2200917 (Refugee) - [2025] ARTA 2166

2200917 (Refugee) [2025] ARTA 2166 (19 September 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2200917
Tribunal:Senior Member D Dragovic
Date:19 September 2025

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 the applicants meet s 36(2)(a).

Senior Member D. Dragovic

Statement made on 19 September 2025 at 3:37 PM
CATCHWORDS
REFUGEE – protection visa – El Salvador – political opinion – supporting transparency against corruption – extortion by gangs – escalating threats – discovered corruption – intimidation – threatened with knife, held at gunpoint, kidnapped and beaten – offered protection group – corruption hidden by colleagues – colleagues charged – fears vengeance – change of government – cracked down on corruption – state is the persecutor – violence still exists – State of Exception – no judicial function – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Prathapan v MIMA (1998) 47 ALD 41
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 18 January 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are nationals of El Salvador. They applied for the visas on 2 March 2020. The delegate refused to grant the visas.
The applicants appeared before the Tribunal on 27 August 2025 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. The representative attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 set aside and remitted for reconsideration.
REASONS AND FINDINGS
The first named applicant is [an age]-year-old male from El Salvador. He is married to the second named applicant, [an age]-year-old female from El Salvador. They have two children, but only one, their youngest, has applied for asylum and is the third named applicant. Their eldest child resides in [Country 1] and is undertaking studies there.
The applicants first experienced harm in 2010, when the second named applicant began receiving calls, asking about the first named applicant and threats were made. The applicants changed their (landline) phone number but after a few weeks the calls began again. They changed their number again and registered it as a silent number, but this did not help. The calls continued, with the caller wanting to speak with the first named applicant.
At one point while waiting for a bus the second named applicant was approached and told, ‘don’t be stupid, pass on the calls.’ They told her that she needed to pay $[Amount 1] per week. At this stage they knew that such extortion by gangs was happening around the country.
Due to the escalating threats the applicants complied with the demands and paid the $[Amount 1] on a weekly basis commencing November 2010. In February 2011 the demand increased to $[Amount 2]. Around the same time a bus driver was murdered in front of their house, and it was believed that the reason was that he had not paid the demanded extortion.
The applicants moved to a gated community in September 2011, continuing to pay the money through to August. They moved gradually so it wouldn’t raise any suspicion. The new house was among a group of forty and had a single entry, security gate, and an armed guard. It was also on a different side of town, away from their old neighbourhood. In addition, they implemented various precautions such as travelling different routes each day to prevent being followed and they claimed to have moved their daughter’s school.
I noted, though, that they continued to work in the same jobs which would require them to go to the same locations. The applicants suggested that their jobs took them to different offices, but I note that later in the second named applicant’s evidence she said that she had to spend one day a week in the main office to complete her administration duties. Similarly, they claimed that they had to change their daughter’s school but when asked about the date she changed schools, it was given as 2014. When I suggested that this didn’t indicate a real fear, they said that they would pay for private transport from the gated community directly to the school.
The applicant said that the dominant gang in their area was MS-13. I noted that this was one of two main gangs in El Salvador and yet for eight years nothing happened to them despite fleeing the extortion demands. He said that the measures that they took at the time helped.
I asked if it was possible that the extortion was driven by a local gang or local leaders and so when they moved out from the neighbourhood, these men lost touch with them. The second named applicant acknowledged that this was possible as there were small groups that were forming in their area.
Nothing further happened to the applicants through to 2019.
In 2019 the applicants began receiving threats related to the second applicant’s work as [an Occupation 1] for [Employer 1]. One of her [projects] was in the offices of [District 1]. Two [issues] stood out in her preliminary work—[project details]. She would request information by way of a letter but would get limited documentation in response.
Identifying possible fraud in these [issues], she sought information from [Mr A] and in turn received indirect and direct threats. Initially there were instances that caught her attention such as a young man coming into their offices and appearing to assess the security, papers and personnel; and being followed by a car as she was being driven in her [vehicle] by a driver.
Later, the same driver informed her that they were being followed again.
Following these events, she considered reporting the incidents to the [council], but her driver suggested not to as their offices could be infiltrated. She said she reported it to [Employer 1] only after another event.
[In] May 2019 while working from the [Employer 1] headquarters, as she was leaving the offices a young man approached her and said, ‘be careful with [reporting your findings]’. He also mentioned her daughters’ names and where they were studying and where her husband was working. She became very nervous.
She then told her immediate boss, ‘[Boss A]’. The response he gave was as if nothing happened. He said that it wasn’t necessary to file a report. I asked whether it was ‘nothing’ because it happened to others; she said that she didn’t know. She hadn’t heard at this stage of other [colleagues] being threatened or harmed. I questioned how this could be considering that corruption was so extreme at that point and their job [exposed them to] corruption and yet she claimed that she had not heard of any threats or harm. She said that you don’t spend much time [with each project], suggesting that she [quickly moved onto the next project]. I asked if it was fair to assume that as she hadn’t heard that it happened to others then it didn’t happen as she works in a team, people talk, newspapers report etc. I asked if it was fair to assume that no one touches the [Occupation 1s].
She said that on the news [Occupation 1s and heads of their] teams have been accused of [hiding corruption] and being prosecuted. She said she knew of people who were unwilling to participate in the corruption and instead fled the country and sought protection. She said that [Boss A hid] critical findings. She believes that he would have received money for doing this. She told him later that this was wrong, and against the ethics they had sworn to uphold, and that she wouldn’t agree to it. He is reported to have asked rhetorically, what is the big deal about taking out one finding.
The applicant also made a written submission to the [Head of Employer 1] and other relevant individuals recording these incidents. The letter, dated [May] 2019, was provided to the Department. She also made a report to the police dated [June] 2019 covering the same concerns.
The third named applicant also gave evidence. She described two incidents, both of which involved direct reference to her mother’s situation. Both were in May 2019.
The first involved men who had followed her onto a bus and off a bus before naming her mother and mentioning her work at [District 1]. She walked away and as she was leaving, they told her that unless her mother was not careful about her work that both she and her father would pay for it.
The second incident occurred not long after as she got onto a bus and a man sat next to her, held a pocketknife against her abdomen and told her another man was behind her and that she should not make a sound. The man told her that her mother was not following instructions and that next time she would not live.
The above mentioned letter to the [Head of Employer 1] only refers to the incidents that the second named applicant encountered and not those of her daughter, which I find is vexing.
The first named applicant was kidnapped in June 2019. He had a gun pointed at him and was taken away in his own car. They threatened to kill him. When they stopped the car, they took his wallet and watch and beat him and then they left. The applicant believes that this was a warning relating to his wife’s work. He claimed at the hearing that they told him that he was going to have to pay for his wife’s work. But I noted at the hearing that at no stage had he made any such claim in his written statements that related the kidnapping to the incident to his wife. He had only written, ‘they said that I was going to pay for everything.’ I noted that his written statement only supported an assumption of a connection but no clear statement that it was connected. He thought that there may have been an issue with the interpretation. He later added that as they didn’t take his car it wasn’t a robbery and instead must have been for other reasons.
In post-hearing submissions the applicant submitted a statutory declaration that the pressure of the hearing helped him remember the details and that what he said at the hearing was correct whereas what was provided in writing was incomplete because he had blocked out the details. In his post-hearing statutory declaration he wrote that the words said by the kidnappers was, ‘You’re going to pay for what your wife is doing.’
After [completing her part of the project] in November 2019, the family were driving to the first named applicant’s parent’s house and a motorcycle pulled alongside indicating to pull over. He took out a gun, knocking on the window. The applicant continued to drive even after a second motorcycle appeared. The applicant continued to drive without taking any defensive manoeuvres and the motorcyclists dropped back. He believes that this happed because they would have thought that he was armed and as such wasn’t afraid of them. They tried to direct him to pull over, but he ignored them and then took a number of turns to lose them, which he did.
I asked about her two colleagues and whether anything happened to them. She initially said no. When I explained that this is relevant because they are also aware of the corruption and could be targets just as she is, initially she said that she was [an Occupation 1], and it was her [name allocated to the project]. But I noted that it was the knowledge of the corruption that was relevant and not who [completed the project]. She said that it was her responsibility. I again explained that it was the knowledge of the corruption and were she to return to El Salvador there would be three people (her and her two [colleagues]) who knew about the corruption, and nothing has happened to the other two. At this point she said that the two [colleagues] were now abroad having left in early 2020, one to [Country 2] and one to [Countries 3 or 4]. I asked why she hadn’t told me that initially when I asked if anything happened to them, she said that she didn’t understand the question. She said that she didn’t know when they left and only knew that they had left because she still had her phone from El Salvador in the early months of her arrival to Australia, and they had sent her messages that they were leaving the country and asking about her whereabouts.
She said that the message was received by her when she was in [Country 3]. I noted that she had earlier said it was when she was in Australia. She then clarified that [Boss A] had been detained around that time and they had seen those reports. The news reports suggest that the arrest of [Boss A] was in February and therefore after she had arrived in Australia. When this was clarified she said that she may have been confused between the months of January and February.
In a post-hearing submission, she included a statutory declaration that addressed this issue. She explained that when she said that the other [employees] had not been harmed, she was responding to the question literally, in that they had not been harmed because they had left the country. She wrote that she had mentioned in her earlier statutory declaration that other [employees] had been targeted and fled the country. She said that she can’t confirm whether the two [colleagues] received any threats as, although they never mentioned receiving threats, they may have. She also claimed that both had left around the same time as she had.
In post-hearing submissions a [Social media 1] chat was provided between the second named applicant and one of [her colleagues]. It was translated as:
Hello, I’m [the second applicant]. I hope you and your family are well. I remember that a few years ago you told me you were leaving the country. And I would like to know where you are.
Hello, yes, I left the country with my family; but for personal reasons, I prefer not to cmment on where we are.
The second named applicant provided context to the situation of [Boss A]. She noted how despite facing charges and an ongoing investigation including having to wear an ankle bracelet, he continues in his role at [Employer 1]. She supported this claim by providing a photo from a [Social media 2] post that showed the staff of [Employer 1] and identified [Boss A] as one of the people in the photo.
The applicant also argued in post-hearing submissions that because both [Boss A] and the [Occupation 2 of Employer 1, Mr A], are currently facing criminal proceedings yet continue to hold their positions [at Employer 1] despite being bailed and wearing ankle bracelets suggests that they have political backing because they were not removed from their posts. This also shows that the system continues to be corrupt.
It could, or alternatively I note that the article provided to the Tribunal notes that [Boss A] is the ‘honorary’ [Occupation 3] which may suggest that he has been put on paid leave for the duration of the investigation.
The applicant named [who had targeted her as Mr A]. She said that he is no longer involved in politics. But he was [involved] for ten years and as such he would have contacts to gangs and the FMLN. She believes that he will have an ongoing interest in targeting her as it was after her meeting with him, when she had outlined her concerns, that the incidents started to happen. She believes him to be vengeful and that he will continue to target her and her family as she didn’t comply with his demands.
She believes that the [project] was cut. She believes that it was cut because of her findings.
She believes if she returns, she is the only witness who can testify to his wrongdoing.
In December 2019 the applicant claims that he was approached by two ‘gang-like’ people who handed him a phone, he was told by the person on the other end of the phone that he had to pay [Amount 3] to not be killed and was given details about his life and family. He was told to carry the money with him as they will approach him at any moment over the ensuing days. The applicant also associated this incident to his wife’s situation in part because they mentioned his family. He was surprised when I said that in his written statements there was no mention of an overt link to his wife’s work and that nothing was written as having been said by the extortionists relating to his wife’s work.
I explained to the applicant that the question of whether the kidnappers and the extortionists mentioned his wife’s work is relevant because during this time there was a high level of gang violence and that he was kidnapped, or [Amount 3] was demanded, is not unexpected from the situation of El Salvador at the time. But when he claims that the people who confronted him directly mentioned his wife’s work it is a different motivation.

The applicants referenced a police report and claimed that reference to the wife by the extortionists demanding [Amount 3] would have been included. But when this report was found and reviewed at the hearing, it was clear that no such claim was made.
Upon further clarification and discussion with the applicant he changed his evidence to say that there was no direct mention of his wife during the December 2019 extortion event.
As with the kidnapping incident, the applicant wrote in his post-hearing statutory declaration that he had been able to remember what was said in this incident only because of the pressure of the hearing. He confirmed in this statutory declaration that the original evidence he gave at the hearing was correct. He said that he gave a full account of the incident to the police, but the police only summarised in their report.
The applicant explained that he went to the police after this incident, but their response was that his case would be entered into a ‘protection group’ and that he would be given a phone to hand to the gangs so that the police would speak with them the next time they approach him. He thought this was ridiculous, at which point they decided to leave the country.
The third named applicant claims that her grandfather has told her that people continue as recently as this year to ask about her father returning and when he will return. She says that her grandfather doesn’t know these people and so just ignores them and keeps walking. I suggested that this could be polite interest by neighbours asking about her father. She said that the grandfather didn’t know the person and he had lived there his whole life.
The second named applicant confirmed that she can’t return to her role [with Employer 1] as she is no longer employed there.
The second named applicant provided a screen shot of her [Social media 2] account which included a request for connection by [Boss A]. She expressed concern that he she remains on his radar.
As the applicants had valid visas to [Country 3] they left [in December] 2019. Once there they applied to visit Australia and arrived [in] January [2020].
Country information
In 2019 El Salvador saw a new President elected, Nayib Bukele. Mr Bukele immediately began an initiative to reduce gang violence, but it wasn’t until 2022 that he initiated a nationwide crackdown that has put and additional approximately 85,000 people into prison.[1] He has undertaken these measures by declaring a State of Exception.
[1] >
I noted that the crime rate has substantially dropped since Bukele’s state of exception. I noted that there are fewer homicides than in the US and Canada. I put to the applicants that this suggests that even if people remember them, they have so many other problems to deal with that they would not be motivated to take the risk to harm the applicants. She said that they want to harm her because [Boss A] is free and that she could be a key witness. Because of the State of Exception anyone who wants to harm you just has to make a call to accuse you of having relations with the gangs and the authorities are not required to follow due process as the constitutional rights have been suspended. They can take you prisoner; you have no right to a lawyer, and they don’t provide the family with information.
I noted that this is theoretically possible, but I have to consider whether there is a real chance that it will happen. She said that because she is a key witness it will.
I asked why the government would investigate her on the basis of an anonymous call accusing her of being a member of a gang if they would value her as a witness in a corruption case. She said that they don’t investigate but just detain people.
I noted that the projects she identified would have involved small dollar figures of corruption relative to the headline value of the projects. I noted that [Boss A] was being investigated for corruption on a $[Amount 4] project according to the news articles provided by the representative. If that is the size of corruption in the country, I questioned why anyone would mobilize resources to harm her for the much smaller amounts she identified. She said that while the news picks up the larger figures there’s a lot of smaller corruption.
In her post-hearing statement, she explained that despite the amounts she identified being relatively small compared to the headline figures underpinning the current charges against [Boss A], she claimed that nevertheless, those relatively small amounts are public money.
I noted that the Bukele government has cracked down on corruption such as the investigations of [Boss A] and [Mr B] and asked whether the risks to her would be reduced because of this crackdown. She said that another [Occupation 3] was accused of [hiding corruption], at a time when Bukele was not in government. She was removed from her role as [an Occupation 3] while they were carrying out the investigation. She noted that the investigation of [Boss A] has not led to him being removed from his role. She suggested that this indicated that proper processes were not being followed.
The applicants argued that gangs continue to operate in the country despite the crackdown. The applicants said that the gangs haven’t been eradicated. This is supported by news articles submitted by the representative that reference reporting on secret deals made between Nayib Bukele leading up to his electoral win and gangs in his area. One article states, ‘Deutsche Welle en Español, from Germany, conducted a consultation with experts and maintains that, if this is confirmed, it would reinforce the fact that gangs continue to have power in the country.’[2]
[2] >
The Applicant asserts that, because she explicitly named [Mr A] and members of the council in her [findings], that this provided a strong motive for [Mr A], council members, and affiliated gang members to target her and her family. Although these findings were later removed by [Boss A], the applicant maintains that, given her knowledge of [Mr A] and council members’ involvement in the fraud, she and her family would remain at serious risk of harm if returned to El Salvador.
She said that even though [Mr A] no longer holds a political position, he was [involved] for ten years and has contacts to the FMLN and gangs. When ask why he would care about her considering that he was not impacted by her, she said that there is a cleaned-up [record of her findings]. She said that [Boss A] did not [hide her findings] on his own. She recalled that she was threatened when working on that project and identifying [Mr A] and the councillors.
Associated with the risk from [Mr A] is the risk from [Boss A]. The applicant fears her supervisor, who is currently under investigation, as she could be a key witness proving that he [hid the corruption].
After noting the $[Amount 4] corruption case would already have been made out with supporting evidence before [Boss A] was charged and as such, she would not likely be a witness, the representative noted that the relevance of the applicant’s evidence against [Boss A] can extend to sentencing and not be limited to the current case that is being pursed against him.
In the post-hearing statement, the applicant persisted by writing that she fears harm because she is ‘a witness’. To avoid doubt, it was confirmed at the hearing that she is not a witness but could potentially be one only if the prosecutors believe it necessary albeit potentially at the sentencing stage.
The representative added that there is a level of desperation by people being investigated now considering the severity of the government’s crackdown and as such they may act more stridently to protect themselves from the evidence the second named applicant can give.
She fears that the State of Exception will be used against her by [Boss A] or anyone else. That this allows the police to detain a person without investigation and they are not afforded the right to a lawyer. She notes that [Boss A] has used different means to try to silence her, which she associates to the threats that she and her family received, but also to now trying to find her by reaching out on [Social media 2]. She believes that because she had confronted him about the [findings at District 1] he feels threatened.
To avoid doubt, it is unknown who was behind the threats to her and her family and as they began before [Boss A] cleaned the [findings] it is highly unlikely that it was [Boss A] who was trying to silence her.
The applicants’ primary source of fear arises from the second named applicant’s activities as an [Occupation 1]. She [completed her part of the project] in November 2019 [and] found that corruption had occurred. She had been warned not to [mention] such findings and when she nevertheless did her supervisor [hid the] critical findings. As such she fears those involved in the corruption and her supervisors ([Boss A] and [Mr B]).
On the one hand, some time has passed, [Mr A] has retired, [Boss A] and [Mr B] face other problems and a new government has cracked down on violence such that most gang members, potentially those who carried out the intimidation and threats against the family, are behind bars.
But this situation can be interpreted in a different way. The current charges against [Boss A] and [Mr B] arise from a 2013 [project] that led to a 2015 report and charges were only laid against them in 2020. This timeframe indicates that the passage of time is irrelevant. It suggests that the current government is looking back to the past to pursue corrupt actors.
The return of the second named applicant to the country would be eventually known by those involved—it is a small country and other than going into hiding, it is reasonable to assume that through former colleagues or friends, [Boss A] and [Mr B], would learn of their return and in turn so too would [Mr A] and councillors.
How would they react knowing that the government is pursuing historical corruption?
I find that first named applicant’s evidence and his efforts to remedy the flaws in his evidence unconvincing. I do not accept that the incidents he narrated included direct references to his wife’s actions as opposed to mentioning his wife and family members as appears to have been the modus operandi of gangs at that time in El Salvador.
The second named applicant came across at the hearing as principled when it came to her work. Despite some of her evidence in support of her claims being confused, if not intentionally misdirecting, I have not made a finding of credibility against her.
The second named applicant’s commitment to her oath as an [Occupation 1] and in turn her responsibilities were a defining feature of her evidence. If I arrived at such a conclusion after a few hours of discussions with her at a hearing, then it is reasonable to assume that her former colleagues would have a similar view.
The assumption by [Boss A] and [Mr B] would be that this righteous person who refused to bow to threats and refused to alter [findings] has voluntarily returned to El Salvador believing that the country has changed under the Bukele government. They would not know that she sought asylum but had failed.
They would assume that she would be willing to testify in this new El Salvador.
As the representative noted, the consequences to all involved is no longer a bribe to be paid to the next government official, but potentially a sentence that includes prison time in one of the overcrowded prisons. One report on the prison conditions notes, ‘We have documented systematic physical beatings, torture, intentional denial of access to food, water, clothing, health care. And the combination of both the physical abuse and the denial of basic needs has led to the death of at least 368 people, according to our investigations.’[3]
[3] >
Under these circumstances the ramifications of allowing the second named applicant to provide evidence on the existing case or potentially resurrect her findings in her case, could be high.
But just as the prisons may motivate some of those involved to act against the applicant, so too they may dissuade anyone from acting as being caught engaging with gangs to intimidate, threaten or harm the applicants could equally put them at risk.
I must somehow decide how these, half a dozen or so individuals, who have not appeared before me and have not provided any evidence will act under these circumstances. There is no rational or logical path that one would take in this scenario.
As there are several people who could potentially decide to draw on their networks, who may feel compelled to pre-emptively act, it raises the odds that one will. And all it takes is one.
As the test is whether there is a real chance, not a balance of probabilities, that one will act I find that there is. I also find that the manner in which they will act is with finality, that is that some gang will harm one of the family members such that there is no warning. I find that such harm will amount to serious harm.
In this case, I find that the harm arises for political opinion in that the second named applicant’s actions were to stand up for transparency against corruption having expressed that in her meetings with [Mr A] and [Boss A]. I find that in response to a perception of being principle in her work, her political opinion is the essential and significant reason for the harm (s 5J(4)(a)).
In considering whether the harm any of the applicants face would be systematic and discriminatory (s 5J(4)(c)) I note that it would be planned as a pre-emptive strike to prevent the second named applicant from acting against them. As it would be planned, it is systematic; as it would be targeted, it is discriminatory.
For the same reasons the applicant cannot seek protection from the state as the state is the persecutor (5J(2)). Due to the changes in El Salvador, the government has been able to resume its role as holding a monopoly of force. But violence hasn’t been eliminated, homicides continue to occur, and the state’s wielding of its power is unchecked under the State of Exception. Were the applicant to immediately seek state protection as a witness she could be safe, but its unclear that the authorities operate in a systematic manner. Much of the reporting is that the state wields its power capriciously. Was she to go to the state, could someone more powerful also go to the state? The dynamics of how El Salvadorian police operations are opaque.
In Prathapan v MIMA (1998) 47 ALD 41 the concept of state protection was considered, and one view was for an applicant to have available protection it would require that there is ‘a reasonable level of efficiency of police, judicial and allied services and functions, together with an appropriate respect on the part of those administering the relevant state organs for civil law and order, and human rights, in a modern and affluent democracy.’
Under the State of Exception, there is no judicial function. While the police are efficient, some would say overly efficient, the other aspects to what would be required for state protection are lacking.
As such I find that the applicants cannot seek state protection.
I also find that the applicant cannot modify her behaviour as it is the actions that she has already undertaken that are known to the potential persecutors that will lead her or her family members facing serious harm (s 5J(3)).
I find that the applicants cannot relocate as El Salvador is a small country and the second named applicant’s return and whereabouts would be quickly known, and in turn she would be accessible to the state’s security forces or the gangs (s 5J(1)(c)).
For the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a).
I have also considered whether according to s 36(3) the applicants have a ‘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.’ There is no evidence before me that citizens of Iraq such as the applicants have a right to enter and reside in another country apart from Australia. As such I find that the exception to Australia’s protection obligations under s 36(3) is not met.
DECISION
The Tribunal sets aside the decisions under review and remits the applications for protection visas for reconsideration, in accordance with the orders that the applicants meet s 36(2)(a) of the Migration Act.
Date of hearing:   27 August 2025
Representative:  Mr Simon Leske
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.
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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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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