1421008 (Refugee)

[2017] AATA 155

1421008 (Refugee) [2017] AATA 155 (27 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1421008

COUNTRY OF REFERENCE:                  Mongolia

MEMBER:Louise Nicholls

DATE:27 January 2017

PLACE OF DECISION:  Sydney

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

Statement made on 27 January 2017 at 5:26pm 

CATCHWORDS

Refugee – Protection visa – Mongolia – Complimentary protection – Particular social group – Bisexual men – Heterosexual relationships – Fear of harm from family – Does not identify as homosexual – Improvements for LGBT community in Mongolia

LEGISLATION
Migration Act 1958, ss 5(1), 36, 48, 65, 91
Migration Regulations 1994, Schedule 2

CASES
SZRNJ v MIAC [2014] FCCA 782

SZGIZ v MIAC (2013) 212 FCR 235
AMA15 v MIBD [2015] FCA 1424

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. The applicant in this review claims he is a citizen of Mongolia and is [age]. He is seeking review of a decision made [in] December 2014 to refuse his application for a protection visa.

2. The applicant claimed he would suffer significant harm if he was removed from Australia to Mongolia because of his bi sexual orientation.

3. The applicant arrived in Australia [in] January 2011. He first applied for a protection visa [in] April 2011 and his application was refused. He sought merits review in the Refugee Review Tribunal and the Tribunal affirmed the refusal decision.

4. [In] July 2013 the applicant made a second application for a protection visa which was initially determined to be invalid but accepted as a valid application following the decision in SZRNJ v MIAC [2014] FCCA 782. He provided a number of documents including

   ·Copies of applicant’s identification card and passport extract.

   ·Statutory Declarations made by the applicant [in] June 2011 and [in] December 2012.

   ·Submissions made by the applicant’s representative to the delegate [in] August and [in] December 2011.

   ·Submissions made by the applicant’s representative to the Refugee Review Tribunal in October 2012.

   ·Submissions made by the applicant’s representative to the Ministerial Intervention Unit [in] November 2012.

   ·Medical Reports from [a doctor] [in] November 2011; [in] August 2012; [in] December 2012.

   ·Pathology [Report] [in] July 2011.

   ·Letter from [names] [in] December 2012.

5. The applicant attended an interview with the delegate [in] October 2014 and the applicant’s representative made submissions following that interview ([in] November 2014).

6. [In] December 2014 the delegate of the Minister for Immigration refused to grant the visa protection visa under s.65 of the Migration Act 1958 (the Act). The delegate found that the applicant did not meet the criteria for a protection visa.

7. This is an application for review of that decision. The applicant gave the Tribunal a number of documents to the Tribunal including;

   ·Statutory declaration of the applicant made [in] September 2016.

   ·Statutory declaration of [Mr A] made [in] September 2016.

8. The applicant appeared before the Tribunal on 28 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages. The applicant gave evidence about his background and claims at the hearing.

9. An earlier hearing was postponed at the request of the applicant. The mother of the applicant’s [Child 1] ([Ms B]) and his [Child 1] had separately applied for protection visas and he wanted to await the outcome of their applications before attending a Tribunal hearing.

10. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing. Following the hearing the applicant’s representative made written submissions which addressed the applicant’s claims for protection.

11. There are no certificates restricting disclosure of material on any Departmental files provided to the Tribunal in connection with the review.

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION

13. The issue in this case is whether the applicant meets the complementary protection criterion.

    How does the Tribunal deal with a further protection visa application made before 28 May 2014?

14. The applicant applied for a protection visa [in] July 2013. In answer to Question 2 in Form B of the application he stated that he had previously applied for a protection visa [in] April 2011 File no CLF [number]. At the Tribunal hearing the applicant stated that he arrived in Australia in January 2011 and previously applied for his protection visa in April 2011. There is no dispute that his first application was refused and his application for review was unsuccessful.

15. The decision by the Refugee Review Tribunal affirming the decision to refuse the protection visa considered both the refugee and complementary criterion even though the delegate had not considered the complementary protection criterion.

16. Taking all of the above into account the Tribunal considers that the applicant made a protection visa application in 2011 and his first application was refused. He made a further application [in] July 2013 and that is the subject of this review.

17. Where an application made on the basis of the refugee criterion was refused by the Department without considering complementary protection, an applicant may still apply again on the basis of the complementary protection criterion, even if the Tribunal considered the complementary protection criteria in affirming the refusal.[1]

    [1]          In SZRNJ v MIAC [2014] FCCA 782 (Judge Cameron, 17 April 2014), the Federal Circuit Court held that a further protection visa application based on complementary protection was valid, notwithstanding that the Tribunal had addressed complementary protection in its review of the earlier decision. The Court drew a distinction between the delegate’s decision and the Tribunal’s decision for the purposes of s.48A, finding that the Tribunal’s decision was irrelevant to the question of when an application has been ‘refused’: at [22]-[23].

18. Where a further application for a protection visa was made before 28 May 2014, s.48A applies as it was before amendment by the Migration Amendment Act 2014. Before this amendment, s.48A(2) provided that an ‘application for a protection visa’ included ‘an application for a visa, a criterion of which is mentioned in s.36(2)(a), (aa), (b) or (c)’, which respectively relate to being either a person in respect of whom Australia has protection obligations under the Refugees Convention, a person in respect of whom Australia has protection obligations under the ‘complementary protection’ criterion, or a member of the same family unit of either such person.

19. In SZGIZ v MIAC, the Full Federal Court held that the operation of the statutory bar in s.48A was confined to a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application.[2] That is, it did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) or the family membership criteria in s.36(2)(b) or (c) while he or she remained in the migration zone.

    [2] SZGIZ v MIAC (2013) 212 FCR 235 at [38].

20. The Federal Court in AMA15 v MIBD held that where an applicant has already been assessed against the refugee criterion, neither the delegate nor the Tribunal has any jurisdiction to consider a further application made on the basis of the complementary protection criterion against the refugee criterion.[3]

    [3] AMA15 v MIBD [2015]FCA 1424 at [48].

21. Applying the reasoning in SZGIZ v MIAC, AMA15 v MIBP and SZRNJ the Tribunal finds it does not have the power to consider the Refugee Convention criterion in s.36(2)(a), and has proceeded on the basis that it can only consider the applicant’s claims under the Complementary Protection provisions in s.36(2)(aa) of the Act.

22. The relevant law is set out in Attachment A.

    What is the applicant’s receiving country?

23. The applicant provided the Tribunal with a copy of his Mongolian passport. He also gave evidence he was born in Mongolia and the Tribunal considers  he appeared familiar with the geography of Mongolia and cultural and social aspects of Mongolian society.

24. The Tribunal is satisfied that the applicant is a citizen of Mongolia and that Mongolia is the receiving country for the purposes of s36(2)(aa).

    Assessment of Claims

25. The applicant’s claims for protection are contained in the statutory declarations and submissions set out above. He also discussed his claims with the delegate [in] October 2014. He gave oral evidence on his claims at a Tribunal hearing on 28 September 2016.

26. The applicant and his former partner ([Ms B]) and [Child 1] arrived in Australia in January 2011. The applicant claimed that he has a bisexual orientation and [Ms B] is a lesbian and they formed a companion relationship, lived together in Mongolia and [Ms B] gave birth to their [Child 1] so they could represent themselves as a heterosexual married couple in Mongolian society. The applicant claims that the purpose of the relationship was so they could reduce social and family pressure and avoid discrimination. They were friends and are parents of their child but are not in a long term sexual relationship.

27. Previous decision makers have treated the applicant’s claims with some scepticism. They have considered that the applicant’s history suggests that he has a heterosexual orientation as he had been previously married and he and his first wife had a child and he then formed a relationship with [Ms B] and they have had a child together.

28. The Tribunal has considered the evidence relating to the applicant’s sexual orientation and how it is expressed and it has also considered the evidence relating to the current treatment of Lesbian, Gay, Bisexual and Transgender (LGBT) individuals in Mongolia.

    Background

29. The applicant gave oral evidence he is [age] and was born in [Mongolia]. His parents are still alive and living in Ulan Bataar, the capital of Mongolia. He has [siblings]. He keeps in contact with his family by telephone and SKYPE.

30. He claims he is a Shamanist and his parents are Buddhists.

31. The applicant attended school in Ulan Bataar and then studied [course] in college. After a year of working as a [occupation] he returned to college to complete [another] qualification.

32. In 1997 he set up a [business] which traded in [goods]. He operated this business until he departed Mongolia in 2011.

33. He lived at his parents’ home until 2009 when he purchased his own apartment in Ulan Bataar. When he came to Australia he borrowed money from his brother to pay for travel and living expenses. After he came to Australia he transferred the apartment to his brother to repay his debt. He explained that when he left Mongolia he first travelled to [Country 1] and he then travelled to [Country 2]. He stayed in [Country 1] and [Country 2] for some time before he departed for Australia. He claimed he wanted to come to an English-speaking country which did not discriminate against homosexuality.

    What is the applicant’s sexual orientation?

34. The applicant stated that he married his first wife in 1997 when he was [age]. The applicant and his first wife met whilst they worked at the same [workplace] and they knew each other for 3 years. He claimed that he and his wife had a sexual relationship, she became pregnant and they married. His parents encouraged him to marry; however, the marriage only lasted for [number] months. They lived with their parents during the marriage.

35. The applicant claimed that the marriage broke down when the applicant told his wife that he was bi-sexual. She was shocked by this disclosure and they separated in 1997 and divorced in 2005. He and his wife had a [Child 2] who is now [age] and he told the Tribunal that he has not had any contact with his [Child 2] except for one occasion when [Child 2] was [age]. His wife refused to allow him contact; however, he told the Tribunal he did not take any action in the courts to have greater contact with his [Child 2].

36. He claimed his mother was told he had sexual contacts with other men. He denied he was interested in men but she tried to use a “Buddhist monk” to cure him on one occasion.

37. He told the Tribunal that he considered himself to be bi-sexual and is attracted to men and women. He stated that Mongolia has a small population and society does not accept homosexuality or bi-sexuality. He claimed that it was difficult to be open about sexuality and he had to hide his attraction to men in Mongolia because it was not socially acceptable.

38. He stated that he had sexual contact with a few foreigners in Mongolia and a secret relationship with [someone] who was married with a family. He did not have any long-term relationships.

39. He stated that he decided to remarry for his self-protection so that the Mongolian community would not consider that he was LGBT. His friend [Ms B] had the same problem; she was a lesbian and had encountered family and social pressure to get married. They decided to form a sham relationship and hide their sexual orientation. They met in 2005 at a small party through mutual friends. He was aware she was a lesbian and had a sexual partner but they decided to go through a marriage for her family.

40. The applicant and [Ms B] decided to have a child and they moved in together in 2009 before their [Child 1] was born. They lived together in the apartment together but did not have an ongoing sexual relationship. They did have sexual contact so that they could have a child but [Ms B] fell pregnant after that one contact; he claimed that IVF and artificial insemination were not practical options for the couple in Mongolia. They pretended to the outside world that they were living as a normal heterosexual couple.

41. He claimed he had occasional sexual partners in Mongolia, mainly with foreigners but when he gave evidence about relationships his evidence was scant, vague and lacking in specificity.

42. When asked how he saw his sexual preference he stated he thought about 80% preference for male partners and 20% preference for female partners.

43. The applicant gave evidence that he, [Ms B] and their [Child 1] travelled to [Country 1] and [Country 2] together and then travelled to Australia in 2011. They all lived together in the same residence for about a year. The applicant explained that [Ms B] could not speak English and he felt he had to stay to help [Ms B] and their [Child 1] until they had settled in; they also shared costs. When she was more independent and did not need help they each found their own places to live in April 2012 although the applicant sees his [Child 1] each week and has [Child 1] on school holidays.

44. The applicant stated that he did not have any sexual contacts when he first arrived in Australia. He did not know what to do when he first arrived then he was taken into detention for a short time and discovered he had [a medical condition]. When he was released he went through a treatment regime which lasted a long time and he became depressed. It was only after he finished his treatment that he started looking to follow his preferred lifestyle about 18 months before the hearing. He went to a few gay venues and pubs.  He had a relationship with a person who had initially stated he would give evidence on the applicant’s behalf but became reluctant to do so given he was a temporary visa holder. The applicant did not use any gay websites and found the best way to meet people was in bars. He does not like to reveal his orientation to the Mongolian community which is a close-knit community.

45. In September 2016, the applicant provided a further statutory declaration where he outlined his homosexual relationships from about 2015 and in particular from January 2016. He referred specifically to a six-month relationship to a [man] in early 2016, a [man] in 2016 and several casual sexual partners.

46. The applicant provided one statutory declaration from a witness who stated that he had arrived in Australia and obtained a protection visa on the basis of his homosexuality in 2009. The witness stated he met the applicant in October 2015 at a party where most of the party guests were homosexual. As the witness and his partner were homosexual and Mongolian the applicant appeared pleased to meet them. They exchanged contact details. The witness organised a sex party at his house and the applicant attended and the witness observed the applicant having homosexual sexual contact with other guests.

47. The Tribunal has considered evidence of the applicant’s relationships in Mongolia, his travel with [Ms B] to [Country 1] and China, his cohabitation with [Ms B] in Australia and his explanation for these events. It has also considered the evidence he has given regarding his history in Australia, his lack of sexual contacts until 2015 and the evidence given by his friend [Mr A] regarding his observations of the applicant’s behaviour at a bar and a party he held in July 2016.

48. Whilst the Tribunal is troubled by many aspects of his evidence it considers that it is possibly true that the applicant has had some homosexual contacts in Mongolia and Australia although there is little supportive evidence of these contacts other than the statutory declaration of [Mr A]. The applicant claims that he is bi-sexual; however, he has been concerned to keep the nature of his sexuality hidden in Mongolia and to a large extent in Australia.

49. Taking into account the past conduct of the applicant the Tribunal finds that the applicant has had a heterosexual partner, heterosexual contact with [Ms B] and is the father of two children. He is [age] and claimed he had some casual homosexual contacts in Mongolia but he has not had a long term partner in Mongolia and gave little detail at hearing about his claimed bi-sexual lifestyle in Mongolia. The Tribunal accepts that he may have occasionally experimented with homosexual sexual contact but did not wish to live an openly homosexual lifestyle because he does not identify as a homosexual or bi sexual man.

50. The Tribunal also notes that the applicant obtained a statement dated [in] December 2012 from [names] who had employed the applicant to assist with renovations. They wrote a letter of support but made no mention of the nature of the applicant’s claims and their support was very general in its terms.

51. The applicant’s evidence regarding his lifestyle in Australia supports the Tribunal’s finding that he does not identify as a homosexual or bi sexual man. The applicant, [Ms B] and their child travelled to [Country 1] and [Country 2] together before they travelled to Australia on [temporary] visas. When they first arrived they lived in the same residence for a significant period of time.   

52. In these circumstances, the Tribunal considers that although he may have had occasional sexual contacts he does not identify as a bi sexual man and does not fear harm if he returns to Mongolia as he does not intend to pursue a homosexual or bi-sexual lifestyle.

    Has the applicant suffered any harm or mistreatment in Mongolia?

53. The applicant has given evidence that he married in 1997 and the relationship broke down after about [number] months. He claimed that he told his wife that he was bi-sexual and that she separated from him and told her family about his bi sexuality. He could not give a reason as to why his wife told her family the reasons for the marriage breakdown.

1. The applicant claimed that his wife’s brother threatened him with harm and physically assaulted him because of what happened to his sister in 1997. He also claimed her brother was hostile to him because she had disclosed he was bi sexual. He claimed that her brother told people the applicant slept with men and that this caused an escalating problem for him. The brother and other people threatened and abused him and later tried to hurt him. He claimed that the applicant’s brother was gaoled in 2001 for [a crime] but also claimed that the brother was free most of the time during the sentencing period because he worked outside the gaol. There is no evidence that a person convicted of [a crime] in Mongolia could freely access the community during his sentence. The Tribunal finds this evidence implausible and does not accept it.

2. The applicant claimed that is wife’s brother asked him for money to keep quiet about his sexual contact with other men. He claimed that his wife’s brother came with other prison inmates and abused him and asked him for money.

3. The applicant claims that the applicant’s brother will harm him if he returns to Mongolia for reasons of his bi sexual orientation; however the Tribunal does not accept this evidence. The applicant’s first marriage broke down in 1997 and he has had only one contact with his former wife in about 2004 when she allowed him to see his [Child 2]. The applicant claims that his wife’s brother was upset with him when the marriage broke down, and this may be so, but it does not accept that his wife’s brother will seek to harm him if he returns to Mongolia now or in the foreseeable future. He has been separated for almost 20 years, has had no contact with his former wife or [Child 2], he financially supported his [Child 2] throughout his life and there is no plausible reason why his former wife’s brother would seek to cause him harm if he returned to Mongolia.

4. The applicant claimed in his statement [in] June 2011, that his former wife’s brother and his friends mistreated him; however, he provided little plausible detail of these claims at hearing. The Tribunal considers that following the breakdown of his marriage that his former wife’s brother may have threatened him but it considers any such threats were made following the breakdown and arose from a private dispute. Given that 20 years have passed since the breakdown of the marriage the Tribunal does not accept that the applicant will face any harm from his former wife’s brother if he returns to Mongolia. Further whilst the applicant stated that Mongolia is a sparsely populated nation, the country information indicates the population of Ulan Bataar is 1.31 million[4] and the Tribunal does not accept that he will necessarily come into contact with him if he returns.

   [4] Statistics Department of Ulaanbaatar

5. The Tribunal does not accept that his former wife’s brother and friends mistreated the applicant and does not accept the applicant approached the police for assistance in relation to the claimed threats.

6. The applicant made claims in an earlier written statement that he feared his family disapproval if he returned and was concerned about his father and brother’s reaction to his bi-sexuality. The Tribunal does not accept he identifies as a bi sexual man and does not accept his family will harm him if he returns. The Tribunal notes his evidence that one of his brother’s lent him money to leave Mongolia and that the applicant has transferred property to him to repay the debt. The applicant also stated he has regular contact with his family suggesting they are on good terms.

7. The applicant’s evidence relating to his life in Mongolia including the long term operation of a successful small business, forming a companion relationship with [Ms B], having a [Child 1] and the purchase of an apartment in 2009 indicates the applicant conducted his life without interference from other persons. The Tribunal does not accept that his lifestyle in Mongolia or evidence he gave at hearing supports his claims of serious mistreatment by his former wife’s brother and police inaction in the face of serious threats of harm. It does not accept that if he returned to Mongolia he would face harm from his former wife’s brother, his associates or his own family.

   What is the situation for members of the LGBT community in Mongolia? 

8. County information indicates that in the past the LGBT community has faced a history of significant social discrimination and some individuals have suffered significant harm. The LGBT community has been closeted and some crimes have gone unreported due to social stigma and secondary victimisation by police.

9. However, as discussed with the applicant the current situation has significantly improved. In 2014 USAID and the UNDP produced a report “Being LGBT in Asia; Mongolia Country Report”[5] which reviewed the situation in 2014. By way of background it summarised the history as follows;

   [5] Being LGBT in Mongolia: Country Report UNDP USAID 2014

   LGBT discourse in Mongolia

   The Mongolian language until recently contained no word to express homosexual relations or non-traditional sexual orientation and gender identity (SOGI). There is little evidence of broader understanding of or tolerance towards LGBT people in Mongolia before the 20th century. There were no published records about LGBT people after the introduction of socialism in 1924 and until the 1990s. Homosexual relationships were shrouded in secrecy in part due to limitations on free speech. It was only with the adoption of Mongolia’s democratic 1992 Constitution that a more pluralist discourse became possible with subsequent notions of homosexuality and non-traditional gender identities becoming recognized topics of discussion in Mongolia. Mongolian LGBT discourse is relatively new, and largely limited to the capital Ulaanbaatar.

   To date, there is no published literature available on how diverse sexual orientation and gender identity was treated in Mongolia, suggesting that the subject entered into the public discourse only in the country’s recent history.

   A broader human rights discourse emerged with the adoption of a new Constitution in 1992 and the country’s transition to a democratic society. The Constitution guarantees equal protection to everyone under the law and provides everyone with the right to freedom of opinion and expression. The Law on Non-Governmental Organizations (NGOs) was adopted in January 1997, and Tavilan, the first organization serving gay men was established in 1999. As is the case in many countries, in the early 2000s, LGBT rights were closely linked with sexual health promotion targeting men who have sex with men (MSM) and a number of NGOs formed with the dual goals of promoting rights alongside sexual health. The LGBT Centre, the first explicitly pro-LGBT advocacy and human rights organization was formed in 2007, but was officially registered only in 2009 due to procedural challenges. In 2013, The LGBT community held the first-ever Pride Week in Mongolia.

10. The report goes on to discuss the overall context of LGBT rights in Mongolia. It notes

    Legal environment: The Constitution of Mongolia and other laws do not explicitly discriminate on the basis of sexual orientation and gender identity (SOGI). However, specific legal reforms are required in order to keep up with social changes and provide protection for LGBT people. Progress is being made in this area. By the amendment made in Article 20(1) of the Civil Registration Law in June 2009, a sex change can be registered in birth certificates or citizen identification cards based on a medical certification. Revisions made in the Law on HIV and AIDS in 2012 introduced protection of privacy and confidentiality of people living with HIV (PLHIV).A draft revision of the Criminal Code criminalizes discrimination based on SOGI. New draft revisions in the Law on Domestic Violence and the Law on Labor include provisions on SOGI. However, marriage is still defined as a union between a man and a woman which effectively prohibits same-sex or non-traditional gender marriages and excludes these partnerships from the right to adopt children, property rights, and issues relating to ending relationships. The constitutional clause on non-discrimination should include an open-ended category “or other basis” to ensure the principle of equality for all including LGBT people.

    Institutional environment: Mongolia’s National Human Rights Commission has raised awareness about LGBT rights and the need to introduce legislation that bans discrimination based on SOGI. There is little sensitization among civil servants, including health professionals and law enforcement officers about LGBT human rights and preventing discrimination based on SOGI. The majority of LGBT people surveyed reported that they have experienced some form of abuse by law enforcement which in some cases included blackmail and even violence due to their SOGI.

    Cultural and social environment: Mongolian culture is generally not open or welcoming to alternate or non-traditional sexual orientations and gender identity. Religion does not appear to play a significant role in contributing to negative attitudes but traditional norms place pressure on LGBT people to conform or hide their identities. At the personal level, significant violence towards LGBT persons has been recorded, including severe forms perpetrated by ultra-nationalist groups and individuals as well as instances of harassment and stigma.

    This report also looks at the role of international human rights mechanisms in Mongolia. Mongolia has ratified seven core human rights treaties, which have helped create the context for promoting LGBT rights, with the Universal Periodic Review (UPR)1 process and other UN reviews since 2010 leading to recommendations to recognize SOGI and protect LGBT rights. The reporting process required by the UPR has put pressure on the government to abide by international human rights standards. In the last few years, the Government of Mongolia made progress in reporting to international human rights mechanisms by setting up working groups and organizing consultations with civil society before submitting its reports. LGBT rights issues have been part of these consultations.

11. The report notes that there are 4 LGBT organisations in Mongolia; the LGBT Centre, Youth for Health Centre, Human Rights Youth-Health Support Center and Together Centre. All of these organisations are located in Ulanbaataar. These organisations have been successful in building partnerships with NGO’s like the Open Society Forum (OSF), the Centre for Human Rights and Development (CHRD), Globe International, Monfemnet – the National Network of Women NGOs, the National Centre Against Violence (NCAV), Oyunii Darkhlaa, National AIDSFoundation, Human Development Reproductive Health/Rights (NGO Network), Mongolian Women’s Foundation.[6]

    [6] Being LGBT in Mongolia: Country Report UNDP USAID 2014 Ibid.

12. The report notes the development of community programmes such as Gay Pride Week which commenced in September 2013, the Beyond Blue Sky multimedia exhibition, the Blue Sky Film Festival.

13. The report notes that there continues to be a lack of social and familial understanding of LGBT issues but that NGO’s have taken an active role in supporting families and helping individuals explain their sexual orientation to their families.

14. The report noted that there were still significant challenges in the areas of workplace discrimination, education, police attitudes to LGBT and social pressure to conform to traditional gender roles.

15. The LGBT Centre opened in 2009 has been instrumental in advocacy with UN bodies and which has led to the introduction of a new Criminal Code that effectively recognises crimes of discrimination. The law was originally planned to take effect in September 2016[7] but has been postponed to July 2017.[8]

    [7] Inside Mongolia’s only gay bar Lila Seidman 5 June 2016 Huffington Post

    [8] Amnesty International, Mongolia: Logistical Challenges Should not Delay Abolition of Death Penalty and Measures to Combat Torture, 13 September 2016, >

    In a media report published in May 2016[9] the director of the LGBT was asked about recent changes to the criminal code. 

    An anti-discrimination law was included in Mongolia’s most recent Criminal Code. What do you think about the final version of the law? What role did the LGBT Centre have in creating/shaping/passing the law?

    Sexual orientation and gender identity came in for the first time as protected grounds in the new Criminal Code. It’s the first instance of protection because you can no longer discriminate against people on the basis of who they are.

    It took us eight years to get passed, but we did it. And we did it especially thanks to the Centre’s international advocacy with UN treaty bodies, as well as the UN Human Rights Council. We got their recommendation for the government to outlaw hate crimes and hate speech, and they did it. Right now they’re termed [somewhat vaguely] as “crimes of discrimination” but when you look into the definition you will see that it’s actually hate crimes.

    The law will begin enforcement from September 1, and that’s when we will see how much the police are able to understand [the law]. In order to ensure that they do understand the law and apply it properly, we’re doing a training for the police on what hate crimes are, how to recognize them, the kind of assistance that hate crimes victims require.

    Mongolia doesn’t even know how far ahead it is in Asia thanks to our advocacy and knowledge, and thanks to the fact that we are articulating very well our needs. They don’t even know how their reputation has gone up internationally because this is the first-ever country in the region, in Asia, to have a hate crimes and a hate speech regulation in their criminal code. It’s brilliant.

    [9] LGBT Centre executive director N.Anaraa talks LGBT rights, then and now 18 May 2016

16. A Fulbright scholar recently reported on her work in the LGBT community in Mongolia[10]. She noted

    During my time as a Fulbright specialist in Mongolia, the LGBT Centre requested that I (a) help establish a crisis helpline, including developing internal policies and training volunteers; (b) develop a two-day, 16-hour training for practitioners on LGBT-affirmative work; and (c) meet with various faculty, educators and social workers throughout my visit to consult on research and other projects. We were successful in achieving these goals. We developed a training manual for helpline volunteers and provided culturally appropriate training in crisis response and counseling skills. I consulted at length with English-speaking Mongolian nationals to ensure that the training and materials were culturally relevant.

    ….The practitioner training was well attended. I was overwhelmed by the diverse attendees which included psychologists, professors, social workers, physicians, graduate and medical students, shelter workers and law enforcement personnel. The practitioner training addressed LGBT issues and mental health, violence within and toward the LGBT community, and LGBT advocacy and skills practice. These attendees also agreed that the most difficult part of the training was applying their professional skills to real-life situations they might encounter with LGBT clients. At the end of the workshop, participants were put into task groups to develop action steps they could apply in their work. They came up with ideas such as “adding more LGBT books to the university library,” “putting up posters” and “training my colleagues.” This experience was tremendously rewarding. I continue to communicate and collaborate with the contacts I made during my time in Mongolia. I hope to assist the LGBT Centre in their future goal of a nationwide survey of LGBT people across Mongolia.

    The active involvement and energy of Mongolian youth gives me a lot of hope about the future of LGBT people in Mongolia. As the economy continues to improve, and as Mongolia strengthens its ties with countries that promote human rights for LGBT people, I think we will also see a decline in some of the extremist views currently being propagated. Social media such as Facebook is very popular in Mongolia, and my hope is that these outlets will allow the youth of Mongolia to educate themselves about LGBT issues around the world and apply their knowledge in their home country. With the new resurgence of Buddhism, I am hopeful that Mongolians young and old will embrace greater tolerance and understanding.  

    [10] Working with the LGBT community in Mongolia March 2016 Psychology International

    Does the applicant meet the complementary protection criterion?

17. The Tribunal has considered whether on the evidence before it, that there would be a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Mongolia.

18. The applicant, his former companion [Ms B] and [Child 1] left Mongolia lawfully on their own passports in 2011.

19. As set out earlier in this decision the Tribunal does not accept that the applicant identifies as a homosexual or bisexual man or has adopted a homosexual or bi sexual lifestyle in Mongolia or in Australia. It does accept the evidence set out in his statutory declaration [in] September 2016 he has had occasional homosexual contacts in Australia following his attendance at the Departmental interview in 2014. However, it does not consider that these contacts indicate that the applicant has adopted a homosexual or bisexual orientation or will do so if he returns to Mongolia.

20. The Tribunal does not accept that if the applicant returns to Mongolia he will adopt an openly homosexual or bisexual lifestyle. In coming to this conclusion the Tribunal does not consider the applicant will modify his conduct in Mongolia to avoid harm; it considers that the applicant does not identify as a homosexual or bisexual man and this is the reason he will not adopt this lifestyle.

21. Even if the Tribunal were to consider, which it does not, that the applicant wished to adopt a bi sexual or homosexual lifestyle if he returned to Mongolia it considers that the country information does not support a conclusion that a person with his profile would face a real risk of suffering significant harm.

22. The country information indicates that homosexual or bisexual men have in the past faced significant discrimination, social disapproval and occasional violence from members of the community. In 2011 there was some information suggesting that ultra nationalist groups were targeting the LGBT community, however, there has no information suggesting that further attacks have taken place in recent years.

23. The country information indicates that the situation for the LGBT community has significantly improved in the past few years with recently introduced anti-discrimination laws making hate crimes illegal, greater community support for the LGBT community and a greater public dialogue on issues facing the LGBT community.  There are also many community groups which provide support, counselling and advocacy for the LGBT community.

24. Taking all of the above into account, the Tribunal does not accept that the applicant will face a risk that of being arbitrarily deprived of his life; or that the death penalty will be carried out on him; or he will be subjected to torture; to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.   

25. The Tribunal notes that some earlier statements provided to the Department in connection with the application refer to the applicant’s [medical condition] and the harm he might face if he returned due to possible stigmatisation in the Mongolian community and the inadequacy of medical treatment for [medical condition]. The applicant gave evidence at the hearing that he has been successfully treated for [medical condition] in Australia. His statutory declaration of December 2012 indicated that following treatment he was [awaiting] a further blood test to confirm those results. Given that no claims were made in his current application regarding his [medical condition] the Tribunal considers he is free of the disease and would not face a risk of significant harm for this reason if he returned to Mongolia.

1. The applicant also claimed that he is a Shamanist and his parents are Buddhists. He made no claim that he would face harm as a Shamanist if he returned and the country information indicates that Shamanism is widely practiced and accepted in Mongolia. The Tribunal does not consider he would face harm for this reason if he returned to Mongolia.

   Conclusion

2. For reasons set out above the Tribunal is not satisfied the applicant meets the 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).

3. 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

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

   Louise Nicholls
   Senior Member  27 January 2017

   
   

   ATTACHMENT A

   RELEVANT LAW

5. 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

6. 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).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

19. 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.