental health concerns on return to El Salvador will not result in him being arbitrarily deprived of his life, suffering the death penalty, being subjected to torture, being subjected to cruel or inhuman treatment or punishment, or being subjected to degrading treatment or punishment. Nor does the Tribunal find the applicant’s wellbeing and mental health concerns on return to El Salvador involve any intentional act to cause him harm. Given this, and as raised with the applicant at hearing, the Tribunal finds his mental health concerns on return to El Salvador do not amount to significant harm in accordance with s 36(2A).

20. On the evidence before it, whilst the Tribunal is sympathetic to the applicant’s circumstances, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to El Salvador, there is a real risk that he will suffer significant harm. That is, the Tribunal is not satisfied that there is a real risk in being removed from Australia to El Salvador that he will be arbitrarily deprived of his life or suffer the death penalty; or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

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

    Ministerial intervention

22. The applicant has requested that the Tribunal refer his case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

23. The Tribunal has had regard to the applicant’s circumstances, and those of his extended family in Australia. The applicant has provided the Tribunal with extensive supporting evidence about his unique and exceptional circumstances to be brought to the Minister’s attention, his extensive family connections with Australian citizens and permanent residents, and his ongoing connection to the country.

24. The applicant gave evidence at the hearing that he is a central figure within his extensive family network living in Australia. He spoke about the support he provides his daughter, grandchildren [and other extended family members], each of whom permanently reside in Australia. In his written statement to the Tribunal the applicant indicates his departure from Australia would be a hard toll on his daughter and granddaughter and mean the breakup of his family core and his extended family. He outlines he is from a big family of Salvadorian heritage that has made its roots in Australia.

100.   The applicant also spoke about his stability and peace in Australia, and of having found an ability to work through his experiences in El Salvador whilst in Australia and to have established strong work and friendship connections in the Australian community. He spoke proudly about his work in Australia, of his longevity of work with his single employer in Australia, and of his desire to continue working. The applicant’s manager has provided a letter detailing the applicant’s exceptional qualities that make him an invaluable asset to the business, detailing his genuine nature, commitment, dedication, reliability, and professionalism.

101.   The applicant spoke deeply about the connection he has with his family and about the difficulties many members of his family have faced in recent times and the support that he has provided them. He spoke of providing emotional, physical and financial support to his daughter and granddaughter, particularly as his daughter’s husband has been undertaking [medical condition 1] treatment in [Country 2]. The applicant has provided medical evidence to the Tribunal of his daughter’s husband’s [medical condition 1] treatment, and documentation illustrating the support needs of his granddaughter owing to her autism diagnosis. This material outlines the multiple therapies the applicant’s granddaughter undertakes for her autism and the necessity for at-home treatment to also occur, placing stress on the applicant’s daughter.

102.   The applicant’s daughter gave oral evidence to the Tribunal that the applicant has been instrumental in providing emotional, physical and financial support to her and her daughter. She explained the departure of the applicant from Australia would be a big gap and that his assistance is irreplaceable. She explained because of her own daughter’s autism requiring constant care, the applicant has provided support to her and her daughter and that the applicant is particularly close with her daughter, especially with her daughter’s father away in [Country 2] undertaking [medical condition 1] treatment. She indicated her husband, whom she has separated from, is due to return to Australia after his treatment in [Country 2] but there is no certainty of this timeframe.

103.   Many of the applicant’s family members attended his hearing as support people. In the applicant’s detailed and extensive supporting letters provided to the Tribunal, the applicant’s family and friends have written about how crucial the applicant is to his family network in Australia, to his daughter, and to the wellbeing of his granddaughter. There are refences to the applicant being cherished within the family, to the significant amount of time he spends with family during the week, to the emotional support he provides many family members, to his unwavering dedication to his family, to him being one of the most important people in the family circle, to attending an extensive number of family social events, to his continued presence in Australia enriching his family and other people’s lives, and to the applicant’s bond with his granddaughter and the devastation of his family if he left the family unit. There are references to the impact on the applicant if he had to leave his extended family network.

104.   The applicant’s [sister] refers in her letter to how the applicant was initially accepted to come to Australia in 1987 when she applied to come to Australia from El Salvador, but his wife was pregnant in her third semester. The applicant’s family have indicated in their evidence about the psychological hardship the applicant would face if he had to return to El Salvador.

105.   The applicant’s representative has submitted as grounds for referral the applicant’s strong family ties, noting his daughter has been resident in Australia for thirteen years and his sister who has been resident in Australia for thirty-eight years. They have also submitted the applicant is a crucial support to his daughter and granddaughter and that the applicant has developed a close and nurturing relationship with his granddaughter and plays a vital role in her life that has been crucial to her development and well-being, particularly in the context of her father’s medical issues and her disability. The applicant’s representative has submitted that the applicant’s removal would not only cause him personal distress but would also deprive his family of essential support.

106.   The Tribunal has considered the ministerial guidelines. The Tribunal considers there is scope to refer this case to the Minister on the basis there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident. The applicant has provided extensive evidence to the Tribunal demonstrating the centrality of his connection to his family unit and extended family circle in Australia, and the harm and continuing hardship that would result to his family unit if he were to return to El Salvador. The applicant has provided evidence of the emotional and physical assistance he has provided his granddaughter and daughter, outside the services that are accessible to his granddaughter under the National Disability Insurance Scheme. The applicant has remained in Australia for over eight years, has integrated into the community, and has ongoing and stable employment that he has been working at for over eight years.

107. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Ministerial intervention under sections 351, 417, and 501J of the Migration Act 1958’ and will refer the matter to the Department.

Conclusion

108.   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).

109.   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).

110.   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 criteria in s 36(2).

DECISION

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

Rachelle Johnston
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.

…