1504613 (Refugee)

[2017] AATA 673

1504613 (Refugee) [2017] AATA 673 (27 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504613

COUNTRY OF REFERENCE:                  Mongolia

MEMBER:James Silva

DATE:27 March 2017

PLACE OF DECISION:  Sydney

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

Statement made on 27 March 2017 at 12:22pm

CATCHWORDS

Refugee – Protection visa – Mongolia – Threats from ex-mother-in-law – Credibility issues

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R(1), 499

Migration Regulations 1994, Schedule 2

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 is a man in his early [age] from Ulaanbaatar, Mongolia. He claims to be a citizen of Mongolia.

2. The applicant arrived in Australia [in] December 2013, as the holder of a [temporary] visa. He applied for a Protection (Class XA) visa [in] August 2014, together with his ex-wife and the couple’s [child].  He attended an interview with the delegate of the Minister for Immigration [in] January 2015.

3. [In] March 2015, the delegate refused the application (in respect of the applicant, his ex-wife and their [child]) pursuant to s.65 of the Migration Act 1958 (the Act).

4. This is an application for review of that decision.

5. The applicant appeared before the Tribunal on 31 January 2017 and 13 February 2017, to give evidence and present arguments.

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

   CRITERIA FOR A PROTECTION VISA

7. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. The relevant law is in Attachment A.

   CLAIMS AND EVIDENCE

   Summary of Claims

8. The applicant initially claimed to fear persecution or significant harm from his ex-wife’s parents, but has since clarified that he fears his ex-wife’s [mother]. He claims that she opposed his marriage to his ex-wife, and now wants to exclude him from his [child]’s life, by obtaining guardianship and sole custody. The applicant claims that he will fight her efforts to do this. He claims that his (ex-) mother-in-law will kill or seriously harm him if he opposes her, as she is a wealthy and powerful businesswoman with connections. She has also threatened and harassed his parents in Mongolia.

9. The applicant claims that the Mongolian police and law enforcement agencies and under-resourced and corrupt, and will not provide protection.

   Background

10. The applicant is a [age] year old man from Ulaanbaatar. He is an ethnic Mongolian, and speaks Mongolian (and some English).

11. The applicant claims to have lived in the capital most of his life, before coming to Australia. He attended school, and later a [college], until June [year]. He then worked as [occupation], and later [occupation], for [certain] companies. These companies are based in the capital. In practice, he worked in [a] Province, about [number] minutes’ flight from the capital, on a [roster].

12. The applicant married [his ex-wife] (‘Ms D’ in this decision, for ease of reference) in 2008 or 2009, and they have a [child] born on [date].

13. The protection visa application included Ms D and the [child], as members of the applicant’s family unit who do not have protection claims of their own. The application for review was made by all three applicants. On 23 January 2017, the Tribunal received advice from Ms D that she and the applicant separated in November 2014 and were divorced in September/October 2016. She lodged separate applications for review for herself and her [child], who lives with her full-time, and appointed a separate migration agent to act as their representative and migration agent. Ms D also advised that she wished to advance her own claims for protection.

14. At the Tribunal hearing, the applicant confirmed his knowledge of these arrangements, and his agreement for the inclusion of the couple’s [child] in Ms D’s separate application for review.

15. The applicant claims that, in Australia, the family lived in an address in [Suburb 1], where Ms D and their [child] remain. According to the applicant, the couple separated during 2014 (after the lodgement of the protection visa application). He told the Tribunal that he has lived with relatives in [another suburb] for about one year (hence, from early 2016). The applicant claims that in early 2016, his ex-wife pressured him to sign some documents authorising the commencement of divorce proceedings. However, he only learned in late January 2017 (just a week before the Tribunal hearing) that the divorce had actually been finalised in September/October 2016. He claims not to have seen any documents relating to the divorce itself.

16. The applicant holds a Mongolian passport issued [in] 2013. He entered Australia [in] December 2013, on a [temporary] visa that was valid until [March] 2013. [In] March 2013, he obtained an extension to the [temporary] visa until [August] 2014. As noted above, the applicant and his family members applied for Protection visas the day before the expiry of his [temporary] visa. 

17. The family’s movements form a critical part of the applicant’s claims They are, in summary:

    §  Ms D arrived in Australia [in] July 2013, as the holder of a [temporary] visa.

    §  The applicant travelled to Australia in November 2013 on a [temporary] visa, valid for three months. He arrived together with the couple’s [child], who also held a [temporary] visa of the same duration.

    §  The applicant’s [ex-mother-in-law] (his claimed persecutor) arrived in Australia in early 2014. She stayed with the applicant and his family in [Suburb 1].

    §  [In] April 2014, the [child] left Australia together with [the ex-mother-in-law], travelling to Mongolia.

    §  [In] July 2014, Ms D left Australia and travelled to Mongolia.

    §  [In] August 2014, Ms D and the [child] returned to Australia.

    §  As noted above, [in] August 2014, all members of the family applied for Protection visas.

18. The applicant provided his parents’ names in the protection visa application, but did not give details of his siblings. The completed form identifies one person in Australia as his [sibling], but it emerged at the Tribunal hearing that this person was Ms D’s [sibling]. At the hearing, the applicant said that he has been living in [another suburb] with his [sibling], [name]. At the second session, he added that [another sibling] [name] now lives there too. The applicant mentioned at hearing that he has other, more distant relatives in [Australia].

19. The applicant has at least one other sibling, [Sibling 1] named [name] who acted with his power of attorney during the divorce proceedings in Mongolia.

20. The applicant was initially represented in relation to this review by [a] registered migration agent. The applicant cancelled [this representative]’s appointment as authorised recipient and representative on 31 January 2017.   

    Evidence

21. The material before the Tribunal includes the following:

    §The applicant’s protection visa application form lodged [in] August 2014, attached to which are his personal details and a photocopy of his current Mongolian passport. The application included Ms D and their [child], as members of the applicant’s family unit who do not have their own claims for protection, and photocopies of their passports.

    §The applicant’s statement of claims.

    §The Department file include case notes relating to the applicant’s and his [child]’s applications for [temporary] visas.

    §The applicant attended a Department interview [in] January 2015, a recording of which is on the Department file.

    §Supporting documents submitted to the Department: -

    -Copy of the applicant’s marriage certificate, in Mongolian with English translation

    §The Protection Visa Decision Record (delegate’s decision) of [March] 2015, which is the subject of this review.

    §The application for review, which has attached to it a copy of the delegate’s decision.

    §A Tribunal note recording a telephone conversation on 30 January 2017 in which the applicant’s representative stated that he no longer wished to act for the applicant.

    §Supporting documents submitted to the Tribunal: -

    -Medical documents: A discharge referral note from [a] Hospital, dated [January] 2017, indicating that the applicant presented with [symptoms] the previous day, and was admitted overnight for tests and monitoring

    -Family-related documents: (a) account statements from [Suburb 1] OSHC[1] Centre, from February and August 2015, addressed to Ms D at her address in [Suburb 1]; (b) two photographs showing the applicant and Ms D (one also with their [child]); and (c) a handwritten text in Mongolian, dated [February] 2016, which the applicant claimed Ms D wrote and asked him to sign, in order to initiate divorce proceedings.

    [1] Out of School Hours Care

22. The applicant appeared before the Tribunal on a hearing over two sessions, on 31 January 2017 and 13 February 2017, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.

23. The applicant was represented by [his representative] up to 31 January 2017. On 30 January 2017, the representative telephoned the Tribunal to state that the applicant had been withholding information from him, to the extent that he (the representative) considers he had been lying. At hearing on 31 January 2017, the applicant stated that he was dissatisfied with the service he had received. The Tribunal gave the applicant the gist of [the representative]’s oral advice to the Tribunal, for the sake of transparency. It explained that it had no further insight into [the representative]’s comments (ie. why he thought that the applicant had not been honest). As such, the Tribunal did not consider them relevant to its assessment of his protection claims.

    Country of reference

24. The applicant claims to be a Mongolian national, and provided a photocopy of his Mongolian passport. He speaks Mongolian and is familiar with that country. The Tribunal is satisfied that Mongolia is the country of reference for the purpose of assessing the applicant’s claims to be a refugee, and that it is the receiving country for the purpose of assessing his eligibility for complementary protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility

25. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

26. At the hearing, the applicant claimed that he was very stressed by news he had received the previous week that the divorce from Ms D had been finalised in October 2016. He presented medical evidence that he had been admitted overnight to [a] Hospital the previous weekend for monitoring and tests, after reporting [symptoms]. The discharge referral note states that the applicant had reported [symptoms], and had been feeling unwell, following a reported [episode] some two months earlier. The Junior Medical Officer recorded no abnormal findings, and the applicant was released the next day. He was advised to consult his GP [again].

27. The applicant emphasised that he felt stressed and depressed, as he fears losing his [child]. He described [symptoms] when he thinks of the prospect of them being separated. The Tribunal accepts, on the limited evidence before it, that the applicant is close to his [child], and anxious about the prospect that he might be restricted from accessing [his child] some time in the future (whether in Australia or Mongolia). The applicant has not claimed, and there is nothing to suggest that any such anxiety impaired his ability to give evidence at the hearing.    

28. The Tribunal has significant concerns about the applicant’s credibility. It found his evidence often vague, unforthcoming and changeable. On broad aspects of his protection claims, as well as specific issues relating to his personal and family circumstances, the Tribunal found it difficult to elicit clear, complete and consistent statements. As a result, discussion at the hearing was laboured, and it sometimes became necessary to revisit issues after new information had come to light. In other instances, the Tribunal found the applicant’s evidence to be exaggerated or misconstrued, to the point that it formed the view he was being misleading.

29. Several examples illustrate the Tribunal’s concerns.

    §  The statement attached to the protection visa application indicates that he fears Ms D’s parents, whereas at the second hearing session he clarified that it is only his (ex)-mother-in-law. After the Tribunal indicated its surprise at this correction, the applicant then went on to comment that she is a wealthy and influential businesswoman. However, he was unable to provide insight into her business interests or connections.

    §  At the first hearing session, the applicant said that he was in shock at having just learned the previous week that Ms D had divorced him. He said that on the preceding weekend he had suffered a [medical condition] and been hospitalised for two days.

    -   Only after further discussion (at the second hearing session) did it emerge that the divorce proceedings had commenced in early 2016; that the applicant was indeed aware of them; and that he had authorised his [Sibling 1] in Mongolia to act on his behalf before the court. The applicant gave the Tribunal a copy of a handwritten note from Ms D, dated [February] 2016, which he said was the script that she wanted him to copy by hand, and sign, in order to initiate the divorce proceedings. The applicant initially said that he did not sign that paper. Pressed as to whether he did or did not sign (any) papers, he eventually said that Ms D ‘made him’ sign some documents, which he then handed to her.

    -   The Tribunal noted that the divorce had been granted in September/October 2016, and questioned the applicant’s claimed shock about learning this only in January 2017. It explored why, for instance, his [Sibling 1] had not kept him informed of the proceedings, and given him copies of the papers. It also asked why the applicant had not made it his business to find out what happened (given that it potentially addressed the question of access to his [child]). And it noted that the applicant was living in [Australia] with [siblings], who might also have been in a position to pass on news from their [Sibling 1]. The applicant struggled to provide a persuasive explanation. He said that he is not so close to his [Sibling 1]. He believed his [Sibling 1] avoided telling him about the divorce, in order to protect the applicant from potential harm from [the ex-mother-in-law]. The Tribunal was unable to gain further insight into how the applicant’s knowledge of the divorce would put him at risk of harm from [the ex-mother-in-law. It formed the impression that the applicant was improvising – in trying to reconcile his claim that he had been shocked in learning about the divorce only in January 2017, with the mounting evidence that he had both the motive and means to remain informed about it.   

    -   In relation to the applicant’s medical treatment in late January 2017, the Tribunal notes that the discharge referral note makes no mention of the applicant having reported psychological problems, or a reaction to a significant event (such as news of his divorce), or a [medical condition] (although the hospital evidently considered it prudent to keep him in overnight for observation after he complained of [symptoms]).

    §  As discussed below, it was also difficult to obtain clear advice from the applicant, for instance about his activities since breaking up with Ms D, and what family members are in Australia.

30. The applicant’s protection claims arise from his family circumstances, which the Tribunal assesses in more detail below. The Tribunal accepts that there is a core of truth to these. However, it has broad concerns about the reliability of his claims and evidence, and in particular, his propensity to exaggerate and misconstrue.

    Family situation

31. The Tribunal accepts on the available evidence that the applicant married Ms D in 2008 or 2009; that they had a [child] who accompanied them to Australia; that the couple separated at some point (probably late 2014) after lodging their protection visa application in August 2014; that Ms D initiated divorce proceedings in February 2016, and that the divorce in Mongolia was finalised in September/October 2016.

32. The Tribunal makes these findings with some reservations. It found several aspects of the applicant’s evidence about the couple’s relationship, the claimed divorce and their overall circumstances wanting. As noted above, the applicant’s evasive, changeable evidence made it difficult to resolve its concerns. For instance: -

    §  The Tribunal received conflicting evidence about the applicant’s relationship with Ms D.

    -   In his statement of claims, the applicant wrote: ‘I met my [wife] in 2008, when we were both [age] years old. We fell in love and stated to spend time together.’ He goes on to state that the couple decided to marry at the beginning of 2009.

    -   The applicant submitted a marriage certificate, issued [in] September 2009, stating that the couple married [in] January 2006 and registered the marriage in September 2009.

    -   At the hearing, the applicant said that he was surprised when he saw this date on the marriage certificate, and had discussed it at the Department interview. He added that Ms D had taken all their documents to her [mother], and he did not look at them. The Tribunal expressed its surprise that the couple did not keep their own documents. In response to further questions, the applicant said that the couple did not have any wedding ceremony; it was easy to obtain a marriage certificate at the registry.

    -   Following the hearing, the applicant submitted a number of documents concerning the relationship and their child.

    §  Similarly, the Tribunal found it difficult to obtain firm advice on when the applicant and Ms D split up; what the current childcare and financial arrangements are; and which persons (such as the [child]’s school) have been notified.

    §  Similarly, the applicant did not notify either the Department or the Tribunal of his change in circumstances.

    §  The Tribunal notes that other information – such as the presence of other family members in Australia – trickled out only during the course of the discussion, rather than in direct response to the Tribunal’s questions.

    §  The Tribunal has particular difficulty reconciling the applicant’s claimed shock at learning about the couple’s divorce only in late January 2017, with his later evidence that: - (a) he had authorised proceedings to start earlier in 2016, by signing documents that Ms D had sent him by email and which he had reluctantly filled out; and (b) his [Sibling 1] had been representing him in court in Mongolia. At the hearing, the applicant said that he had not made any enquiries, through his [Sibling 1], lawyers or the courts, to find out about the progress of the divorce proceedings.

    §  The Tribunal also queried the applicant about the custody arrangements for his [child], and whether these had been discussed or settled during the divorce. He again said that Ms D has the documents, and he is not aware of arrangements. He said that he currently sees his [child] regularly.

    §  Against this background, the applicant’s comment that he hoped Ms D and he could eventually reconcile, added to the Tribunal’s disquiet about the genuineness of the purported separation and divorce, and therefore the need for caution in assessing this case.  

1. The Tribunal finds that the applicant was aware of the divorce proceedings, as he signed court papers and authorised his [Sibling 1] to act on his behalf in early 2016. The divorce was finalised in September/October 2016; the Tribunal does not accept that the applicant first learned about it in January 2017 and that this surprised or shocked him, given that his [Sibling 1] was acting on his behalf in the court. The applicant claimed to be aggrieved that he has not received a copy of the court order or other divorce papers, yet he showed little interest in contacting his [Sibling 1] or other relatives to obtain copies of these documents, or to find out the details of the court order (such as custody of or access to his [child]), The Tribunal does not accept that there is any obstacle to the applicant making such enquiries, or to his [Sibling 1] (or others) briefing him. In its view, the applicant has portrayed the divorce proceedings as unfair, in order to bolster his protection claims.

   Events in Mongolia

2. The applicant initially wrote that his (ex-) in-laws were pursuing him. At the hearing, he clarified that he was referring only to [his] (ex-) mother-in-law. He commented that her husband was not really involved in this matter.

   §  According to his original statement, the parents-in-law opposed the applicant’s marriage to their daughter, as they had already arranged for her to marry another man.

   §  His family had tried to pacify them, without success. Ms D fell pregnant early in their relationship, and her parents pressured her to have an abortion, which she did. During this time, the applicant and Ms D lived with his parents. The in-laws made menacing telephone calls and visited the home, threatening to kill the applicant and his parents.

   §  After the birth of the applicant’s [child], the in-laws accepted the [grandchild], and the couple gave them access to [the child]. But they were steadfast in their opposition to the relationship.

   §  They also targeted the applicant’s parents, making menacing telephone calls and visiting their home, threatening to kill the applicant and his parents.

3. At the hearing, the applicant said that [his ex-mother-in-law] had wanted Ms D to marry a wealthier man, whom he believes has now gone to [another country]. Asked for details of any harm or threats that she had directed towards him in Mongolia, the applicant said that her bodyguards had bullied and pushed him around, when he tried to go to their house to see his [child].

4. Asked to expand on his claim that [his ex-mother-in-law] and/or his (ex-) in-laws had threatened his parents, the applicant said that his parents once gave their [grandchild] some traditional Mongolian clothes, but his (ex-) in-laws tore them up and returned them. As for his written claims of death threats, the applicant said that they used to come to his parents’ home, trying to take Ms D and the [grandchild] away, and causing him stress. His parents now face that hardship (he appeared to be referring to relentless pressure from [his ex-mother-in-law]).

5. The applicant said that Ms D’s parents sent her to [Australia]. He believes that their intention was to split up the couple, ‘it was very obvious’. The Tribunal queried why – if Ms D’s parents were intent on separating the couple – they allowed him to take the [child] and travel to Australia. The applicant said that they hand over his [child] to him, not realising that he was planning to take him to Australia. As for the [child]’s passport, the applicant said that Ms D and he had secretly made arrangements for his travel prior to her departure for Australia. The Tribunal pointed out that the [child]’s passport (a copy of which was attached to the protection visa application) was issued [in] 2013, well after Ms D’s departure for Australia. During a somewhat confused exchange, the applicant appeared to say that Ms D had helped make arrangements for her [child] to obtain passport, and that he proceeded with the application after she left Mongolia. He said that his (ex-) in-laws were not involved in that.[2]

   [2] The applicant appeared to state, through the interpreter, that Ms D helped him get the passport, and after that he ‘extended’ it. The Tribunal understands this to mean that Ms D signed the necessary authorisation while she was in Mongolia; that the applicant made the application for the passport; and that he was able to do so without the knowledge or involvement of his (ex-) in-laws. 

6. At the hearing, the Tribunal queried why – if [his ex-mother-in-law] was powerful and influential, and had threatened him, Ms D and the applicant’s parents – they allowed her to stay with them in their [Australian] home. It noted his earlier evidence that at that time, Ms D had a [sibling] living in [Australia]. The Tribunal reminded the applicant that he was in effect seeking Australia’s protection on the basis of [his ex-mother-in-law]’s threats to persecute or significantly harm him if he returns to Mongolia. The applicant replied that he respected that [his ex-mother-in-law] was Ms D’s mother; that she was a different person in Australia (considerate, and not threatening); and that he was not afraid of her here.

7. The Tribunal has significant concerns about the truthfulness of the applicant’s claims about the harm and threats from [his ex-mother-in-law] (or others linked with her):

   §  There are inconsistencies between the applicant’s written statements and his oral evidence, in terms of the source of the threats to himself and others (ie. whether it is his (ex-) parents-in-law, or just [his ex-mother-in-law], and/or (as stated at hearing) bodyguards and others acting on her behalf.

   §  He initially claimed that [his ex-mother-in-law] (and perhaps others) made death threats to him and his parents, and harassed them. There were no specific claims of actual physical harm, although the applicant added at the Tribunal hearing that her bodyguards had pushed him around and prevented him from gaining access to his [child]. And the applicant was uncertain evidence when the Tribunal pressed for details about the threats to him and his parents. All of this suggests that the applicant’s claims are at least exaggerated.

   §  The Tribunal finds nothing in the applicant’s account of his conduct or his interactions with [his ex-mother-in-law], in Mongolia or Australia, to support his claims. It does not make sense that she agreed to Ms D’s [travel] abroad, as a means of promoting a split between her and the applicant. Similarly, [his ex-mother-in-law]’s apparent willingness to allow the applicant access to his [child] – for visits, and also on the occasion when he travelled with the [child] to Australia – does not sit well with the applicant’s claims that she was intent on breaking up his relationship with Ms D, and threatened to kill him.

   §  Finally, the Tribunal has problems with the applicant’s contention that he and Ms D allowed [his ex-mother-in-law] to stay in their home, even though she is his alleged persecutor. If, as claimed, she is powerful and dangerous, it is hard to imagine why the applicant risked giving her direct access to him and their [child]. The Tribunal finds unpersuasive the applicant’s claim that she was a ‘different person’ in Australia. It is not satisfied that the applicant would have been able to judge her sincerity or predictability before inviting her into his home. In its view, the applicant’s readiness to accept such risks in Australia – but allegedly not in Mongolia – significantly undermines his protection claims as a whole.      

8. In light of these concerns, and given the Tribunal’s overall concerns about the applicant’s credibility, it does not accept that [his ex-mother-in-law], acting alone or with her current husband, or any agents of [his ex-mother-in-law] (such as her ‘bodyguards’), inflicted serious or significant harm on the applicant, or threatened to kill him, or threatened Ms D or the applicant’s family, in Mongolia. The Tribunal accepts that Ms D’s family may have disapproved of the relationship to some extent, but it rejects all the applicant’s claims that he (or Ms D, or his parents) was subject to harm or threats that went beyond some degree of mere disapproval.

   Events in Australia

9. As noted above, the applicant and his [child] travelled to Australia to join Ms D in November 2013. In the first half of 2014, the applicant’s mother-in-law came to stay with them, and looked after the [grandchild].

10. The applicant claimed the following: -

    §  One day in July 2014, [his ex-mother-in-law] disappeared with the [child].

    §  The following day, [his ex-mother-in-law]’s husband (the applicant’s ex-father-in-law) telephoned from Mongolia to tell the applicant and Ms D that they would never see their [child] again. The applicant and Ms D discovered that [his ex-mother-in-law] had taken their [child] back to Mongolia, without their knowledge.

    §  Ms D returned to Mongolia in late 2014. She learned that her parents intended to keep the child, and obtain a court guardianship order. They threatened to kill the applicant if he returns to Mongolia and tried to fight for custody or access.

    §  Ms D ‘managed’ to return to Australia with the couple’s [child].

    §  After this, the applicant received calls from his (ex-) in-laws in Mongolia threatening to come to Australia and kill him. They remain angry about the marriage.

11. As noted above, the applicant advised at the hearing that he fears only [his ex-mother-in-law]. He said that she and her husband are wealthy business people, ‘bosses’. He commented that money buys influence in Mongolia. The applicant did not have further details of their backgrounds or business interests.

12. The Tribunal has difficulty believing that the applicant would allow [his ex-mother-in-law] – his alleged persecutor – to visit and stay with the family in [Australia] if, as claimed, she opposed their relationship and had threatened to kill (or arranged for others to threaten) him and his parents. As discussed at the hearing, this is particularly so if, as the applicant indicated, Ms D had a [sibling] living in [Australia] at the time, as well as [relatives]. The applicant replied that he acceded to his wife’s wish that her mother come to Australia to help her and, in any event, Ms D’s mother was a very different person.

13. The Tribunal also has significant concerns about the applicant’s claim that [his ex-mother-in-law] in effect abducted his [child] to Mongolia, by taking [the child] on a flight to Mongolia without his authorisation or knowledge.

    §  The applicant claimed that he was not at home the night before [his ex-mother-in-law] took his [child] to the airport. He explained that he sometimes went to ‘relatives’ in [Australia], where he played games and stayed overnight. The Tribunal is unimpressed that the applicant, rather than recall the exact circumstances of that night and the following morning, referred generically to visiting relatives.

    §  The applicant said that he did not know of or authorise [his ex-mother-in-law] to travel with their [child]; he does not know how she managed to achieve this. The applicant confirmed that he first learned about his [child]’s whereabouts – namely that he was in Mongolia – the next day, when Ms D’s stepfather called. At hearing, he said that, on that day, he took at face value Ms D’s assurance later that her mother had taken the [child] out for the day, and would return later.

    -   [His ex-mother-in-law] and the applicant’s [child] returned to Mongolia in April 2013, some three months before Ms D joined them, and well before the applicant and Ms D split up. The applicant had ample opportunity to discuss with Ms D what actually transpired on that day, and to clarify the assurances that she had given him when [his ex-mother-in-law] and the couple’s [child] did not return. There was no sense of the applicant having had such a discussion. The Tribunal formed the impression that the applicant had not turned his mind to this aspect of his claims. This adds to the Tribunal’s doubts about the truthfulness of the applicant’s account.

    §  The Tribunal noted the applicant’s evidence that his [child] did not return home that day, and that the applicant did not learn his whereabouts until the next day. It queried whether he contacted the police to report his [child] (and potentially Ms D’s mother) missing. The applicant replied that his wife did not want to get the police involved, as it was her mother. Even at face value, this suggests that Ms D knew – or at least intimated to the applicant – that it was not true that her mother had gone missing with their [child]. Overall, the Tribunal finds unconvincing the applicant’s suggestion that [his ex-mother-in-law] – who had been trying to break the couple up, and deny him access to their [child] – had disappeared, and yet he did not take any steps to find out what had happened, until he received a call one day later from [his ex-mother-in-law]’s husband.

    §  More significantly, however, the Tribunal formed the impression that the applicant did not wish to engage in a full discussion of what happened during that day, and that he was not being frank in his claims.

14. The applicant’s account of the couple’s response to his [child]’s ‘abduction’ to Mongolia reinforces the Tribunal’s doubts. The applicant’s wife waited some three months before returning to Mongolia to see their [child]. The applicant said that he was unable to travel there because he did not have permission to re-enter Australia, so he could not ‘save’ his [child] and bring him back here. Ms D did not return earlier, because she felt more comfortable that her mother would take care of him, and she was [busy]. The applicant’s statements reveal that his priority was to stay in Australia. This casts doubt over his claim that his [child] was ‘abducted’, and that he needed to be ‘saved’. The applicant’s inaction and Ms D’s delayed return to Mongolia lead the Tribunal to conclude that [his ex-mother-in-law] took the [child] to Mongolia with the couple’s prior knowledge and approval, and that he was not ‘abducted’.

15. Again, the applicant’s account of his wife’s travel to Mongolia, and her ability to return with the couple’s [child], does not sit well with his main claim that [his ex-mother-in-law] was determined to deny the applicant access to his [child]. The applicant said that Ms D stayed with her mother and stepfather, but she had already arranged with him a plan for the [child]’s return. The Tribunal noted that Ms D’s mother could easily have thwarted any further travel plans – for instance, by holding on to the boy’s passport. The applicant’s vague references to the couple having ‘managed’ to secure his travel were, in the Tribunal’s view, unpersuasive. The Tribunal finds that Ms D returned to Australia with the [child] was pursuant to a prior arrangement, and not part of any secret plan to ‘rescue’ the [child] from [his ex-mother-in-law].

16. Given the above concerns, and again having regard to the Tribunal’s adverse view of the applicant’s credibility as a whole, the Tribunal rejects the applicant’s account of [his ex-mother-in-law] having harmed him (psychologically or otherwise), through in effect kidnapping his [child]. The Tribunal finds that the applicant travelled with his [child] on [temporary] visas to visit Ms D; Ms D’s mother visited in order to assist with childcare and home duties; that she returned with the [child] with the couple’s agreement, in order to assist them; and that Ms D visited Mongolia and brought back the [child] in order to have all three family members in Australia when lodging their protection visa application, for permanent residency.   

    Ongoing fears and concerns

17. The applicant claims that he cannot return to Mongolia. He insists that he will fight for access to his [child]. This will prompt his (ex-) in-laws, namely [his ex-mother-in-law], to target him. He claims that the Mongolian authorities are under-resourced and corrupt, and unable to protect anyone.

18. The Tribunal accepts that the applicant has some concerns about his family circumstances if he returns to Mongolia, including his access to his [child]. However, the Tribunal finds that the applicant has exaggerated these concerns. First, the Tribunal is of the view that, if it were true that [his ex-mother-in-law] and Ms D’s other relatives orchestrated the divorce and pressured the applicant’s family to accelerate the proceedings, the applicant would have an urgent interest in checking what the court order had to say about custody of and his access to his [child]. Second, the applicant’s conduct vis-à-vis [his ex-mother-in-law] – allowing her to stay in the family home (without securing his [child]’s passport or travel items), failing to report her alleged ‘abduction’ of their [child] to the police or others, and then failing to return to Mongolia to try to resolve the custody issue – significantly undermines his claim that she is powerful, influential and can in effect ignore the court order to achieve her goals.

    Summary of findings

19. The Tribunal accepts that the applicant and Ms D were married, and have now divorced. It accepts that Ms D’s family may have disapproved of the relationship and marriage, in Mongolia, at least to some extent. However, it does not accept that this disapproval went further. It does not accept that [his ex-mother-in-law] (or other family members, or any employees or agents) targeted the applicant and/or Ms D, or the applicant’s parents, including with threatening telephone calls, harassment, acts of humiliation or death threats, either in Mongolia or after the applicant’s departure in December 2013. It does not accept that when [his ex-mother-in-law] visited Australia in April 2014, she took the applicant’s [child] back to Mongolia without his knowledge or approval; or that the applicant genuinely wanted to ‘save’ his [child] but was afraid of returning to Mongolia or confronting [his ex-mother-in-law] for fear of not being able to return to safety in Australia. The Tribunal dismisses all related claims.

20. The Tribunal accepts that the applicant is experiencing some stress, which may be attributable in part to his uncertain migration status, and to some uncertainty about his future access to his [child], following the divorce.

21. The Tribunal accepts that the applicant would prefer to stay in Australia and have some contact with his [child], through Ms D - rather than returning to Mongolia, arranging accommodation and work for himself, and then settling child access and maintenance matters for his [child]. However, the Tribunal does not accept that the applicant genuinely fears persecution or significant harm from [his ex-mother-in-law] (or others), or that he fears that [his ex-mother-in-law] will completely deny him access or visiting rights with his [child], whether through legal or extra-legal means.

    Assessment – Refugee Criterion

22. The Tribunal now assesses whether, on the basis of the findings of fact above and the applicant’s future conduct[3], he has a well-founded fear of Convention-related persecution on his return to Mongolia, now or in the reasonable foreseeable future.

    [3] In light of the above findings of fact, the Tribunal has not drawn on country information

23. Based on its assessment and findings above, the Tribunal does not accept that the applicant genuinely fears serious harm amounting to persecution from [his ex-mother-in-law], or any persons associated with her. Also, while it accepts that the applicant may need to make arrangements for work and accommodation on his return to Mongolia; that Ms D’s family may continue to disapprove of his marriage to Ms D (even after the divorce); and that he will need to sort out the practicalities of access to his [child], it does not accept that any of these circumstances give rise to a real chance of the applicant suffering serious harm amounting to persecution.

24. The applicant’s account of [his ex-mother-in-law]’s involvement with him and his family reinforces the Tribunal’s confidence that she poses no threat to him. After all, she took care of the [child] in Mongolia after Ms D first travelled to Australia, she was allowed to stay with the applicant’s family in Australia for several months, and she returned to Mongolia with the [child] (with the applicant’s knowledge). The applicant’s comment at hearing that he would be comfortable having his (ex-) parents-in-law visit in Australia, as they ‘will not be able to take [the [child]]’ is not only inconsistent with his claim that [his ex-mother-in-law] did indeed abduct him in August 2014 (which the Tribunal has rejected). It also illustrates that he has no subjective fear of her. The Tribunal rejects the applicant’s suggestion that [his ex-mother-in-law] can exert influence and act with impunity in Mongolia, yet poses no threat in Australia (of even lesser harm), as contrived and convenient. The Tribunal finds there is no real chance of the applicant suffering serious harm amounting to persecution due to any enmity that [his ex-mother-in-law] or others have because of the relationship with Ms D, or the couple’s subsequent divorce.

1. The Tribunal also finds that there is no real chance of the applicant suffering serious harm amounting to persecution as a result of any future custody/access arrangements with his [child] – that is, psychological or other harm arising from [his ex-mother-in-law] or others preventing him from seeing his [child]. This arises in part from the Tribunal’s analysis of the applicant’s past dealings with [his ex-mother-in-law], and his willingness to have her visit the family if they remain in Australia (see immediately above). It also reflects the Tribunal’s view that the applicant’s evidence on this matter is unreliable, and that his claims lack credibility.

2. Having find that there is no real chance of the applicant suffering serious harm amounting to persecution if he returns to Mongolia, it is unnecessary for the Tribunal to further assess whether there is a Convention nexus to such claims, or whether State protection is available (or whether it would be denied for Convention reasons).

3. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if he returns to Mongolia. He therefore does not satisfy the criterion in s.36(2)(a).

   Assessment – Complementary Protection

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

5. The Tribunal has found that the applicant may have to find accommodation and work on his return to Mongolia (although he appears to have expert qualifications and experience in [a certain] sector); that he may face some ongoing low-level disapproval from Ms D’s family (even though the couple have now divorced); and that he may need to clarify and negotiate practical arrangements for access to his [child]. The Tribunal has rejected above all the applicant’s claims about past harm from [his ex-mother-in-law], including death threats against him (and his parents).

6. Looking ahead to the reasonably foreseeable future, the Tribunal is not satisfied that that there are substantial grounds for believing that the applicant will face a real risk of being arbitrarily deprived of his life, that the death penalty would be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment, if he returns to Mongolia.

7. 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: s.36(2)(aa).

   Conclusion

8. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

9. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

10. 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

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

    James Silva
    Member

    
    

    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).

    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.

    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.

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

    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.

    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.

    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.

    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.

    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.

    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

    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’).

    ‘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.

    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

    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.