1419175 (Refugee)

[2016] AATA 4165

1419175 (Refugee) [2016] AATA 4165 (7 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419175

COUNTRY OF REFERENCE:                  Mongolia

MEMBER:Linda Symons

DATE:7 July 2016

PLACE OF DECISION:  Sydney

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

Statement made on 07 July 2016 at 3:26pm

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

1. 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).

2. The applicant, who claims to be a citizen of Mongolia, arrived in Australia [in] November 2012 as the holder of a [temporary] visa. This visa was valid until [August] 2014. [In] August 2014, he was granted a Bridging visa in association with his application for a Protection visa.

3. The applicant applied to the Department of Immigration and Border Protection (the Department) for the Protection visa [in] November 2013 and the delegate refused to grant the visa [in] October 2014. On 24 November 2014, he applied to the Tribunal for review of that decision.

4. The applicant appeared before the Tribunal on 4 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.

5. 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

6. 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

7. 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

8. 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

9. 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 –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

10. The applicant’s claims in his visa application are summarised as follows:

    ·He was born in Ulaanbaatar in Mongolia on [date]. He attended Secondary School from [year] to [year] and university from [year] to [year].

    ·He came to Australia [in] November 2012 on a [temporary] visa.

    ·Since he was in Year [grade] at school he knew he was homosexual but kept it a secret. This had a negative impact on his mind and he found it hard to be with his friends and family.

    ·One of his best friends at school, when he was in Year [grade], was called [Mr O]. After completing his entry exams for university, he and Mr O decided to meet in August. They shared their secrets and disclosed to each other that they are homosexual. Mr O asked him not to tell anyone.

    ·After graduating from High School, he and Mr O became lovers. They chose to meet at places where there were not many people around. He was supposed to start university on [date] and Mr O was to leave for China to start university in mid- September. They thereafter kept in contact through text messages. They would meet during their summer holidays in July and winter holidays in January. This continued for 3 years.

    ·In July 2009, at the beginning of the summer holidays, he received a message from Mr O telling him that his brother had found out about their interactions and bashed him. He suggested that they stop communication for a while.

    ·[In] September 2009, [number] men went to his university wanting to meet him. When he asked why they wanted to meet him, they responded that he would find out when they met. They took him to [a location] and bashed him causing serious injuries. They warned him about trying to contact or meet their brother again. He had injuries [and] damage to parts of his body. He had to take 1 year off university for this reason. He was in hospital for 3 months and recovered at home for the rest of the time. He suffered [an] injury and received treatment for it.

    ·[In] October 2009, his mother brought his mobile telephone to the hospital. When he checked his telephone there was a message instructing him not to say anything to the Police or very bad things would happen to his family. He was instructed to erase the message. The Police went to the hospital a few times and questioned him about his attackers. He responded that he did not see them because he was afraid for the safety of his family.

    ·He returned to his studies in September 2010 and completed his studies on [date]. Between 2010 and 2011, he continued to receive threatening messages such as “you sickening homosexual, disgracing Mongolia’s face, will kill you whenever our paths cross.” The messages were from unknown numbers. [In] September 2010, he received a message from Mr O telling him that his brother had found out about their relationship, was “pressing down” on him, made him disclosed his telephone number and school and his brother went there to beat him. He warned him to be careful as his brother was a member of the Dayar Mongol movement. He stated that he lived in constant fear thereafter and did not meet Mr O again.

    ·In June 2011, he was walking on the street when he bumped into Mr O. They went to a coffee shop nearby and did not notice that Mr O’s brother’s friends were watching them. He and Mr O spent the day together and then went to their respective homes. Mr O was bashed by unknown people and hospitalised that evening. He received a telephone call the following day. The caller was yelling at him saying his brother was beaten and was in hospital because of him. He threatened to find him and kill him. He disconnected the telephone call.

    ·The following morning he packed his clothes and went to his [relative]’s home in [another] Province where he hid for 4 months. He returned to Ulaanbaatar in October 2011, switched on his mobile telephone, saw many messages, read some of them and deleted the rest.

    ·A month later he asked his parents to financially support him to study overseas. His parents agreed to send him to Australia to study but it took some time as his parents were busy. His family moved residence in May 2012. His family questioned him about what was going on for him but he kept silent. He did not disclose his homosexuality for fear of being “evicted from his family and the Mongolian people.” He did not tell them about people pursuing him as they would have contacted the Police and compromised their safety.

    ·After his family moved residence [in] May 2012, he commenced the paperwork for his Student visa. He lodged his application for the visa [in] August 2012. He stayed at home at all times while waiting for his visa application to be processed. He was still receiving daily messages. He changed his telephone number in September 2012 but a few days later received the messages on his new number. He kept receiving messages to tell Mr O’s brother where he was and threatening to eliminate him.

    ·In November 2012, he received notification that his visa application was approved. He left Mongolia [in] November 2012. At the airport, he received a text message saying they will see him when he gets back, Dayar Mongol will not let him get away, he will be killed if he returns, every time he sees his gay brother with a disability he thinks of him.

    ·He is fearful because of his “sexual tendencies” and seeks protection.         

11. The applicant provided to the Department a copy of an Academic Transcript from the [University], the applicant’s Birth Certificate, Citizenship Card, the bio data page of his passport and Secondary School Certificate.

12. The applicant attended an interview with the Department [in] October 2014. During the interview, he re-iterated and expanded on his written claims. He also made the following new claim:

    ·Mr O’s brother goes to his home in Mongolia and when his parents ask who it is he does not respond. The last time he went to his home was 2 months ago. He also telephones his home.

13. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated [in] October 2014. He has also lodged with the Tribunal a copy of the bio data page of his passport, an educational DVD issued by the LGBT Centre in Mongolia and a CD of his record of interview with the Department [in] October 2014.

    Nationality

14. The Tribunal finds that the applicant is a citizen of Mongolia, based on his Mongolian passport, his evidence and his fluency in the Mongolian language, 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 he has a right to enter and reside in any country other than his country of nationality.

    Does Australia have protection obligations to the applicant under the Refugees Convention?

15. The applicant gave evidence to the Tribunal that his migration agent prepared his application for a Protection visa based on his instructions. He stated that his instructions were true and correct and that he was satisfied that his visa application was accurate and complete. He stated that there have been no changes in his circumstances since he filed his visa application. 

16. During the hearing, the Tribunal discussed with the applicant his background, his family, his studies, his relationship with Mr O, his reasons for leaving Mongolia and why he fears returning to Mongolia. The Tribunal found aspects of his evidence to be vague, evasive, implausible, contradictory and unconvincing. He made new claims throughout the process. There were a number of inconsistencies in his evidence. His conduct was not consistent with his claims. The Tribunal has concerns in relation to his credibility and the veracity of his claims. The Tribunal’s concerns are noted below.

17. In his visa application, the applicant claimed that since he was in Year [grade] at school he knew he was homosexual but kept it a secret. He claimed that he subsequently had a homosexual relationship with Mr O in Mongolia. During the hearing, he gave evidence that he has “not discovered” himself yet and is interested in both men and women. He stated that in Australia most of his friends are woman although he has not had a sexual relationship with any of them. He stated that he had an intimate relationship with a man in Mongolia but it was not a sexual relationship. This inconsistency in his evidence raises concerns in relation to the credibility of his claim that he is homosexual.

18. In his visa application, the applicant claimed that after he graduated from High School in [year] he and Mr O became lovers. He claimed that they had a relationship for 3 years. During the hearing, he initially gave evidence that he commenced a relationship with Mr O in 2010 and subsequently changed his evidence to 2006. When asked how his relationship with Mr O developed, he was evasive. When asked where they would meet, he stated that it was hard to say, they met in many places, they usually met in a park, they tried not to meet in public places where there were many people. He stated that on a couple of occasions they watched a movie together in a VIP room in the cinema. When asked where they were when they were intimate, he stated mostly in the park at night but not all the time because the climate in Mongolia is very harsh.

19. The Tribunal found the applicant’s evidence in relation to his relationship with Mr O to be evasive and lacking in detail. The Tribunal also found his evidence that he and Mr O tried not to meet in public places where there were many people to be inconsistent with his evidence that they usually met in a park and in a cinema on two occasions. The Tribunal also finds it implausible that they were intimate in a public park when they were trying to keep their relationship a secret. These issues raise concerns for the Tribunal in relation to the credibility of the applicant’s claims.

20. The applicant gave evidence to the Tribunal that Mr O started attending university in China in September 2006 and after that they only saw each other during the university holidays in January and July. He stated that in 2010 he received a message from Mr O telling him that his brother had found out about their relationship, had beaten him and warned him to be careful. He stated that he was contacted by someone who said he wanted to see him. He stated that when he asked him why, he replied ‘you will find out when you come with us’. He stated that he met two men who identified themselves as Mr O’s brothers, warned him to stay away from Mr O, verbally abused him and beat him up.

21. The Tribunal finds it implausible that, after Mr O had contacted the applicant and told him that their relationship had been discovered by his brother, his brother had beaten him up and warned him to be careful, the applicant would then agree to meet with a stranger and not even know why this stranger wanted to meet him. This raises concerns for the Tribunal in relation to the credibility of the applicant’s claims.

22. The applicant gave evidence to the Tribunal that when he went to meet the man in 2010, as arranged, there were [number] men there who forcibly took him to a building site where they assaulted him. In his visa application, he stated that he met [number] men [in] September 2009 who took him to a construction site and beat him up. When the Tribunal raised as an issue with the applicant the inconsistency in his evidence in relation to how many men beat him up and its concerns in relation to the credibility of his claims, he responded that it is true that [number] men beat him up. He stated “I tried to say people rather than say [number] men”. He stated that everything that happened was true. He stated that he may have mixed things up and made a mistake. He stated that he was trying to think too much and made a mistake. The Tribunal does not accept this explanation.

23. In his visa application, the applicant claimed that when he was beaten up by these men [in] September 2009 he suffered serious injuries and was in hospital for 3 months. He stated that he spent a further nine months recovering at home and had a year off university. During the hearing, he gave evidence that he was treated in hospital for almost a month. He stated that he continued treatment thereafter from home and took a year off university. This inconsistency in his evidence in relation to how long he was in hospital raises further concerns for the Tribunal in relation to the credibility of his claims.

24. In his visa application, the applicant claimed that whilst he was still in hospital, [in] October 2009, his mother took his mobile telephone to him and there was a message on his mobile telephone telling him not to say anything to the Police or “bad things” would happen to his family. He claimed that he continued to receive daily threatening messages throughout 2010, 2011 and 2012. He claimed that he changed his mobile telephone number in September 2012. The Tribunal finds it implausible that he did not change his mobile telephone number soon after he started receiving daily threatening messages in 2010. His conduct in delaying for almost 3 years after he started receiving daily threatening messages to change his mobile telephone number is not consistent with his claims.

25. When the Tribunal raised this as an issue with the applicant, he responded that he is confident that he is not lying and is telling the Tribunal the truth. He stated that all these dates and actions may be because he tried too hard to remember what has happened to him. He stated that he would never do this just to get a visa in Australia. The Tribunal does not accept this explanation. His response does not address the issue raised by the Tribunal.

26. In his visa application, the applicant claimed that [in] September 2010 he received a message from Mr O telling him that his brother had found out about their relationship, made him disclose his telephone number and school, his brother went there to beat him and warned him to be careful as his brother was dangerous and a member of Dayar Mongol. The Tribunal finds this evidence to be contradictory. Firstly, because the applicant claimed that Mr O had already sent him a message in July 2009 telling him that his brother found out about their relationship. Secondly, Mr O’s brother already knew his mobile telephone number because he had contacted him in September 2009 to arrange to meet him and had been sending him threatening messages since then. Thirdly, Mr O’s brother already knew which ‘school’ he attended because he met him at his university [in] September 2009 accompanied by [number],, or alternatively [number] other people, and beat him up. Therefore, there was no need for Mr O to send him the message [in] September 2010 and this raises further concerns for the Tribunal in relation to the credibility of his claims.

27. In his visa application, the applicant claimed that in June 2011 he bumped into Mr O on the street, had a coffee with him, spent the day with him and then went their separate ways. He claimed that on the following day he received a telephone call from Mr O’s brother telling him that Mr O had been beaten up, was in hospital because of him and threatening to find him and kill him. He claimed that on the following day he went to his [relative]’s house in [another] Province where he hid for four months. During the hearing, the applicant initially gave evidence that he lived with his family in Ulaanbaatar at the same address from 2002 to May 2012 and in May 2012 he and his family moved to a different address in Ulaanbaatar where he lived until he left Mongolia for Australia [in] November 2012. He subsequently changed his evidence and stated that he went to his [relative]’s house in [another] Province where he lived for two months.

28. The applicant has therefore given three different versions of this evidence. When the Tribunal raised this as an issue with him, he responded that he has difficulty remembering dates when he is under pressure. The Tribunal accepts that it may be difficult for some people to remember dates when under pressure. However, the issue the Tribunal raised was not dates but the inconsistency in his evidence in relation to the length of time he was in hiding at his [relative]’s house or, alternatively, whether he was in hiding at all. These inconsistencies in his evidence raise concerns for the Tribunal in relation to the credibility of his claims.

1. During his interview with the Department [in] October 2014, the applicant made a new claim that Mr O’s brother goes to his home in Mongolia and when his parents ask who it is he does not respond. He claimed that the last time this happened was 2 months ago (August 2014). He also claimed that Mr O’s brother telephones his home. During the hearing, he gave evidence that when he was at his [relative]’s house in 2011 a couple of people went to his house on two occasions and asked for him. When asked if they have been back since then, he stated that after he came to Australia there were two or three occasions when people went to his house asking for him. He stated that his family told him someone had gone to their house a month ago (April 2016). He stated that they went to his house 5 months after he came to Australia (April 2013). He stated that he did not find out about this until 3 months later (July 2013).

2. The applicant lodged his application for a Protection visa [in] November 2013. He made no mention in his visa application that Mr O’s brother went to his home looking for him when he was at his [relative]’s home in 2011. He made no mention in his visa application that Mr O’s brother had been to his house after he came to Australia. The Tribunal is of the view that if this happened he would have mentioned it in his visa application. His failure to do so raises concerns in relation to the credibility of these claims. When the Tribunal raised this as an issue, he responded that he did not want to prepare for the hearing like an exam and read all his materials again. He stated that what he tried to do was to give as much information as he could remember and try and give the information from his heart. This response does not address the issue raised by the Tribunal.

3. In his visa application, the applicant claimed that he returned to Ulaanbaatar in October 2011. His evidence is that he continued to live in Ulaanbaatar until [November] 2012 when he left Mongolia to travel to Australia. He has not claimed that Mr O’s brother went to his home looking for him during the period he lived at his home from October 2011 to November 2012. The Tribunal is of the view that if Mr O’s brother was looking for him, knew where he lived and was going to his house whilst he was at his [relative]’s house in 2011 and after he left Mongolia in November 2012, it is implausible that he would not have also gone to his house between October 2011 and November 2012 looking for him. The Tribunal also finds it implausible that, in circumstances where Mr O’s brother knew where the applicant lived and wanted to extract revenge from him, he had no face to face contact with the applicant during this period. These issues raise further concerns for the Tribunal in relation to the credibility of his claims.  

4. The Tribunal finds it implausible that, in circumstances where Mr O’s brother was going to his home looking for him whilst he was “in hiding” at his [relative]’s home, the applicant chose to return to his home in Ulaanbaatar. His evidence to the Tribunal is that when he was a student he worked in his parents’ [business] when not studying and after his graduation he did a little work in the [business]. This is not consistent with him being in hiding from Mr O’s brother. These issues raise further concerns for the Tribunal in relation to the credibility of his claims. 

5. In his visa application, the applicant claimed that he returned to Ulaanbaatar in October 2011. His evidence is that he continued to receive threatening messages on his mobile telephone. However, his evidence is that he did not apply for a [visa] to travel to Australia until [August] 2012. The Tribunal is of the view that if he feared for his life he would have made arrangements to leave Mongolia as soon as possible. His conduct is not consistent with his claims. When this was raised as an issue, the applicant responded that it is difficult for him to remember dates especially when he is under pressure. This response does not address the issue raised with him. His delay in applying for a visa to leave Mongolia raises concerns in relation to the credibility of his claims.

6. The applicant arrived in Australia [in] November 2012 on a [visa] which is a temporary visa. He applied for a Protection visa [in] November 2013 which was almost 1 year later. The Tribunal is of the view that he if feared for his life if he returned to Mongolia he would have applied for protection as soon as possible. When the Tribunal raised this as an issue, he responded that he did not know about Protection visas when he came to Australia and only found out about them later. The Tribunal does not accept this explanation. The Tribunal would expect the applicant to have sought some immigration advice as soon as possible to find out his options for remaining in Australia on a permanent basis and he would then have found out about seeking protection. His delay in applying for protection raises issues in relation to the credibility of his claims.

7. The applicant gave evidence to the Tribunal that when he was in Mongolia he did not go to any venues that homosexual men go to. He stated that he had no information about such venues. He stated that he got a lot of negative information and watched a video online. He stated that he did not contact any organizations in Mongolia that support homosexual men. When asked how he has exercised his freedom in Australia to have a homosexual relationship, he responded that he went to the Mardi Gras parade twice; once in 2012 and once in 2016. The Mardi Gras in Sydney in 2012 was held on Saturday 3 March 2012.[1] The applicant did not arrive in Australia until [November] 2012 and therefore he could not have attended the Mardi Gras in Sydney in 2012 as claimed. When the Tribunal raised this as an issue, he responded that he cannot remember dates and what he tried to say was that he did go to the Mardi Gras soon after he arrived in Australia. The Tribunal does not accept this explanation. Even if he was referring to the Mardi Gras parade in Sydney on 2 March 2013[2], that was not soon after his arrival in Australia. This raises concerns in relation to the  credibility of his claims.

   [1] Equality the message of 2012 Mardi Gras, The Sydney Morning Herald, 3 March 2012. ( Sydney Mardi Gras parade 2013, ABC News, 3 March 2013. (>

   During the hearing, when issues were raised with the applicant he frequently responded that he had difficulty remembering dates. He has not provided the Tribunal with any medical or psychological evidence in relation to his memory. The Tribunal is not satisfied, on the evidence before it, that the applicant’s memory or poor memory can explain the inconsistencies and contradictions in his evidence.

8. The Tribunal asked the applicant how homosexual men meet and socialise in Australia. He responded that he met a homosexual couple in [suburb] and they told him they have a lot of freedom in Australia. He stated that he heard about a night club where a lot of homosexual men go but he has not been there. When asked whether he was aware of any books or magazines published in Australia for homosexuals, he responded that his reading skills are not good and he never thought of magazines or books. He stated that he saw a magazine once. He then stated that he saw a magazine a couple of times and tried to read it.

9. The applicant’s lack of knowledge of the “gay scene” in [Australia] is of concern for the Tribunal. Whilst the Tribunal is mindful of the fact that his lack of participation in the “gay scene” in [Australia] does not mean that he is not homosexual or bisexual, the Tribunal is of the view that he would have sought to exercise the freedom he has in Australia to find out more information about options available to him. The Tribunal does not accept that his “reading skills” prevented him from doing so. He was tertiary educated in Mongolia and has studied in Australia in English. He has provided a DVD to the Tribunal which he stated that he obtained from Youtube. This tends to indicate that he has access to a computer and sufficient computer skills to search the internet and obtain this information. These issues raise concerns in relation to whether the applicant is homosexual or bisexual.

10. The Tribunal asked the applicant whether it is illegal to have a same sex relationship in Mongolia and he responded that he did not know. He stated that a lot of people are against it and people who are labelled “normal” are against homosexuality. The applicant has a university level education in Mongolia. The Tribunal would expect that if he knew he is homosexual from the time he was in Year [grade], as claimed, and was in a homosexual relationship in Mongolia, he would have found out whether his conduct was likely to bring him into conflict with the law. His lack of knowledge of this raises further concerns in relation to whether he is homosexual or bisexual.

11. The Tribunal has had regard to all the evidence provided by the applicant, including the DVD published by the LGBT Centre in Mongolia. The Tribunal has had regard to other country information on Mongolia particularly in regard to the issue of homosexuality and Dayar Mongol.

12. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

    Findings

13. Having considered all the applicant’s claims and all the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.

14. The Tribunal accepts that the applicant was born on [date] in Ulaanbaatar in Mongolia. The Tribunal accepts that he has a Bachelor [degree] from University] and graduated on [date].

15. The Tribunal accepts that the applicant’s parents owned two businesses in [Ulaanbaatar]. The Tribunal accepts that he worked in his parents’ [business] whilst a student and continued to do so after he graduated. The Tribunal accepts that he looked for employment in Mongolia in the area of his qualifications but never worked in his field in Mongolia. 

16. The Tribunal accepts that the applicant applied for a [temporary] visa to study in Australia in August 2012, left Mongolia [in] November 2012 and arrived in Australia [in] November 2012.

17. The Tribunal does not accept that the applicant is homosexual or bisexual or is perceived to be either. The Tribunal does not accept that he had a homosexual relationship with Mr O in Mongolia. It follows that the Tribunal does not accept any of his claims that flow from that.

18. The Tribunal does not accept that the applicant is of adverse interest to Mr O’s family, Dayar Mongol or the Mongolian authorities.  

19. The Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for any of the reasons claimed if he returns to Mongolia now or in the reasonably foreseeable future. 

20. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of his membership of a particular social group or any other Refugee 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 Refugee 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

21. The Tribunal has considered the applicant’s claims under complementary protection. 

22. The Tribunal has rejected the entirety of the applicant’s material claims on the basis that they were fabricated for the purpose of obtaining a Protection visa. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Mongolia now or in the reasonably foreseeable future.

23. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal is not satisfied 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.    

24. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to 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

25. The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.

26. 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

27. The Tribunal affirms the decision not to grant the applicant a Protection visa.

Linda Symons

         

Member