1419175 (Refugee)

This decision concerns an applicant seeking a Protection visa, whose claims were considered by a Tribunal Member, Linda Symons. The applicant alleged he was homosexual and had been subjected to persecution in Mongolia, including physical assaults and threats, due to his sexual orientation and a relationship with another man. He claimed these events led him to fear for his safety and seek protection in Australia.

The central legal issues before the Tribunal were whether the applicant was a person to whom Australia had protection obligations under the Migration Act 1958 (Cth), specifically whether he had a well-founded fear of persecution for a Refugee Convention reason, or whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia, there was a real risk that he would suffer significant harm. This required the Tribunal to assess the applicant's credibility and the veracity of his claims regarding his sexual orientation and the persecution he alleged to have suffered.

The Tribunal Member found the applicant was not a witness of truth and had fabricated his material claims to obtain a Protection visa. This conclusion was based on significant inconsistencies and contradictions in the applicant's evidence, particularly concerning his attendance at the Sydney Mardi Gras and his knowledge of the homosexual community and legal status of same-sex relationships in Mongolia. The Tribunal Member noted the applicant's tertiary education and studies in Australia, which made his claimed lack of knowledge about these matters, and his alleged poor memory, unconvincing. Consequently, the Tribunal did not accept that the applicant was homosexual or bisexual, nor that he had experienced a homosexual relationship or faced persecution from Mr O's family, the Dayar Mongol movement, or Mongolian authorities.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a Protection visa, finding that he did not satisfy the criteria under s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth). The Tribunal was not satisfied that there was a real chance the applicant would suffer serious harm or persecution if returned to Mongolia.