2116871 (REFUGEE) - [2024] ARTA 174

2116871 (REFUGEE) [2024] ARTA 174 (21 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Representative: Mr Jeremy Bayliss
Respondent:Minister for Home Affairs

Tribunal Number: 2116871
Tribunal:Senior Member D Dragovic
Date:21 October 2024

Place:Melbourne
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that
(i)that the first named applicant meets s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 21 October 2024 at 12:23pm
CATCHWORDS
REFUGEE – Protection Visa – El Salvador – fears harm upon return to El Salvador from both the gangs and the government – having been a representative of companies with gangs – facilitating the payments between the company and the gangs – there is a real chance that the applicant will suffer serious harm – satisfied that the applicant is a person in respect of whom Australia has protection obligations – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65,499
Migration Regulations 1994, Schedule 2
CASES
MIMAC v SZRHU (2013) 215 FCR 35
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 November 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are citizens of El Salvador. They applied for the visas on 11 May 2016.
The applicants appeared before the Tribunal on 18 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
The applicants were represented in relation to the review.
Criteria for protection visa
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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant claims to have been an intermediary between his employer, a [company], and several gangs. As the situation in El Salvador changed, he fears harm upon return to El Salvador from both the gangs and the government.
The applicant was [a] Manager from 2007-2015 at [Company 1].
The applicant was initially hired as [Manager], managing the company's [Centres].
The applicant explained how gangs became a part of the business. He wrote:
Measures were taken [to reduce costs] including the elimination of polygraph tests in staff hiring and the elimination of security [guards], and a reduced number of security guards at the [workplace]. These measures allowed gang members to join the company's staff, and the extortion payments made to gangs increased to US $30,000 per month.
Extortion money was paid to the following gangs [names deleted]. He explained that the money was paid in cash in each neighbourhood to an assigned gang member to allow trucks to enter and deliver products to customers and so that they would not steal company trucks or assault employees.
At that time the applicant was tasked with leading efforts to deal with the problem of gangs having infiltrated the company’s workforce and the theft of products and vehicles. The applicant led and coordinated various activities including firing staff working for the company who belonged to gangs. He explained, ‘The work required highly trusted persons to infiltrate and identify workers who belonged to gangs.’ Then an internal team was formed consisting of various senior managers assisted by the Extortion Unit of the National Civil Police. This was done without the knowledge of the general manager.
The applicant wrote that in early 2013 the general manager hired two people to fix the gang problem that was costing the company a considerable amount of money. Separate to the efforts of the applicant, they arranged negotiated payments in the form of food goods that were sold by the company which would cost the company about USD$6,000 per month. The applicant was ordered to attend the meeting to coordinate with the gang leaders these deliveries. Present at the meeting were the gang representatives along with Mr [A] who had previously been the Principal Negotiator of a truce between the gangs and the government of El Salvador and is public figure.
The agreement was slowly rolled out. Initially there were difficulties as the local gangs didn’t acknowledge the agreement as orders hadn’t come from ‘prison’, meaning the senior most leadership of the gangs. This led to one of the warehouses where the applicant was working being raided by a gang and the applicant was threatened with a gun to his head that he needed to resume the original extortion payments. The applicant was warned that he would be killed.
After the gang left, the applicant was traumatised and began searching for a new job.
He started a new role at another company but noted that there were gang members who he knew from the earlier negotiations present in the vicinity of the company premises. He reported this but was told that the company didn’t have problems with gangs. During one of his movements through the city he was ‘detained’ by three men who told him to return to his old job as he was their contact there. Fearing for his life, he returned to [Company 1].
In July 2013 the first deliveries to the gangs were made. The applicant explained what happened:
Most of the cliques stuck to the agreement but in some neighbourhoods [there] was resistance from some young gang members. The gang leaders responded by saying that gang members would wear our company's uniform and accompany our employees on board the trucks in difficult areas. Gang members who resisted or people claiming to be gang members when they were not were beaten by gang members or disappeared. After several product deliveries gang members demanded that we hand over money in exchange for product because they found the product difficult to sell. People thought it was stolen, or that they could buy it cheaper at the market, and on other occasions police arrested people where they stored the product and required them to produce invoices issued by the company.
In early 2014 the gangs called the applicant to a meeting and told him that they would no longer accept product, at the insistence of ‘prison’, and instead required cash. The applicant conveyed this demand to the company’s management who in turn accepted the demand and approved payments.
The applicant was subsequently told by a leader of one of the gangs, MS, that ‘prison’ wanted to talk to him and so he spoke by phone to a person who told him that they wanted to raise the amount being extorted to USD$5,000 from USD$2,000 for their gang. This sort of coordinated leadership from prison is widely reported on as former characteristic of the gang structures in El Salvador.[1] During this call the applicant tried to negotiate the amount and instead was met by menacing threats. This new agreement which was extended to cover the other gangs was approved by the company’s leadership.
[1] >
The applicant became the ‘bag handler’ handing checks to the designated gang member that was then cashed and distributed to all the other gangs. The applicant would accompany the gang member to banks to have them cashed. When one gang member was arrested another would replace him but in one instance require the applicant to personally cash the checks while he remained in a car.
The applicant said that he received death threats from some of the gangs as a Colonel [named], accompanied by police, raided them asking about the payments. When he called the gang leader who he had contact with about the threats from the gangs that he was receiving, he was told that if it was an ‘order’ for them to threaten him in that manner then there was nothing that could be done.
The applicant wrote that between June and July 2015 Mr [A] called the applicant informing him that he knew of the investigation the company was conducting against him and that he was angry because of it. He said that this left him, the applicant and another employee [at] great risk. He also warned him that some part of the FMLN were targeting him.
In August 2015 the applicant received a summons from the national police. He was informed that an investigation had been initiated by way of a complaint by his employer and that it was focused on Mr [A] and his negotiations between the company and the gangs.
The applicant met with the investigator who asked questions that indicated they had detailed information about the deals the company had made with the gangs and how the payments were being made. This included the police having evidence of at least one occasion when he had been caught with a cheque that was to be used to pay the extortion money and on his phone the police found contacts for all of the gangs he dealt with. The applicant told the investigator that he was only doing what his bosses had instructed him to do.
After the interview he contacted the General Manager of his employer, told him what happened, and they arranged a meeting. At that meeting the head of the company explained that the investigation was triggered by an overly zealous lawyer and that they were withdrawing the complaint.
Through this process the applicant was warned of the risks he was running including by a former General Manager of the company. Realising the severity of the situation, the applicant approached the Office of Public Prosecution in an effort to share his story but after being warned about the possible consequences, he didn’t follow through.
The applicant was fired from his job in December 2015. He claimed that he wasn’t given a reason.
The applicant explained that on numerous occasions his neighbours told him that there were gang members stationed in front of his house. He believes that it was to intimidate him so as to make sure that he continues to make the payments and that they could harm him if he gave evidence.
In January 2016 the applicant complained to the police about the gangs. In February 2016 the applicant claims that he went to the Attorney General’s office to give evidence about the complaint. The prosecutor investigating the claim told him that they couldn’t help him and that he should escape from the country.
The applicant summarised his concerns as follows:
I felt betrayed and abandoned by the company for which I had put my life and that of my family at risk, I felt unprotected by the police and Prosecutor's Office, as the seriousness of my situation did not matter to them and they were only interested in obtaining a political advantage. I was in a state of panic over the gang members' threats, and was unable to sleep at night. I spent hours guarding the entrance to my daughter's school, as I was scared that the gang members would come and cause her some kind of harm. I felt ignored by the Church and I couldn't talk to anyone about it, not even with my wife. My state of depression, anxiety and terror made my health suffer, which is why I decided as a last resort to make the complaint to the police. I had been avoiding doing this as it was also a death sentence as the gang members would find out about my complaint against them and they would kill me and my family, as gang members were watching for me at all times at the exit of my house.
Considerations
The applicant fears harm from the gangs, both inside and outside of prison, as well as the government. The nature of the harm may well be that the government detains the applicant and while in prison he is harmed by the gangs. In considering the circumstances he faces I engage with the stages of his return and the context into which he will be returning to.
President Nayib Bukele was elected in June 2019 on a platform of dealing with the gangs. I noted at the hearing that the New York Times reports that, ‘Since he took office in 2019, intentional homicide rates have decreased from 38 per 100,000 in that year to 7.8 in 2022, well below the Latin American average of 16.4 for the same year. The crackdown Mr. Bukele has led on organized crime has all but dismantled the infamous street gangs that terrorized the population for decades.’[2] I noted that it has fallen further to 2.4 per 100,000 and that this compares to 68.6 when the applicant left El Salvador.[3] The applicant presented evidence from a Human Rights Watch report which states, ‘However, the lack of transparency and reports of manipulation make it hard to determine the accuracy of government reports or to estimate the true extent of the decrease in violence.’
[2] >
The imprisonment of individuals is being undertaken under a novel law referred to as the ‘state of exception’:
On March 27, 2022, after a wave of homicides, President Nayib Bukele summoned the Legislative Assembly to approve an emergency decree for 30 days with the intention of reducing gang-related violence. Since then, the Legislative branch has extended the state of emergency (or state of exception) 12 times, enabling the suspension of constitutional guarantees, leading to human rights abuses perpetrated by state security forces -including the military- and deepening corruption.[4]
[4] >
The state of exception remains in place as of September 5, 2024.[5]
[5] >
Arising from the state of exception the authorities can summarily detain someone they suspect has a criminal association. There is no basis to believe that the applicant is on a watch list and as such I find that upon arrival to San Salvador Monseñor Óscar Arnulfo Romero International Airport he would not be detained.
Once the applicant returned to his community, others would become aware of his arrival. As noted in his evidence, the applicant had gang members around his house, this could trigger a report to the authorities.
The applicant would be known to people in the company who knew of his role as an intermediary with the gangs. His return could trigger a report to the authorities.
The applicant is personally known to a small number of government officials having had various encounters with them including for the purpose of discussing his role in facilitating payments to the gangs. Crossing paths with some of these individuals could trigger a report to the authorities.
I am satisfied that the applicant would be identified by someone at some point into the reasonably foreseeable future. If it is by someone outside of the justice system, the government has set up a hotline to report on those with criminal ties.[6] As such I am satisfied that there is a real chance that having been identified he would be reported.
[6] >
The applicant provided numerous links to reporting that shows that the new laws are not only retrospective but are being applied to pursue those with past ties to gangs. As such I am satisfied that the applicant’s past activities are relevant in this context.
The applicant would then face a trial process. Due to the pressures of arresting so many people the country’s legislature approved a law that allows for mass hearings which can involve ‘up to 900 detainees at a time’. For pre-trial hearings, ‘Public defenders have been given three to four minutes to present the cases of 400 to 500 detainees at a time.’[7] Justice Sandra Luz Chicas of the Criminal Chamber of the Supreme Court of Justice warned that the laws had turned judges into ‘paper-pushers’.
[7] >
I note that country information suggests that up to a third of those imprisoned are innocent.
Mr. Bukele has rounded up some 81,000 prisoners to be held incommunicado under murky circumstances. Thousands of children as young as 12 are among the detained, and some of them have been tortured.
Many of their families have no idea what they’ve been charged with, where they’re being held, when they might be freed — or even, in some cases, whether they are still alive. The stories are similar: The police came one day, and their family member never came back. The detentions are so lacking in transparency and due process that it seems more appropriate to call them abductions or forced disappearances. Ingrid Escobar, the director of Socorro Jurídico Humanitario, said her legal aid organization’s research suggests that about one-third of those detained are innocent.[8]
[8] type="1">
That there is a wide-spread concern of a large number of innocent people imprisoned along with the use of mass hearings, particularly for pre-trial detention, leads to finding that the applicant’s complicated and nuanced story would not be given the attention that it would under a more transparent and ponderous legal system. Instead, under the circumstances he faces, the applicant will be put into pre-trial detention which would be among gang members.
It would be speculative to identify which prison or pre-trial detention centre he would be placed in, but it appears that due to the large number of incarcerated people, he would simply be put into which ever facility has availability. The conditions in these facilities are difficult:
[I]nside the prisons, dozens of people say they were tortured by prison security members, according to a report released by Human Rights Watch[9] and Cristosal and Socorro Jurídico. Some people who have been released from prison have recounted, anonymously, how they were tortured and beaten until they were unconscious, and how they were denied food or medical attention.[10]
[9] >
The prisons are overcrowded. As of late 2023 the prison population was 1.7% of the entire country’s population seeing a near 5-fold increase from 2020. It is estimated that the prisons are operating at double their stated capacity.[11]
[11] >
Once in a pre-detention facility or in a prison the applicant would be expected to share his backstory. I find that he would be unable to fabricate because of the small size of El Salvador and how fellow inmates would know the details of most parts of the country and the relevant communities.
I find that once details emerged of his role facilitating the payments between the company and the gangs any long-standing grievances against him would be identified. There is some country information that indicates that the gangs maintain a peace within some prisons and that the threat of violence isn’t from the gangs but rather from the prison authorities.[12] But the applicant has faced individual threats and has over the years refused many demands.
[12] >
When considering the risks the applicant faces, I find that there is a real chance that the applicant will be identified by a gang member and news of his past roles will emerge. I find that there is sufficient reason to believe that the applicant faces a real chance of serious harm from a gang member while in pre-trial detention or a prison because of his past. The evidence he has provided at the hearing and through submissions is that he has been threatened repeatedly, that he has refused the demands of lower-level gang members, and that he may be suspected of being a source of information against the gangs.
I have reflected on the applicant potentially being looked upon favourably by the gangs as someone who had worked with them, had provided income and resources to them, and had not, known to them, collaborated with the authorities. But in considering how the gangs will see him, as a friend or foe, I find that it will be the latter. The applicant knows too much. He knows who the individuals were who received the money, how much they received and in what form. He would be a very valuable witness to many prosecution cases. He would be too valuable for the gang leadership to allow to remain alive.
As an aside, it is also likely that the pre-trial detention in overcrowded prisons where country information indicates prison guards apply ‘beatings and psychological torment,’ and ‘restrict their ability to communicate with other inmates and the outside world,’ by confining them to their cells ‘around the clock.’[13]
[13] ibid
In considering whether the harm the applicant faces from the gangs is for the essential and significant reason of either race, religion, nationality, political opinion, or membership of a particular social group (s 5J(4)(a)), I find that only the latter is conceivable in the applicant’s circumstances.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
The characteristic the applicant shares with members of this group is of having been a representative of companies with gangs. The harm he faces is for reason of knowing how companies interacted with gangs.
I find that the harm he faces would be systematic and discriminatory (s 5J(4)(c)) as it will be targeted at him to eliminate the threat to gang members that he poses as an informant and witness.
While in most other circumstances the applicant could seek protection from the state (5J(2)), in this instance, the applicant faces prosecution by the state for other reasons, reasons that have led him to be incarcerated and confronted by the threat to his life from the gangs. In this situation the applicant could not go to the prison authorities to seek protection as there is no way that in a crowded prison system he could be protected, nor is there a basis to accept that he would be protected.
I also find that the applicant cannot modify his behaviour as it is the actions that he has already undertaken that are known to the authorities that will lead him to face serious harm (s 5J(3)).
I find that the applicant cannot relocate as he would be detained in pre-trial detention or in a prison (s 5J(1)(c)).
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
I have also considered whether according to s 36(3) and whether the applicants have ‘a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’
Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
This means that where a non-citizen has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply.
The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35 has held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.
In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s 36(3) does not apply because of the operation of s 36(4), (5) or (5A).
Four Central American countries, El Salvador, Guatemala, Honduras and Nicaragua have a mobility agreement between them known as CA-4.
While the CA-4 treaty facilitates legal movement between the four countries, many policies regarding the rights of foreign citizens are determined at the national level in the countries’ respective constitutions and migration laws. Hence, while the CA-4 may allow nationals of the participating States to move with few restrictions, the extent to which they are able to access social services, or engage in local labour markets, is still highly dependent on the individual legislation of receiving States.[14]
[14] >
While I accept that the applicant has the right to enter any of the three other states of the CA-4 agreement, there is a question of whether the applicants can reside in any, as noted above.
The applicant was given an opportunity to respond to this in writing.
The applicant wrote that the CA-4 Agreement does not provide any rights other than visa free entry. The representative referenced limited information unfortunately despite the applicant being an educated native Spanish speaker who should have been able to access the relevant information with ease.
Nevertheless, based on the information available to this tribunal I will engage with the applicants’ rights to reside (as opposed to enter) each of the three CA-4 countries.
Nationals of the CA-4 entering Honduras require a work permit.[15]
[15] >
El Salvadorians entering Nicaragua can do so with ease, but this requires the purchase of a tourist card which by inference suggests that a work permit or residency would be required to stay for a longer term.[16]
[16] >
For Guatemala, nationals of a CA-4 country require a work permit.[17]
[17] >
A report by the Migration Policy Institute from June 2024 was identified which states the following:
The convention allows nationals of these four countries to travel to other participating countries with only a national identification document and without a passport for up to 90 days.65 The convention does not, however, provide employment authorization or a pathway to temporary or permanent residence.[18] (italics added)
[18] >
There being no evidence before me that citizens of El Salvador such as the applicants have a right to reside in another country as opposed to going through a process which may or may not provide them with temporary residency, I find that the exception to Australia’s protection obligations under s 36(3) is not met.
In addition, to acknowledge the applicant’s other submissions, he identified a fear of relocating to one of the CA-4 countries as including being harmed by the same gangs and potentially refouled as, giving one example, he would be required to provide a police clearance certificate from El Salvador which would then trigger the government’s knowledge of his whereabouts and potential request for extradition.
The applicant also put forward claims on behalf of his wife and daughter. Further information relating to the claims of his daughter were provided in writing but unfortunately after the hearing. The claims were based on general violence including the trafficking of women. But I noted that the crime rates had severely dropped because of the government’s crackdown. I suggested that the risk is remote of the second and third named applicants being harmed. He said we need to wait a couple more years to see how things settle as it may not be a stable situation. He said that he doesn’t have a positive vision for El Salvador’s future based on his own experiences.
In considering these claims I note that the ‘state of exception’ began in 2022 and that the crime rate rapidly reduced thereafter. But I also accept that locking up nearly two percent of the population, nearly all males, is not a long-term solution. It is not clear what the government of El Salvador plans to do into the future. This would lead to an increased level of risk that the women would face now. But, even so, noting that the crime rate is at record lows, that the government will not be returning the inmates onto the streets into the reasonably foreseeable future, I find that the second and third named applicants do not face a real chance of serious harm or a real risk of significant harm.
As such, I am not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, I am satisfied that the wife and daughter are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Denis Dragovic
Senior 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.
…