1409042 (Refugee)

1409042 (Refugee) [2015] AATA 3528 (23 October 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1409042
COUNTRY OF REFERENCE:                  Mongolia
MEMBER:Linda Symons
DATE:23 October 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 23 October 2015 at 5:00pm
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Mongolia, arrived in Australia [in] July 2013 as the holder of a Visitor visa. [In] August 2013, he was granted a Bridging visa in association with his application for a Protection visa.
The applicant applied to the Department of Immigration and Border Protection (the Department) for the Protection visa [in] August 2013 and the delegate refused to grant the visa [in] April 2014. On 22 May 2014, he applied to the Tribunal for review of that decision.
The applicant appeared before the Tribunal, differently constituted, on 8 April 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages. During the hearing, the applicant sought and obtained an adjournment of the hearing to obtain legal advice and instruct a new migration agent. Unfortunately, the Member constituting the Tribunal was unable to finish the review before he stopped being a Member.
The applicant appeared before the Tribunal as presently constituted on 7 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.
The issues that arise on review are whether Australia has protection obligations to the applicant under the Refugees Convention or under the complementary protection criterion.
RELEVANT LAW
The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Complementary protection criterion
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 a protection 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 the applicant 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’).
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The applicant’s claims in his visa application are summarised as follows:
·He came to Australia to seek protection from the persecution he suffered in Mongolia for reason of his homosexuality.
·At school he was shy, mainly concentrated on his studies, did not spend much time playing with other boys and for these reasons he was called names and abused by his peers.
·He did not like the company of boys but was too shy to approach girls.
·At the age of [age] years he had some feelings when watching boys in the locker room. He realised that was what homosexuals felt. This realisation scared him because he knew that if he was a homosexual he would not have a normal life and would have to hide his sexual orientation from everyone.
·In September [year], he entered a [College]. He was aware that there are other homosexuals around him but knew that no one would disclose their sexual orientation for fear of being outcast.
·He started dreaming of meeting a partner. His first sexual experience was with a female [in] March 2003. On that date he attended a party at a student’s house with 20 other students. They had many drinks and he ended up in bed with a girl named [Ms A]. They exchanged telephone numbers and he contacted her a couple of days later. They started to date and spent nights together when they had the opportunity.
·However, he still had dreams about having sex with men. He attended a party at a student’s summer house in mid-2004. He was sorting through some CDs when he noticed a homosexual scene printed on a CD case. He realised that the person who owned the summer house was also interested in same-sex relationships. He had a conversation with this man who was named [Mr B]. He was one year older than him and attended the same College.
·[Mr B] invited him to his summer house the following day and they thereafter became partners. For the next couple of months he continued to meet [Ms A] but gradually ended their relationship much to her disappointment.
·[Mr B] had a previous partner and had got into trouble with the police because they were caught having sex in a car in the car park. His father bribed the police. His parents were aware that he was homosexual and accepted this. They purchased the summer house for him where he and his partners could meet. [Mr B] introduced him to his parents.
·For a couple of years no one disturbed them. However, his parents started to put pressure on him to get married as he was old enough to start a family. They were aware of his relationship with [Ms A] and were disappointed when it ended. He told his parents that he wanted to get a good position and have enough means to maintain a family and they agreed to wait.
·He and [Mr B] periodically had problems because of their relationship especially when they visited pubs. They sometimes kissed at pubs and received angry and abusive comments from pub goers. On a couple of occasions they were beaten and thrown out of pubs. On two occasions they were beaten and then taken to police stations. However, due to the intervention of [Mr B]’s father they escaped trouble. His father paid the police officers money so they never had to spend a night in a cell. At some point, [Mr B]’s father got fed up with his son’s problems and in October 2007 he sent him to [Country 1] to work there.
·He was distressed after [Mr B] went to [Country 1]. He continued to have contact with other homosexuals that [Mr B] and introduced him to. Soon after, he entered into a casual relationship with a man named [Mr C] whom he met at pubs. This relationship created numerous problems for him.
·[Mr C] had a bad criminal record and had been charged with drug possession. He had a bad relationship with the Police. On one occasion when he was at [Mr C]’s flat, it was raided by the police. They were taken to the police station and locked in a cell overnight. They were beaten by police officers and raped with a rubber stick.
·The police told him that they would not keep him in the cell any longer if he paid them some money. They knew him from his previous visits to the Police Station with [Mr B]. He told them that he had no money and his family was not like [Mr B]’s father. They said okay.
·A Police officer found his mother’s telephone number on his mobile telephone, contacted her and told her he may be charged. His mother later told him that they are fed up with her son and his gay partners and you know what to do if you want him back home today. She gave them some money and secured his release on that day.
·His mother was in shock. She cried for the rest of that day and all night and would not speak to him. On the following day she accused him of lying about why he did not want to get married and promised not to tell his father and siblings about his homosexuality if he found a girl and started a normal family life.
·The only girl he knew well was [Ms A] who he had dated years ago. He knew that she was still single and contacted her. They started to meet and she became pregnant. They got married and soon after their marriage they first [child] was born.
·[Ms A] heard some rumours about his previous homosexual relationship so he told her that it was over. However, he still had dreams of having a same-sex relationship. He tried to be a good husband and father but still visited pubs where he could meet gays and maintain contact with them. One day he ended up in bed with a man named [Mr D].
·[Ms A] became suspicious and asked him what was going on. He told her about his affair with [Mr D]. She was in tears and he was also upset. He knew that [Ms A] loved him very much and he promised that this would never happen again but he knew that he was lying to her and to himself.
·A couple of weeks later, [Mr D] contacted him and they again spent time together. He felt sorry when he returned home. [Ms A] felt that something was wrong with him but he pretended that he was sick.
·A few days later he went to the pub to meet [Mr D]. [Ms A]’s cousin was at the pub that evening, was drunk and saw him kissing [Mr D]. He approached him and knocked him to the floor. He then smashed [Mr D]’s face and beat him with his foot. [Ms A]’s cousin grabbed him, pushed him into his car and took him home. He told his wife what he saw and abused him verbally. [Ms A] cried. [Ms A]’s cousin demanded that he divorce his wife. He lost his normal state of mind and had no idea what to do. He promised not to go to pubs or to meet homosexuals.
·A couple of days later, [Mr D] contacted him and asked to meet him for a final time to say goodbye. He was scared but agreed. [Ms A]’s cousin was spying on him and caught them in a park. He attacked them with a wooden branch and dragged him home. There was a scene at home and he threatened him that he would find a way to put him in gaol. For him and the majority of Mongolians it is better to have a husband in gaol than a husband who is a homosexual. His threats were not unrealistic because he was known to the Police.
·He had no other option but to leave Mongolia to seek protection in another country
The applicant attended an interview with the Department [in] March 2014. During that interview he re-iterated and expanded on his written claims. There were inconsistencies between his written claims and his evidence at the interview [in] March 2014 which are discussed below.
The applicant has lodged with the Tribunal a copy of the Department’s Decision Record dated [in] April 2014. Prior to the commencement of the hearing on 7 October 2015, he provided the Tribunal with a Report titled ‘Realization of the Sexual Minorities’ Rights in Mongolia’ by N.Anaraa LGBT Centre NGO. He gave evidence that a friend of his in Mongolia translated that document into English. The Tribunal has considered this evidence and places limited weight on it.
At the commencement of the hearing on 7 October 2015, the Tribunal asked the applicant if he had used the time during the period of the adjournment to obtain some legal advice and organize new representation. He answered yes and stated that he will not be represented at the hearing.
Does Australia have protection obligations to the applicant under the Refugees Convention?
The Tribunal finds that the applicant is a citizen of Mongolia based on his passport which is before the Tribunal and will assess his claims on this basis. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than his country of nationality.
The applicant gave evidence to the Tribunal that his application for a Protection visa was prepared by his migration agent on his instructions. He stated that the contents of his visa application including his written statement of claims were true and correct.
The Tribunal discussed his claims with the applicant during the hearing. The applicant’s claims during the hearing were significantly different to the claims he made in his visa application and during his interview with the Department [in] March 2014. The Tribunal found his evidence to be contradictory, some aspects of his evidence to be vague and lacking in detail and other aspects of his evidence to be implausible and unconvincing. These issues raise concerns for the Tribunal in relation to his credibility and the veracity of his claims. The Tribunal is of the view that the applicant is not a credible witness for the following reasons:
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated [in] April 2014. There were a number of inconsistencies between the applicant’s written claims and his claims during his interview with the delegate [in] March 2014. In his visa application, he claimed that his mother found out that he is a homosexual, promised not to tell his father and family about this if he found a girl and had a normal family life. He claimed that this was why he got married. During his interview with the Department [in] March 2014, he initially claimed that he was forced to get married after [Ms A], his wife, told her parents that she was pregnant. However, when the delegate asked him whether he got married because of his sexuality or because [Ms A] was pregnant, he responded that it was because his mother knew about his sexuality and forced him to get married. These inconsistencies in the applicant’s evidence raise concerns in relation to his credibility and the veracity of his claims.
In his visa application, the applicant claimed that he went to a pub to meet a man named [Mr D]. He claimed that his wife’s cousin saw him kissing this man, came over, knocked him to the floor, smashed [Mr D]’s face, beat him with his foot, grabbed him, pushed him into his car and drove him home. During his interview with the Department [in] March 2014, he claimed that he was attacked by his wife’s cousin and three men. When the delegate pointed out to him that that was not consistent with his written claims, he responded that he did not know he had to put everything in his written claims. The Tribunal does not accept this explanation for his failure to mention the three other men. This inconsistency in the applicant’s evidence raises concerns in relation to his credibility and the veracity of his claims.
In his visa application, the applicant claimed that after his wife’s cousin saw him kissing [Mr D] at the pub and took him home he promised not to go to pubs or meet any homosexuals. He claimed that a couple of days later [Mr D] contacted him and asked him to meet him for the last time so they could say goodbye. He claimed that he was afraid but agreed to do so. He claimed that his wife’s cousin spied on him and discovered them together in the park. During his interview with the Department [in] March 2014, he stated that his wife’s cousin saw him kissing [Mr D] in December 2012 and he met [Mr D] to say a final goodbye to him [in] April 2013. When the delegate pointed out to him that the dates were not consistent with his written claims, he responded that he did not know he had to remember all the dates for his application.
The Tribunal accepts that with the passage of time it is difficult to remember exact dates. However, the Tribunal would expect the applicant to remember approximate dates when these two events occurred particularly because he claims that he was assaulted on each of these occasions and claims, in his visa application, that the first date was a day that changed his life dramatically. The Tribunal is of the view that the difference between “a couple of days” and four months is significant. This inconsistency in the applicant’s evidence raises concerns in relation to his credibility and the veracity of his claims.
There were a number of inconsistencies between the applicant’s claims to the Department and his claims during the hearing on 7 October 2015. In his visa application, he claimed that his first sexual experience was with a girl named [Ms A in] March 2003 who subsequently became his wife and the mother of his [children]. During the hearing on 7 October 2015, he claimed that his first sexual experience was with a woman whose name he could not remember. He stated that he had a sexual encounter with this woman on one occasion only. This inconsistency in the applicant’s evidence raises concerns in relation to his credibility and the veracity of his claims.
In his visa application, the applicant claimed that he commenced his first homosexual relationship in mid-2004 with a man named [Mr B]. He stated that [Mr B]’s parents knew that he was homosexual and that [Mr B] introduced him to his parents. He stated that his relationship with [Mr B] ended in October 2007 when [Mr B]’s father sent him to work in [Country 1]. He claimed that during their relationship, when they kissed in pubs, they received angry and abusive comments from pub goers and on a couple of occasions they were beaten and kicked out of the pubs. He also claimed that on a couple of occasions they were beaten, taken to the Police Station and [Mr B]’s father bribed Police officers to secure their release.
During the hearing on 7 October 2015, the applicant gave evidence that he was in a relationship with [Mr B] for about one year and one or two months. He subsequently stated that their relationship ended after two years. He stated that they met mostly at [Mr B]’s home and they kept their relationship a secret. He stated that no one knew about his relationship with [Mr B] including [Mr B]’s family. When asked if anyone else found out about their relationship, he answered no. These inconsistencies in the applicant’s evidence raise concerns in relation to his credibility and the veracity of his claims.
During his interview with the delegate [in] March 2014, the applicant claimed that he had no contact with [Mr B] after he went to [Country 1]. During the hearing on 7 October 2015, he claimed that after [Mr B] went to [Country 1] he contacted him by telephone once or twice. This inconsistency in the applicant’s evidence raises concerns in relation to his credibility and the veracity of his claims.
In his visa application, the applicant claimed that after [Mr B] went to [Country 1] he entered into a relationship with a man named [Mr C]. He stated that [Mr C] had a criminal record and a bad relationship with the Police. He stated that this relationship caused him a lot of problems including being arrested by the Police, detained overnight, being beaten and sexually assaulted by the Police. During the hearing on 7 October 2015, the applicant gave evidence that after [Mr B] went to [Country 1] he started a relationship with a man named [Mr D]. He stated that this relationship only lasted eight or nine months and he ended the relationship because he did not like [Mr D]’s personality. These inconsistencies in the applicant’s evidence raise concerns in relation to his credibility and the veracity of his claims.

In his visa application, the applicant claimed that when he was in a relationship with [Mr C] they were arrested and taken to a Police Station. He claimed that a Police officer contacted his mother and told her she knew what to do if she wanted her son back home. He stated that the Police officer told his mother they were sick of her gay son and his gay partners. He stated that his mother was in shock and cried the rest of the day and night. He stated that they spoke the following day and she promised not to tell his father and siblings that he is homosexual if he found a girl and started a normal life. During the hearing on 7 October 2015, the Tribunal asked the applicant whether any of his family members discovered that he is homosexual. He responded that they “started to kinda find out” before he came to Australia and that is why he came here. He stated that his mother knew. When asked how his mother knew, he responded that they lived in the same household and she observed that “it was not normal”. He stated that he took male partners to his home when his parents were home.
These inconsistencies in the applicant’s evidence raise concerns in relation to his credibility and the veracity of his claims. The Tribunal also finds it implausible that the applicant would have taken male partners to his home when his parents were home in light of his claims that he got married because his mother threatened to tell his father and siblings that he was homosexual if he did not do so.
In his visa application, the applicant claimed that after his relationship with [Mr C] ended he continued to visit pubs where he could meet gay men. He stated that he subsequently met a man named [Mr D] and had sex with him. He stated that he tried to forget about [Mr D] but could not. He stated that his wife got suspicious and asked him what was going on. He stated that he told his wife about his affair with [Mr D] and they both became upset. He stated that he promised his wife that it would never happen again. He stated that a couple of weeks later he met [Mr D] again and spent time with him. He stated that a few days after that he again went to a pub to meet [Mr D] and that was when he was seen by his wife’s cousin kissing [Mr D]. He stated that a couple of days after that he met [Mr D] for say goodbye to him and was again discovered by his wife’s cousin.
During the hearing on 7 October 2015, the applicant gave evidence that after his relationship with [Mr D] ended he commenced a relationship with a man named [Mr C]. He stated that he was in a relationship with [Mr C] for 6 or 7 years until he came to Australia. He stated that he never told his wife that he was homosexual. These inconsistencies in the applicant’s evidence raise concerns in relation to his credibility and the veracity of his claims.
The Tribunal raised with the applicant the issue that the claims he made before the Department were significantly different to the claims he made before the Tribunal and its concerns in relation to the credibility of his claims. He responded that his application for a Protection visa was prepared by his migration agent and he relied on his migration agent. He stated that he was not satisfied with the interpreter during his interview with the delegate. He stated that he listened to a recording of that interview and there were many differences in relation to dates. He stated that he was nervous at the interview and felt intimidated. He stated that some information was wrongly expressed.
The Tribunal does not accept this explanation. Firstly, the applicant gave evidence to the Tribunal that his application for the Protection visa was prepared by his migration agent on his instructions. He stated that the contents of his visa application including his written statement of claims were true and correct. Secondly, even if the Tribunal were to accept that the applicant was intimidated during his interview with the delegate and did not have a good interpreter (which it does not), this does not explain why his claims during the hearing on 7 October 2015 were significantly different to his written claims in his visa application. Thirdly, whilst the Tribunal accepts that with the passage of time it may be difficult to remember dates and the details of events, it does not accept that this explains the significant contradictions and inconsistencies in the applicant’s evidence.
During the hearing on 7 October 2015, the applicant gave evidence that he separated from his wife three or four months before his second child was born. His evidence was that his second child was born [in] 2012. In response to question fifteen (your relationship status) in his application for a Protection visa filed [in] August 2013, he stated that he was married. Question fifteen gave him seven options: never married or been in a de facto relationship, engaged, married, de facto, separated, divorced and widowed. The applicant gave evidence to the Tribunal that his visa application was prepared by his migration agent on his instructions and that it was true and correct.
When the Tribunal raised this as an issue with the applicant, he responded that because a Marriage Certificate was issued he and his wife are still legally married but are not living together. When the Tribunal noted that this was not consistent with the evidence he gave during his interview with the Department [in] March 2014 that he was separated from his wife, he responded that he explained that it takes a long time to get a divorce. When the Tribunal noted that he had the option of indicating that he was separated in his visa application but did not, he responded that he does not understand such things, he said the same thing and he had already said this. The Tribunal does not accept this explanation in view of his evidence that his visa application was prepared on his instructions and that it was true and correct. This inconsistency in the applicant’s evidence raises concerns in relation to his credibility and the veracity of his claims.
During the hearing on 7 October 2015, the Tribunal asked the applicant what he thought would happen if he returned to Mongolia. He responded that he does not think it is necessary for him to return to Mongolia. He stated that he is not sure if his father and [sibling] have found out about him and maybe they have. He stated that he has no necessity to go back. When asked what would happen if he was unable to get a visa and had to return, he responded that he would not return to Mongolia and would go to another country. When asked why, he responded that he has no incentive to return to Mongolia. He stated that when he left Mongolia he left everything behind. He stated that there is nothing for him to go back to. He stated that he would have to start again from zero and did not want that.
The applicant’s response is not consistent with his claimed fears in his visa application including his fear that he will be sent to gaol if he returns to Mongolia. This inconsistency in the applicant’s evidence raises concerns in relation to his credibility and the veracity of his claims.
Findings
Having considered all the applicant’s claims and the evidence, the Tribunal is of the view that he is not a witness of truth and that he fabricated his material claims for the purpose of obtaining a Protection visa. The Tribunal finds that he is not a credible witness.
The Tribunal does not accept that the applicant is homosexual or bisexual or perceived to be homosexual or bisexual. The Tribunal does not accept that the applicant ever engaged in any homosexual activities or relationships and rejects all of the applicant’s claims in this regard. The Tribunal does not accept that the applicant was ever assaulted by any person because of his actual or perceived sexuality. The Tribunal does not accept that the applicant was ever arrested, detained or assaulted by the Police or the Mongolian authorities. The Tribunal does not accept that the applicant is of adverse interest to the Police or any other Mongolian authority.
The Tribunal does not accept that the applicant fears that, if he returns to Mongolia, he will be outed as a homosexual and that this would result in detrimental consequences for him. The Tribunal does not accept that the applicant will be sent to gaol at the instigation of his wife’s cousin if he returns to Mongolia. The Tribunal does not accept that the applicant’s relationship with his wife has broken down or is breaking down because of his sexuality. The Tribunal does not accept that the applicant is at risk of serious harm for any of the reasons claimed if he returns to Mongolia.
The Tribunal accepts that the applicant does not wish to return to Mongolia because he feels that there is nothing for him to go back to and he does not wish to have to start again from scratch.
Having considered all of the applicant’s claims, individually and cumulatively, the Tribunal finds that there is no real chance that he would be at risk of persecution on the grounds of membership of a particular social group or any other Refugees Convention reason if he returns to Mongolia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Refugees Convention reason. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicant’s claims under complementary protection.
In view of the above findings, and for the reasons given above, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for the reasons claimed.
Having considered all of the applicant’s claims, individually and cumulatively, the Tribunal is not satisfied, for the reasons given above, that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Mongolia now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Mongolia, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
The Tribunal finds that the applicant does not satisfy the criteria in s.36(2)(a) or s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.

Linda Symons
Member

[2015] AATA 3528

23 October 2015

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction