2206731 (Refugee)
[2025] ARTA 1256
•23 April 2025
2206731 (Refugee) [2025] ARTA 1256 (23 April 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 2206731
Tribunal:General Member R Lee
Date:23 April 2025
Place:Perth
Decision:The Tribunal affirms the decision under review.
Statement made on 23 April 2025 at 9:26pm
CATCHWORDS
REFUGEE – protection visa – El Salvador – imputed political opinion – threats and beatings by anti-government groups/criminal gangs for imputed support of government as undercover policemen or informer – two relatives killed – profile as returnee – delay in applying for protection – arrived on visitor visa with intention to return, applied for then withdrew application for student visa and granted bridging visa on departure grounds – inconsistent information in visitor and protection visa applications – post-traumatic stress disorder – credible evidence – past interactions with gangs accepted – country information – government’s state of emergency and anti-gang actions, fall in homicide rate and return to daily activities – recent USA deportation policies – smarttraveller advice – risk of violent crime faced by general population – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), (4)(c), 36(2)(a), (aa), (2A), (2B)(c), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
BBK15 v MIBP (2016) 241 FCR 150
MIAC v SZQRB (2013) 210 FCR 505
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIAE (1992) 34 ALD 347
SZSPT v MIBP [2014] FAC 1245
2101427 (Refugee) [2024] AATA 4071Any 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 12 April 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant first arrived in Australia [in] February 2016 and has not departed since.[1]
[1] Movement record – 26 July 2024.
The applicant who claims to be a national of El Salvador, applied for the visa on 11 October 2016.[2] The delegate refused to grant the visa on the basis that they did not accept the applicant was/is of interest to gang members or that he would be targeted for a s 5J(1)(a) reason, or that there was a personal risk to the applicant.
[2] The applicant signed the application on 9 October 2016 and it was stamped received by the Department on 11 and 17 October 2016. The delegate referred to the date of the application as 11 October 2016. Nothing turns on this.
The applicant appeared before the Tribunal on 5 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother-in-law and accepted the statutory declarations of the applicant’s sister and his brother-in-law. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages. The applicant’s sister and brother-in-law were present throughout the hearing as the applicant’s support.
The applicant was represented in relation to the review.
BACKGROUND
Evidence before the Department
Whilst in El Salvador, the applicant applied for a visitor short stay visa to visit family:
(a)on 26 September 2015, saying he needed to be in Australia between 15 and 18 September 2016, as his sister was treating him as a gift for his [age] birthday and the time in Australia would be from 15 February to 15 March 2016; and
(b)on 4 November 2015, saying he needed to be in Australia on 18 February 2016 for his birthday and his sister would like to offer the trip as a gift, and the time in Australia would be from 10 February 2016 to 10 May 2016.
There was an undated letter from the applicant’s employer, advising that the applicant was going on holiday to Australia and his position as [an occupation 1] of their products would be available to him on his return to El Salvador.
[In] April 2016, the applicant obtained a document from the El Salvadorian Ministry of Justice and Public Safety National Board for Penal Centres saying that he has no criminal record.
On 30 September 2016, the applicant applied for a bridging visa, in which he advised that he was making arrangements to return to El Salvador and would provide tickets in October 2016. It was granted on 30 September 2016, with the applicant to depart Australia by 14 October 2016.[3]
[3] The application is stamped received 30 September 2016, although it is signed 30 September 2015 and refers to October 2015. The Tribunal has taken the references to 2015 to be incorrect.
[In] October 2016, the applicant obtained a El Salvadorian police clearance certificate, saying the applicant has no criminal record and no criminal proceedings pending.
According to information contained in their protection visa application, the applicant is a [Age]-year-old El Salvadorian citizen who was born in [District 1], La Paz, El Salvador. Further, the applicant:
·was unsure of his ethnic group but was born to El Salvadorian citizens;
·was Catholic;
·had never been married or been in a de facto relationship;
·completed Year 4 primary school in [Year];
·was unemployed, but in El Salvador worked as [occupations/job tasks];
·obtained their El Salvador passport [in] 2015;
·can speak, read, and write in the Spanish language;
·had not undertaken any overseas travel in the last 30 years; and
·was making their own claims for protection and received assistance from an interpreter and an agent to complete the application.
In relation to their claims for protection, the applicant claimed in a Statement of Protection Claims dated 8 October 2016 (Statement of Protection Claims) that they left El Salvador because he was a street vendor who was threatened by the anti-government groups MS13 and MS18, on account of his imputed political support of the government. He was accused of being a government agent/informant. The Tribunal notes that the Statement of Protection Claims was subsequently amended by the 2024 Declaration, referred to below.
The applicant provided statutory declarations dated 5 October 2016, about not being involved in or convicted of any crime, and 4 January 2022, about his old national ID card being incorrect in saying he was [an occupation 2], and his current national ID card being incorrect in saying his profession is [occupation 3]; and submissions about no right to enter and reside in [Country] of 11 October 2016.
Protection visa application interview
The Department invited the applicant to attend an interview, which was held on 6 January 2022. The applicant gave the following oral evidence:
(a)he did not suffer from any memory or thinking problems, nor did he have any mental health or other illness which may interfere with his ability to participate in the interview;
(b)he is not married, nor does he have children;
(c)he does not know about his siblings’ lives in El Salvador. He has contact with them only when they contact his sister in Australia;
(d)he does not work in Australia, and is supported by his sister and brother-in-law;
(e)his work in El Salvador was as a street vendor selling [products] from 2008. Before that he worked in a [company];
(f)he did not have difficulties from the authorities when he left El Salvador;
(g)he lived in [Location], [Suburb 1] which is 55 to 60km away from [District 1], La Paz, El Salvador from when he was [Age] years old (1977) until 1990/1992. He spent most of his life in the central area of El Salvador, named [District 2]. After 1992, he lived in [District 3] for 22 years. He then lived with his niece in Colonia [Suburb 2], San Salvador, where he had been living when he left for Australia;
(h)when asked for the reasons he left El Salvador, the applicant said because of the death threats which he received from M13. He could tell from their tattoos. The M13 made those threats because they were confused thinking he was a policeman, but he only went to the suburbs to sell his stuff. The first time was around 2013. He was in the suburb of Colonia [Suburb 3]. They checked his suitcase and asked if he was carrying a gun in his case. He said, no, he was just there to sell his goods. They asked for his ID, but he only had his tax file number with him. They told him he was a policeman, and he said no, he was a seller. Then they said they would let him go, but he should not return to that suburb. When asked if they made any threats, the applicant said they said if he returned, they would kill him. He did not return;
(i)the second time was around September 2013. He was in Colonia [Suburb 4], two of the M13 group came up when he was carrying his case to a store. They lifted his shirt up to see what sort of belt he was wearing, which the delegate described as a normal belt, but they said only the police wear that sort of belt. The applicant said he thought it was because he is a [physical description]. They took out their guns, but suddenly there were two policemen coming towards them down the street, and the M13 ran away. The applicant did not know if these men were linked with the first attackers, but said they communicated with each other within the group. He never went back to that suburb;
(j)the third time was in Colonia [Suburb 5] in 2014. Three men from M18, again known from their tattoos, appeared, they checked his case, and told him that he was a policeman. They took off his shirt and shoes, and they took him to a cliff, they made him stand at the age of the cliff and put a gun to his head. Two said to the one with a gun, kill him. The applicant closed his eyes and started praying. Then one of them changed his mind and told the others, to let him go, he is not a policeman and then the applicant opened his eyes. They told him to get his shoes and shirt and leave. He never went back to that Colonia again;
(k)the last time was in [District 3], when the applicant was going home after a day of work roughly at the end of September 2014. There were three different men from M18 who made the applicant kneel down, they checked his wallet, they took his ID card, and then starting to beat him including about the head. One of the group had been killed in a place where the applicant had been selling his goods. They said not to report the event to police, as they had identified him and could start with his family as well as him. The applicant gave himself first aid in his house, and then he went to his niece’s house. He had had his ID card on this occasion because he was going to pay his electricity bill;
(l)the applicant went to his niece’s house, because the young men had his address from his ID and could kill him if they wanted. When asked if they made any threats, the applicant said that now that they had his ID card, they could come to his place to kill him and start in on his family. When asked for the motivation, the applicant said they also mistook him for a policeman. When it was noted that if they wanted to kill him, they could have done so whilst beating him, the applicant said he had prayed, and God protected him;
(m)the applicant said the M13 and M18 groups thought he was an informant for the police, because he was getting into all the Colonia’s to sell his goods;
(n)after the applicant went to his niece’s house, he took refuge because he was scared. Whilst there, his sister travelled to El Salvador in November 2015. In between the fourth attack and his sister travelling to El Salvador, the applicant looked after his mother and worked in Colonia’s which were more secure and not dangerous. He explained to his sister the problem and the death threats he had received. She told him she could take him out of El Salvador, because it was not good to receive death threats;
(o)the applicant said he could not go back to El Salvador because these men had his ID and have infiltrated some government organisations, so he could be killed. When asked why, the applicant said because after being away five years, they will send someone to kill him, without letting him know in advance. When asked why, the applicant said because of their belief that he is an informant for the police. When ask what he thought would happen to him on his return to El Salvador, the applicant said he did not trust the protection of the El Salvadorian government, because M13 and M18 had infiltrated the government organisations;
(p)When asked why these people are still interested in the applicant, the applicant said because they believe that he jets into the colonia’s to get information of where they are, and he can pass that information onto the police. He does not trust his safety anywhere in El Salvador;
(q)the applicant said they have already started killing his family, being two sons of his aunts (he referred to them as nephews) in 2016. When asked who killed his nephews, the applicant said he did not know, but believed it was M18 people. He does not know why. They were killed on different dates; and
(r)his education was very basic, and he relied on his brother-in-law in filling in his protection visa application.
The delegate listed his concerns as to the timeline of making the protection visa application, which raised doubts as to the credibility of the applicant’s claims of fearing harm from gang members following the incidents prior to his departure from El Salvador; the employment history in the student visa application lodged 11 March 2016 (page 11) and the evidence of employment provided with the application for a visitor visa [on 4 November 2015] being different to the employment history in the protection visa application, which raised concerns as to the applicant’s credibility; and his student application on 11 March 2016 and an email from the applicant’s migration agent on 12 July 2016, which reads (in part) ‘…our client…has requested to withdraw the student visa application as he has decided to return back home due to personal reasons…advise when the application has been withdrawn, so that he can book tickets for return’, which also raised concerns as to his credibility.
The brother-in-law provided a statutory declaration dated 12 January 2022, addressing the delay in making the protection visa application, how he had completed the protection visa application for the applicant and that it was incorrect to say that the applicant wanted to go back to El Salvador for personal reasons, it was just that the student visa application was withdrawn.
On 9 March 2022, the applicant’s representative also provided a letter responding to the delegate’s concerns.
Evidence before the Tribunal
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The review application
On 9 May 2022, the applicant lodged an application for review of the delegate’s decision with the AAT, which included the delegate’s decision.
Pre-hearing submissions and evidence
Before the hearing, the applicant provided:
(a)death certificates of [Mr A] and [Mr B], both aged 21 [in] September 2016 from a firearm, [District 4], San Salvador; and
(b)statutory declaration of [Ms C] of 18 September 2024 and a copy of her Australian passport;
(c)the applicant’s statutory declaration made 18 September 2024 (2024 Declaration), which made some corrections to the Statement of Protection Claims about when and how his sister knew of his experiences with the gangs; that he did not wish to return home and that was not the reason why he withdrew his student visa application and that the last encounter with the gangs was in September 2015, being 6-8 months before he travelled to Australia. The applicant also said:
I also think that they didn’t kill me because I was always humble and submissive. Whatever they asked me to do, such as take off my clothes, I would do it without arguing. I bowed to them to ask them not to kill me. Maybe this is also a reason why they didn’t kill me;
(d)a psychologist’s report of 24 June 2023;
(e)Consolidated Client View of the Department of Home Affairs regarding the applicant, which stated the applicant’s student visa application had been withdrawn; and a Department letter of 16 September 2016 acknowledging the withdrawal; and
(f)country information and a submission of 20 September 2024 (Sept 2024 Submission).
On 18 September 2024 and 1 November 2024, the applicant sent hearing notice responses for to the Tribunal.
The hearing: supporting documents and oral evidence
The applicant gave the following oral evidence.
The applicant still has various relatives living in El Salvador, being:
(a)his eldest sister, who has lived in the same place for about fifty years in Colonia [Suburb 1], San Salvador;
(b)his next eldest sister, who has lived for roughly thirty years in [District 5], which is on the way to [District 6];
(c)his next sister, who has lived in the same place for 20 to 25 years in Colonia [Suburb 2], San Salvador;
(d)his younger sister, who used to live with him in [District 3], but he does not know where she is living now;
(e)his niece, daughter of the third eldest sister, who lives in the same suburb as her mother. This is the niece the applicant went to live with after the fourth interaction with the gangsters, and he moved in with her instead of other family because she lived only three kilometres away.
The applicant said he lived in [District 3] from 2013 to 2015, which was 15 to 20 kilometres from San Salvador. He had a plot of land, his ranch, which he abandoned after the fourth interaction. No one in the family has seen the ranch since.
The applicant described his employment with [Employer] as one where someone else made the sales and the applicant made the deliveries to stores. He travelled to various suburbs in San Salvador and surrounding areas like [District 3]. There were two or three people who delivered to those areas. He travelled by bus and used a case to deliver the [products]. The case was [description].
When the Tribunal took the applicant through his description of the first three interactions with gang members as he described them to the delegate, the applicant said he had not been harmed in the first three encounters in 2013 in Colonia [Suburb 3], San Salvador; in September 2013 by two 13-year-old boys in Colonia [Suburb 4], San Salvador; and in 2014 in Colonia [Suburb 5]. The gang members let him go in the first instance; they ran away when they saw the police in the second instance; and in the third one, although they had put guns to his head, one of the gang members said not to kill him because he was not a policeman.
The applicant said the gang members were confused and accused him of being an informant for the police, surveying the area. They asked him what he was carrying in his case, and he told them about the [products] and said he was a citizen.
After these interactions with the gang members, the applicant kept on delivering for his employer. He told his boss that he would not deliver to those Colonia’s anymore and his boss accepted that. When asked what he told his boss when he decided to travel to Australia, the applicant said at that time he was going on a holiday, and he was going back to the job. When the employer’s letter was read out loud, the applicant said it was his intention to return to El Salvador at that time.
The applicant’s fear of returning to El Salvador is that the current President has not eradicated all of the gangs, and the gangs are like a plague. Young boys are still joining gangs. When the Tribunal said that trouble with gangs in 2013-2015 was an issue for the population in general in El Salvador, the applicant agreed. He said he was not murdered by the gang members because he did not argue with them. After a break, the applicant said that his experience in El Salvador had left him traumatised and he was fearful of returning. The applicant acknowledged he had family in El Salvador, but said they had limited resources and given their children are at home there is no space.
The brother-in-law spoke to the applicant’s lack of comprehension at times because of his level of education and trauma. The brother-in-law handed the Tribunal an article, translated, which suggested that the two members of the family who were killed in 2016 were killed by gangs, although the article stated that the cause of the double homicide was unknown.
Post-hearing submissions
On 7 November 2024, the Tribunal provided the applicant with the country information set out below in writing.
On 11 November 2024, the applicant provided submissions seeking to address the adverse impact the country information had on the review application, as well as addressing other concerns raised at the Tribunal hearing (Nov 2024 Submissions).
Country information
President Nayib Bukele was elected in June 2019 on a platform of dealing with the gangs.[4]
[4] See 2116871 (Refugee) [2024] ARTA 174 (21 October 2024) at [37].
The New York Times reported 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 and
Walking the streets of the capital, San Salvador, in the days before the election, we saw firsthand how families with children have returned to parks. People can now cross formerly impassable gang-controlled borders between neighborhoods. The city center, which for years was largely empty by sunset, is now lively late into the night.[5]
[5] >
Intentional homicide rates have fallen further to 2.4 per 100,000 in 2023 and that this compares to 103 in 2015 and 81.2 in 2016[6].
[6] >
As stated in 2101427 (Refugee) [2024] AATA 4071 (10 October 2024):
[68] Country information before the Tribunal indicates for decades gangs, largely MS13 and the 18th Street Gang (collectively ‘the Maras’), which emerged in El Salvador in the 1990s following the deportation of gang members from the United States,[7] have exerted territorial control over areas throughout El Salvador, committing homicides, abductions, physical violence, extortion, and displacement, with past administration’s responses to criminal violence oscillating between obscure negotiations with gangs and iron-fisted security policies.[8] El Salvador is reported to be known historically as one of the most violent peacetime countries in the world, with the murder rate in 2015 in El Salvador being 103 per 100,000 people, the highest murder rate worldwide, attributable to gangs operating extortion rackets across the country.[9] In both 2015 and 2016 El Salvador recorded more homicides than any other country in the world.[10]
[69] It is reported the majority of El Salvador has been impacted by gang-related extortion. Street gangs operated extortion rackets in historical centres and markets such as in San Salvador, taking regular small payments from vendors[11], with estimates suggesting that over 70% of businesses have been extorted in areas of El Salvador featuring gangs, with extortion described as the ‘economic engine’ behind gangs and violence[12].
[70] Following increased large-scale gang violence in El Salvador in early 2022, including the deaths of 92 people between 24 March and 27 March, at the request of President Nayib Bukele the Legislative Assembly adopted on 27 March 2022 a 30-day state of emergency in El Salvador, suspending a range of constitutional rights, including the rights to freedom of assembly, privacy in communications, and to be informed of the reason for arrest, as well as the requirement that anyone be taken before a judge within 72 hours[13]. The state of emergency has continued in El Salvador since 27 March 2022, with the country having spent over two years under the decree[14].
[71] The government increased the maximum sentence for being a gang leader to 45 years and for being a gang member to 30 years and the criminal procedural code was amended to mandate pretrial detention for those charged with gang membership and extortion[15]. According to available data, 73,000 people were detained between 27 March 2022 and early November 2023[16], with other reports suggesting over 1% of the country’s 6.3 million population have been arrested[17]. There are reports of mass detentions, arbitrary detention, and of crude profiling of the physical appearance or social background of those detained[18], including with charges being made on the basis of tattoos and youth[19].
[72] The state of emergency has reportedly kept rates of crimes, including homicides and extortion, at historically low levels[20]. The country’s official homicide rate dropped to 2.4 per 100,000 in 2023, although there are reports of potential data manipulation and a lack of transparency making it hard to assess the true extent of the reduction[21]. The United States Department of State report that under the state of exception, reports of gang violence decreased significantly, allowing citizens their right to life, liberty, and security of person, and to engage in daily activities and commerce without the constant threat of violence and extortion[22]. They report the government have reported to maintain a database of profiled gang members and have carried out arrests based on that database[23].
[73] Country information indicates soldiers have infiltrated towns in El Salvador, establishing security fences, and dismantling gangs, with the President having indicated the siege would not be lifted until ‘all the criminals’ were apprehended[24]. There are reports of 8,000 soldiers and police conducting raids in crackdowns on gangs since the state of emergency was declared[25].
[74] There are reports the degree of gang territorial control in El Salvador has dropped sharply after the government implemented the state of emergency in March 2022, and that conversely, certain population groups, namely young men, limit their movements due to fear of arbitrary arrest or police harassment[26]. Since the imposition of the state of emergency, it is reported hundreds of gang members have fled to Mexico, the USA, Nicaragua, Honduras, and other surrounding countries, and that gang members who historically had power in El Salvador are either imprisoned or are in hiding[27]. Reports have commented on investigative news outlets visiting fourteen communities across El Salvador that had spent years under the control of criminal groups, finding the gangs had all but vanished[28].
[75] There have been calls on El Salvador to end the long-running state of emergency and reinstate suspended constitutional rights after achieving significant security gains due to its anti-gang crackdown.[29] Numerous reports have commented that the state of emergency has undermined the presumption of innocence and the right to defence and that it has led to arbitrary detention, prison overcrowding, and deaths in custody.[30] Despite this criticism, the President has been widely supported within the El Salvadorian community, having received more than 84 per cent of the vote in his re-election in February 2024.[31]
CONSIDERATION OF CLAIMS AND EVIDENCE
[7] Jonathan Blitzer, ‘The Legacy of Deportations in El Salvador’, Pulitzer Center, 17 January 2017.
[8] Human Rights Watch, World Report 2024: El Salvador; ‘El Salvador gangs: Mass arrets bring calm but at what price?’, BBC, 19 May 2023.
[9] Zach Y. Brown, Eduardo Montero, Carlos Schmidt-Padilla, Maria Micaela Sviatschi, ‘Market Structure and Extortion: Evidence from 50,000 Extortion Payments’, December 2022, 5-6, accessed at
[10] Jeremy Giles, ‘The Problem with El Salvador’s Crime Numbers’, Foreign Policy, 8 August 2024.
[11] Alex Papadovassilakis, Steven Dudley, ‘The “Protection Racket”, Gangs and Violence in San Salvador’, InSight Crime, 1 October 2020.
[12] Zach Y. Brown, Eduardo Montero, Carlos Schmidt-Padilla, Maria Micaela Sviatschi, ‘Market Structure and Extortion: Evidence from 50,000 Extortion Payments’, December 2022, 5-6, accessed at ‘We Can Arrest Anyone We Want: Widespread Human Rights Violations Under El Salvador’s “State of Emergency”’, Human Rights Watch, 7 December 2022.
[14] ‘El Salvador extends anti-gang emergency decree for 24th time. It’s now been in effect for two years’, AP News, 10 March 2024.
[15] Freedom House, Freedom in the World 2024: El Salvador.
[16] ‘IACHR Issues Report on State of Emergency and Human Rights in El Salvador’, Inter-American Commission on Human Rights, 4 September 2024.
[17] Alex Papadovassilakis, ‘The Road to El Salvador’s State of Emergency’, Insight Crime, 6 December 2023.
[18] ‘El Salvador state of emergency’, United Nations Human Rights, 28 March 2023.
[19] United States Department of State, 2023 Country Reports on Human Rights Practices: El Salvador; ‘Children victimised in El Salvador’s anti-gang crackdown, rights group alleges’, Los Angeles Times, 16 July 2024.
[20] Freedom House, Freedom in the World 2024: El Salvador.
[21] ‘Children victimised in El Salvador’s anti-gang crackdown, rights group alleges’, Los Angeles Times, 16 July 2024.
[22] United States Department of State, 2023 Country Reports on Human Rights Practices: El Salvador.
[23] United States Department of State, 2023 Country Reports on Human Rights Practices: El Salvador.
[24] ‘El Salvador: Entire region ‘under siege’ to hem in gangs’, BBC, 2 August 2023.
[25] ‘El Salvador sends 8,000 troops and police officers to comb rural province in massive anti-gang raid’, Ap News, 2 August 2023.
[26] Freedom House, Freedom in the World 2024: El Salvador.
[27] ‘Gang members on the run: MS-13’s exodus from El Salvador’, Contra Corriente, 10 June 2024.
[28] ‘Bukele Has Defeated El Salvador’s Gangs – for Now. How? And What Does it Mean for the Region?’, Lawfare, 27 March 2023.
[29] ‘Human rights commission calls on El Salvador to end state of emergency’, Reuters, 5 September 2024.
[30] ‘El Salvador: The institutionalisation of human rights violations after two years of emergency rule’, Amnesty International, 27 March 2024.
[31] Jeremy Giles, ‘The Problem with El Salvador’s Crime Numbers’, Foreign Policy, 8 August 2024.
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.
Applicant’s responsibility
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
It is well established that the Tribunal is not required to accept uncritically any, and all allegations made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at 348).
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.
REASONS AND FINDINGS
The issue in this case is whether the applicant is either a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant travelled to Australia on a El Salvadorian passport and claims to be an El Salvadorian national. The delegate had no concerns about their claimed identity or nationality, and there is nothing before the Tribunal which raises a concern. The Tribunal finds the applicant is a national of El Salvador, which is also their receiving country for the purposes of refugee and complementary protection assessments.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal finds that the applicant arrived in Australia [in] February 2016, based on the movement record, and made the protection visa application in October 2016. The Tribunal accepts that the applicant has a basic education; relied on his sister to travel to Australia on a tourist visa and that the sister had initially suggested he apply for a student visa until the applicant, his sister and his brother-in-law learned of the existence of protection visas from the Catholic Migrant Centre, based on the Statement of Protection Claims, the sister’s statutory declaration of 18 September 2024 and the brother-in-law’s statutory declaration of 12 January 2022. The Tribunal does not place any weight on the eight-month delay in making the protection visa application, because it accepts the applicant, the sister and the brother-in-law did not know about it earlier and applied when they could and were able to obtain advice.
In the Statement of Protection Claims, the applicant claimed he was a street vendor who was threatened by the anti-government groups MS13 and MS18, and he feared harm at their hands on account of his imputed political support of the government. The Tribunal accepts that the applicant was a vendor in El Salvador selling [products], in that someone else made the sales and the applicant made the deliveries to stores on the street, based on the Statement of Protection Claims and the applicant’s evidence at the hearing. The applicant claimed in the Statement of Protection Claims that he was accused of being a government agent; they thought he would report them and their locations; and believes he was threatened so many times because he had been stereotyped on his appearance as an undercover police man, given he is [physical description] than most El Salvadorians. He believes that if he returns to El Salvador, he will be killed by MS18 and they have his national ID card and his old address and if they learn that he ran away from El Salvador, they will believe he was guilty of being an informant.
The Tribunal accepts that in the first half of 2023, the applicant was diagnosed as having met the DSM-V criteria for post-traumatic stress disorder, based on the psychological report provided by the applicant. The Tribunal was requested to take this into consideration in terms of any credibility assessment and the applicant’s ability to recollect his experiences, in his hearing response forms.
The Tribunal found the applicant overall to be a credible witness. Based on his interview with the delegate and his evidence to the Tribunal, the Tribunal accepts that the applicant experienced four interactions with members of the M13 and M18 gangs between 2013 and 2015, whilst he was working with his [distinctive case] delivering goods to the suburbs and surrounds of San Salvador and returning home to [District 3], as follows:
(a)the first two interactions were in 2013 with members of M13 and the applicant was unharmed:
(i)with the gang letting him go from the first encounter. Based on the Statement of Protection Claims, the Tribunal accepts that the first time he was threatened by people he believed to be MS13 because of their tattoos, he was in Colonia [Suburb 3], [District 6]. They searched him but only found the goods that he was selling. They checked his wallet and saw his taxation ID card, which they said only the police carry. They accused him of being an informant and warned him not to come back to the area; and
(ii)with the gang members running away from the second encounter when they saw police. Based on the Statement of Protection Claims, the Tribunal accepts that the second time he was threatened was in Colonia [Suburb 4] in [District 7] by M13 members, being accused of working with the police because the police normally wear the same type of belt he was wearing and that only police carry their taxation ID card. They pulled out their weapons, however some policemen happened to be walking past so they fled, as did the applicant;
(b)the third interaction was in 2014 with M18 members. Based on the Statement of Protection Claims, the Tribunal accepts that the third time he was threatened was by three members of MS18 in Colonia [Suburb 5] in [District 7]. They held him and took his shirt and shoes, and two of them accused him of being a police officer, taking him to the edge of a small cliff, putting a gun to his head and insisting that they kill him. The third M18 member said the applicant was just a street vendor and to let him go, and they eventually let him take his t-shirt and shoes and allowed him to go; and
(c)the fourth interaction was with M18 members. Based on the Statement of Protection Claims, the Tribunal accepts that the fourth time he was threatened was in [District 3], when the applicant was returning home from a day’s work in [District 4], [District 7] and surrounding areas and based on the 2024 Declaration the Tribunal also accepts that this last encounter occurred in September 2015. The Tribunal accepts that the applicant believes he was intercepted two blocks from his house by armed M18 members because of their tattoos. They restrained his arms; pointed guns at his head; took the rest of his gear; one of them pointed a gun at his stomach and took his national ID card with his address; on orders two men forced the applicant to kneel; they kicked him; punched his head making him bleed and leaving a scar close to his left eyebrow; interrogated him, saying one of their members was killed in [District 4] that day, and they suspected him of passing information to the government; threw him to the ground with their guns pointed; the one in charge said they knew how to find him because of his national ID card, they could get information about him; accused him of being a government agent; and said they will come after him and his family and kill everyone and destroy his shanty house, based on the Statement of Protection Claims.
The Tribunal accepts that the gangs did not kill the applicant because he was always humble and submissive, doing whatever they asked him to do, such as take off his clothes, without arguing and he bowed to them to ask them not to kill him, as well as praying, based on the 2024 Declaration and the applicant’s evidence at the hearing.
The Tribunal accepts that the applicant’s sister travelled to El Salvador on 14 September 2015, based on her statutory declaration of 18 September 2024. The Tribunal finds that the applicant’s passport and second national ID card were issued [in] 2015, being some ten days after his sister arrived, based on the copy of the passport provided and the delegate’s decision.
The Tribunal accepts that on 29 September 2016, two of the applicant’s relatives were shot dead [District 4], San Salvador, being the son of one of the mother’s sister’s daughters and the son of another of the mother’s sister’s daughters, based on the Statement of Protection Claims and the two death certificates provided. The Tribunal accepts that they were killed by gang members, based on the applicant’s belief as stated in the Statement of Protection Claims and the news article provided and referred to by the brother-in-law at the hearing.
Based on the Statement of Protection Claims, the Tribunal accepts that the applicant did not report his own interactions with MS13 or MS18 to the police in case a gang member saw him and really believed he was a police informant and because he thought they would kill him if he did. The Tribunal also accepts, based on this document that after the fourth incident, whilst he managed to walk to his home, he decided to abandon his house; left everything behind for good and hid at his niece’s house, which was in San Salvador and three kilometres away from where he had lived, based on what the applicant said at the hearing.
In the Statement of Protection Claims, the applicant said he was unable to rely on the El Salvadorian government for protection because the government had been unable to control the MS13 and MS18 groups so far.
The Tribunal accepts that after these four interactions with gang members, the applicant kept on delivering for his employer after his boss accepted that he would not be delivering to those Colonia’s anymore, based on what the applicant said at the hearing. The Tribunal finds that the last time the applicant was threatened was in September 2015 and that over nine years later there are no current threats to harm the applicant for any reason, based on the evidence before it. The Tribunal also finds that when he decided to travel to Australia in 2015, the applicant told his employer he was going on a holiday and that it was the applicant’s intention to return to El Salvador at that time, based on the undated letter from the employer and the applicant’s evidence at the hearing.
The Tribunal accepts that the applicant did not wish to return to El Salvador after arriving in Australia and did not tell anyone that he wished to return for personal reasons, based on the 2024 Declaration and the statutory declaration of the brother-in-law. The Tribunal places no weight on the fact that the applicant arrived on a tourist visa, applied for a student visa and withdrew the student visa application, because it accepts based on the statutory declaration of the brother-in-law that the student visa application was deemed to have no prospects of success.
In the Sept 2024 Submissions and Nov 2024 Submissions, the applicant submitted that the applicant’s physical stature leads to him having an imputed political opinion or even being in an [imputed] particular social group, police officers, and also highlighted that certain returnees from abroad have a risk profile that may elevate the applicant’s risk of being in need of protection. As to the latter point, the Tribunal accepts that the applicant does not have criminal record and has not been part of any criminal activities, based on the El Salvadorian police clearance certificate and Ministry of Justice and Public Safety National Board for Penal Centres document provided, together with the applicant’s statutory declaration of 5 October 2016, and as such the Tribunal finds that the applicant is not a returnee with a criminal past and does not face a real chance of harm as such a returnee. The applicant submitted the issue was that if he was stopped by a gang and his identity verified, he would appear as a returnee from abroad (Sept 2024 Submissions at [17] and Nov 2024 Submissions at [17]). Further, the applicant submitted that the MS18 gang has the applicant’s former national ID card and having already been identified as a possible informer or undercover cop, his having disappeared for years and then suddenly reappearing would also cause them to take further interest in him: Sept 2024 Submissions at [20].
The applicant referred to country information that street vendors and certain returnees from abroad had a risk profile that may elevate an individual’s risk of being in need of international refugee protection, as referred to in the delegate’s decision, and also submitted that the applicant was considered a threat to the gangs by way of his physical stature, leading gangs to believe he is an undercover police officer (Sept 2024 Submissions at [17] and [18]).
Based on the country information above, the Tribunal accepts that:
(a)for decades gangs, largely MS13 and the 18th Street Gang (collectively ‘the Maras’), which emerged in El Salvador in the 1990s following the deportation of gang members from the United States, had exerted territorial control over areas throughout El Salvador, committing homicides, abductions, physical violence, extortion, and displacement;
(b)the murder rate in 2015 in El Salvador was 103 per 100,000 people, the highest murder rate worldwide, attributable to gangs operating extortion rackets across the country. In both 2015 and 2016 El Salvador recorded more homicides than any other country in the world;
(c)President Nayib Bukele was elected in June 2019 on a platform of dealing with the gangs and the crackdown he led on organized crime has all but dismantled the infamous street gangs that terrorized the population for decades;
(d)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;
(e)at the request of President Bukele, the Legislative Assembly adopted on 27 March 2022 a state of emergency in El Salvador, suspending a range of constitutional rights, including the rights to freedom of assembly, privacy in communications, and to be informed of the reason for arrest, as well as the requirement that anyone be taken before a judge within 72 hours;
(f)the government increased the maximum sentence for being a gang leader to 45 years and for being a gang member to 30 years and the criminal procedural code was amended to mandate pretrial detention for those charged with gang membership and extortion. According to available data, 73,000 people were detained between 27 March 2022 and early November 2023, with other reports suggesting over 1% of the country’s 6.3 million population have been arrested. There are reports of mass detentions, arbitrary detention, and of crude profiling of the physical appearance or social background of those detained, including with charges being made on the basis of tattoos and youth;
(g)the state of emergency has reportedly kept rates of crimes, including homicides and extortion, at historically low levels. The country’s official homicide rate dropped to 2.4 per 100,000 in 2023, although there are reports of potential data manipulation and a lack of transparency making it hard to assess the true extent of the reduction;
(h)under the state of exception, reports of gang violence decreased significantly, allowing citizens their right to life, liberty, and security of person, and to engage in daily activities and commerce without the constant threat of violence and extortion;
(i)the degree of gang territorial control in El Salvador has dropped sharply after the government implemented the state of emergency in March 2022, and that conversely, certain population groups, namely young men, limit their movements due to fear of arbitrary arrest or police harassment. Since the imposition of the state of emergency, it is reported hundreds of gang members have fled to Mexico, the USA, Nicaragua, Honduras, and other surrounding countries, and that gang members who historically had power in El Salvador are either imprisoned or are in hiding;
(j)investigative news outlets visiting fourteen communities across El Salvador that had spent years under the control of criminal groups, found that the gangs had all but vanished; and
(k)the President has been widely supported within the El Salvadorian community, having received more than 84 per cent of the vote in his re-election in February 2024. Prior to the election, people could now cross formerly impassable gang-controlled borders in the capital San Salvador between neighbourhoods.
The applicant submitted that the 2024 election of President Donald Trump in the United States of America may have a disastrous impact on crime in El Salvador in the near future, because of his promise to deport millions of undocumented immigrants, although it was unclear how many of the estimated undocumented immigrants were from El Salvador or were convicted criminals from El Salvador (Nov 2024 Submissions). The Tribunal accepts that in 2019 El Salvadorians made up 37% of all Central American migrants at the southern U.S. border, as submitted in the Nov 2204 Submissions, but does not accept that the result of expanded deportations under the Trump regime could lead to increases in gang violence in El Salvador due to significant increases in deportation of criminals, because the Tribunal is not required to accept uncritically any allegations made by an applicant and on the evidence before the Tribunal it does not accept that any El Salvadorians deported from the United States as criminals will not be incarcerated on their return to El Salvador.
From an article in support of the applicant’s submissions,[32] the Tribunal accepts:
By 2022, it is estimated that the [Mara Salvatrucha (MS-13) and Barrio 18 gangs] would have a total of 70,000 members. Since the beginning of the regime of exception in March, until July 25, 2023, the authorities arrested more than 71,776 people linked to the MS-13 and Barrio 18 gangs.
[32] accessed 23/04/2025.
The applicant submitted that in a report published on 9 May 2023, the former inspector general of El Salvador’s police force, Zaira Navas, asserted that the arrests have only reached 30 percent of gang members and the rest, she claimed, are mostly civilians (Nov 2024 Submission). From the same report, the Tribunal accepts:
Across the country, communities who lived under gang control for decades report significant changes on the ground. For the first time in years, business owners and residents are no longer forced to pay monthly extortion fees, and many feel safer in public spaces.
When the Tribunal followed the link to a digital newspaper[33] in the report published on 9 May 2023 in relation to Ms Navas’ comments, the Tribunal finds that Ms Navas questions whether the gangs have been eradicated or mutated and Ms Reyna, deputy director of human rights at the Passionist Social Service, thinks the gangs have been dismantled and weakened. This link also refers to the newspaper visiting 14 communities who for years lived under the gang’s ironclad control in the west, centre, and east of the country and other investigations, with the conclusion that the gangs do not exist in this moment as El Salvador knew them for decades. This is in line with the accept country information above that investigative news outlets visiting fourteen communities across El Salvador that had spent years under the control of criminal groups, found that the gangs had all but vanished. On this basis, the Tribunal rejects the assertion in the Nov 2024 Submission by the applicant that, based on Ms Navas’ comments, a substantial number of gang members continue to be at large and living freely in the community. On the contrary, the Tribunal prefers the accepted country information above that gang members who historically had power in El Salvador are either imprisoned or are in hiding.
[33] Bukele Government Dismantled Gang Presence in El Salvador, accessed 23/04/2025.
The applicant submitted that gang violence persists, with evidence of operations by the El Salvadorian government:
(a)in March 2024, to blockade and enter the four municipalities in southern Chalatenango, which is in the north of El Salvador, aiming to dismantle the 18 Sureños clique of the 18th Street gang, which the Tribunal accepts was undertaken; and
(b)in October 2024 to arrest members of the criminal gangs of the Mara Salvatrucha (MS-13) and Mara Barrio 18 in the district of San Marcos, a municipality in the Metropolitan Area of San Salvador, or Great San Salvador, which the Tribunal again accepts was undertaken (Nov 2204 Submissions).
The applicant submitted that despite the positive homicide statistics mentioned during the hearing, there are several sources which suggest that El Salvador’s reporting is inaccurate or potentially manipulated (Nov 2024 Submission). This accords with the accepted country information above that there are reports of potential data manipulation and a lack of transparency making it hard to assess the true extent of the reduction in the homicide rate in El Salvador. The applicant submitted that this calls into question the reliability of El Salvador’s recent homicide statistics in determining whether it is safe for the Applicant to return to El Salvador (Nov 2024 Submission).
However, it is not necessary for the Tribunal to rely on the actual homicide rate in determining whether there is a real chance of harm to the applicant in the reasonably foreseeable future if they return to El Salvador due to gangs. The relevant country information is that the crackdown the President has led on organized crime has all but dismantled the infamous street gangs that terrorized the population for decades, including - as found by the Tribunal - the applicant in 2013 to 2015 and his family members in 2016; the evidence the applicant provided that the crackdown on gangs continues; under the state of exception, reports of gang violence decreased significantly, allowing citizens their right to life, liberty, and security of person, and to engage in daily activities and commerce without the constant threat of violence and extortion; people could now cross formerly impassable gang-controlled borders in the capital San Salvador between neighbourhoods; the degree of gang territorial control in El Salvador has dropped sharply and the gangs have all but vanished with gang members who historically had power in El Salvador being either imprisoned or in hiding.
Based on the country information accepted above, the Tribunal rejects the applicant’s submissions that street vendors and certain returnees from abroad have a risk profile that may elevate an individual’s risk of being in need of international refugee protection, as referred to in a preceding paragraph of these reasons, because the situation in El Salvador has changed considerably since the date of the country information relied on by the applicant to make this submission (being 2016 and 2021, as noted in the Sept 2024 Submissions) given the accepted country information above and because of the finding that there are no current threats against the applicant.
The Tribunal also rejects the submissions that if the applicant was stopped by a gang, they would verify his identity, as referred to in a preceding paragraph in these reasons, such that either they would recall they had threatened him in 2015, on the basis that this is speculative in light of the accepted country information above, in particular that gang members who historically had power in El Salvador are either imprisoned or in hiding, or this would make him known to them as a returnee, which would put him in danger with the gangs, again on the basis that this is speculative in light of the country information above. Similarly, the Tribunal also rejects the applicant’s submission that given the MS18 gang had the applicant’s former national ID card and previously identified him as a possible informer or undercover cop, his having disappeared for years and then suddenly reappearing would also cause them to take further interest in him, again as referred to in a preceding paragraph in these reasons, because of its speculative nature; the over nine years which have passed since a MS18 gang member took the applicant’s national ID card; the country information accepted above, in particular that gang members who historically had power in El Salvador are either imprisoned or in hiding; and the finding that there are no current threats against the applicant. The Tribunal rejects any suggestion that MS18 still has the applicant’s former national ID card after over nine years in light of the country information accepted above as speculative.
The Tribunal acknowledges that the applicant’s fear of returning to El Salvador is that the current President has not eradicated all of the gangs, and the gangs are like a plague, with young boys still joining, based on the applicant’s evidence at the hearing.
The Tribunal has considered all the evidence provided by the applicant in support of the application. It finds that the gang situation in El Salvador has changed considerably since the applicant left the country in February 2016 and with the passing of over nine years since the applicant’s last encounter with a gang and threats. The Tribunal finds that if the applicant returns to El Salvador it will be to the capital, San Salvador, as that is where two of his sisters and his niece, with whom he lived previously, live and it is 15 to 20 kilometres from [District 3] where the applicant used (until 2015) to have a ranch, based on the applicant’s evidence at the hearing.
The applicant also provided an update current as at 11 November 2024, in which smarttraveller.gov.au continued to advise a high degree of caution due to the threat of violent crime for travellers to El Salvador, because whilst the state of exception remains in effect there, which was likely to continue for the foreseeable future, and it had resulted in a reduction in the rate of violent and gang-related crime, there was still a risk of violent crime and a person may still be a victim of gang-related crime in El Salvador. The Tribunal acknowledges this general risk, but again prefers the country information accepted above that the people in El Salvador engage in daily activities and commerce without the constant threat of violence and extortion and now cross formerly impassable gang-controlled borders in the capital San Salvador between neighbourhoods and that the degree of gang territorial control in El Salvador has dropped sharply.
When the Tribunal raised at the hearing that trouble with gangs in 2013-2015 was an issue for the population in general in El Salvador, the applicant agreed. After the hearing, the applicant submitted that his stature and appearance raise his risk of harm above that of the general population, because being [physical description] than other El Salvadorians had led the gangs to believe that he was an undercover policeman (Nov 2024 Submissions).
The Tribunal accepts that the applicant is [physical description] but rejects that the applicant would be considered a threat to the gangs by way of his physical stature, such that the gangs would believe he is and would harm him as an undercover police officer, if he returns to El Salvador and comes across gang members in the reasonably foreseeable future. This is because the Tribunal finds that in the intervening over nine years since the gangs perceived the applicant that way, the gangs are no longer in control of the streets such that the height and build of the applicant would suggest that he is an undercover police office when he is on the streets and visiting different Colonias, based on the country information accepted above.
The Tribunal finds that there is no real risk of harm to the applicant in the reasonably foreseeable future from gangs if he returns to San Salvador, El Salvador because of an imputed political opinion or membership of a particular social group, in that gangs may perceive him as an undercover policeman, or because he is a returnee to the country, because of the country information that the crackdown the President has led on organized crime has all but dismantled the infamous street gangs that terrorized the population for decades; the evidence the applicant provided that the crackdown on gangs continues in Greater San Salvador and elsewhere; under the state of exception, reports of gang violence decreased significantly, allowing citizens their right to life, liberty, and security of person, and to engage in daily activities and commerce without the constant threat of violence and extortion; people could now cross formerly impassable gang-controlled borders in the capital San Salvador between neighbourhoods; the degree of gang territorial control in El Salvador has dropped sharply and the gangs have all but vanished with gang members who historically had power in El Salvador being either imprisoned or in hiding in the intervening over nine years since the applicant was in El Salvador; and further because of the finding that there are no current threats and the rejection of the submissions above that:
(a)the applicant would be considered a threat to the gangs by way of his physical stature, such that the gangs would believe he is and would harm him as an undercover police officer, if he returns to El Salvador and comes across gang members in the reasonably foreseeable future;
(b)that street vendors and certain returnees from abroad have a risk profile that may elevate an individual’s risk of being in need of international refugee protection;
(c)if the applicant was stopped by a gang, they would verify his identity, as referred to in a preceding paragraph in these reasons, such that either they would recall they had threatened him in 2015 or this would make him known to them as a returnee, which would put him in danger with the gangs; and
(d)given the MS18 gang had the applicant’s former national ID card and previously identified him as a possible informer or undercover cop, his having disappeared for years and then suddenly reappearing would also cause them to take further interest in him.
The Tribunal also finds that the risk of violent crime in El Salvador in the reasonably foreseeable future would not be systematic and discriminatory conduct as required by s 5J(4)(c) of the Act, because the risk of violent crime referred to on the Smart Traveller website applies to everyone and the finding that the gangs are no longer in control of the streets such that the height and build of the applicant would suggest that he is an undercover police office when he is on the streets and visiting different Colonias such that they would systematically and discriminatorily single out the applicant for harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The Tribunal finds that there are not substantial grounds for believing that there is a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to El Salvador. This is because the Tribunal found that the applicant does not face a real chance of serious harm, and so the Tribunal also finds the applicant does not face a real risk of significant harm (as per MIAC v SZQRB (2013) 210 FCR 505).
The reasoning of the Federal Court of Australia in SZSPT v MIBP [2014] FAC 1245 suggests that the ‘faced personally’ element of s 36(2B)(c) of the Act requires the individual to face a risk of differential treatment, or because of characteristics that distinguish them from the general populace. Further, where a real risk is faced by an individual applicant but is the same as the risk faced by the general population, s 36(2B)(c) applies: SZSPT v MIBP and BBK15 v MIBP (2016) 241 FCR 150.
The Tribunal also finds that the risk of violent crime referred to in the Smart Traveller website is a risk faced by the population of El Salvador generally and repeats the finding that the gangs are no longer in control of the streets such that the height and build of the applicant would suggest that he is an undercover police office when he is on the streets and visiting different Colonias. The Tribunal rejects the submission in the Nov 2024 Submission that it is the applicant’s stature and appearance that raises his risk of harm from the gangs above that of the general population, because of the finding that the gangs are no longer in control of the streets such that the height and build of the applicant would suggest that he is an undercover police office when he is on the streets and visiting different Colonias.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Same family unit member?
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing: 5 November 2024
Representative for the Applicant: Mr Colin Soo (MARN: 1386729)
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.
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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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