1510527 (Refugee)

[2018] AATA 3171

1510527 (Refugee) [2018] AATA 3171 (1 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510527

COUNTRY OF REFERENCE:                  Mongolia

MEMBER:David McCulloch

DATE:1 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 01 August 2018 at 8:20am

CATCHWORDS
Refugee – Protection visa – Mongolia – Particular social group – Employee of company involved in car accident – Fear of harm instigated by family of victims – Victims of threats and physical attacks – Fear of retribution or compensation – Credibility concerns – Inconsistent information – Environmental concerns – Defective education system – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), r 1.12, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Yao-Jing Li v MIMA (1997) 74 FCR 275
Prasad v MIEA (1985) 6 FCR 155
Luu v Renevier (1989) 91 ALR 39
Randhawa v MILGEA (1994) 52 FCR 437
Abebe v Commonwealth (1999) 197 CLR 510

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Mongolia, applied for the visas on 14 October 2014 and the delegate refused to grant the visas on 6 July 2015.

3. The applicants were invited to attend the hearing of the Tribunal on 13 July 2018. They did not send back the form that was requested by the Tribunal indicating whether they would be attending the hearing. The day before the scheduled hearing, the registered migration agent of the applicants made a request of the Tribunal that the hearing be adjourned. This was on the basis of the first named applicant (the applicant) needing to see a specialist doctor on the day of the hearing. Instructions were that the applicant is currently undergoing medical treatment for an allergy. A request was made that the hearing be adjourned for three months until the applicant was fit and ready to attend a hearing. The Tribunal considered, and declined, this request on the basis that no medical reports had been provided indicating the inability of the applicant to give evidence to the Tribunal. The applicants were advised in writing that the hearing would proceed as scheduled.

4. The applicants appeared before the Tribunal on 13 July 2018 at 9:30am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.

5. The applicants were represented in relation to the review by their registered migration agent, who did not attend the hearing.

6. At the beginning of the hearing, the Tribunal asked the applicant and the second named applicant if there were any impediments to their giving evidence to the Tribunal. Both answered that there were not. The Tribunal notes that the applicant made no mention of any medical condition including an allergy that would affect her ability to give evidence to the Tribunal. Based on the manner in which the applicant gave evidence in the hearing, the Tribunal considers that the applicant understood and was able to respond to the questions posed by the Tribunal and to advance her claims in a meaningful manner unconstrained by any obvious impairment.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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).

9. 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.

10. 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’).

11. Section 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse and dependent children.

12. For the purpose of this decision, the Tribunal accepts that the second named applicant is the husband of the applicant and the third named applicant is the dependent child of the applicant and that they are therefore members of the same family unit.

13. In accordance with Ministerial Direction No. 56, made under s.499 of the Act, the Tribunal is required to take account of 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.

14. The issue in this case is the credibility of the applicant and the second named applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background and claims

15. The second named applicant, who is the husband of the applicant, arrived in Australia on 15 October 2013 on a [temporary] visa which had been granted on 30 September 2013. That visa was subsequently reissued on 15 January 2014 and 15 May 2014. The applicant arrived in Australia on 19 August 2014 on [another temporary] visa which had been granted on 17 July 2014. The applicant provided the following details in the application form for her protection visa. The applicant was born [in date] in Ulaanbaatar, Mongolia. The applicant reads, writes and speaks English and reads and writes Russian. The applicant was married [in] 2008 in Ulaanbaatar. The applicant travelled on visits to [Country 1] in 2007, to [Country 2] in 2010, and to [Country 3] in 2010 and 2012. The applicant has [number of] years of education, finishing secondary school in [year]. From [year] until [year] the applicant attended [a] [University]. From 2010 until 2012 the applicant worked as [an occupation] at one [location]. The applicant worked at another [location] from August 2012 until August 2014.

16. The second named applicant provided the following details in the application form for his protection visa. He was born [in date] in Ulaanbaatar, Mongolia. He speaks, reads and writes English. The second named applicant was married [in] 2008 in Ulaanbaatar. The applicant travelled on a tour to [Country 1] in 2006 and on business visits in May 2011 and February and August 2013. The second named applicant travelled as a visitor to [Country 3] in 2010 and 2012. The second named applicant travelled on a tour to [Country 2] in 2010.

17. The second named applicant has [number of] years of education, finishing secondary school in [year], and from [year] until [year] attended [an] Institute. The second named applicant obtained a ‘[Qualification]’. The second named applicant worked from May 2008 until November 2013 as [an occupation] of [an Association]. From October 2011 until May 2013 he worked as [Occupation 1] for [Company 1].

18. It is indicated from both applications that in March 2008 the applicant moved to the same address in the district [as] had been lived at by the second named applicant since 1986. They lived at the same address until November 2012. Both applicants lived at another address from November 2012 until February 2013, a further address from February 2013 to June 2013, and then another address again from June 2013 until September 2013.

19. Both applicants indicate the following as to why they are seeking protection. The company to which the second named applicant went to work – [Company 1] – was owned by the applicant’s sister’s husband. In September 2012, [Company 1] concluded [an] agreement with Australian investor [and] the second named applicant worked as [Occupation 1] from the Mongolian side for a [project] and research work in [another] Province. In September 2012, during this project, a contractual driver of the company killed four people while driving a truck severely drunk.

20. Due to this accident, [Company 1] has been sued to reimburse the victims’ families. The case was officially closed in April 2014. Since the accident, families of the victims have been constantly claiming money and threatening both applicants with SMSs. Both applicants were attacked by strangers the whole time, including during the period of investigation, making a decision and after the court decision. The applicants’ families were threatened due to the fact that a director of [Company 1] is a relative.

21. The applicants changed location three times but it did not help. The families of the victims wanted money from the second named applicant and retribution for the lives lost. They have been breaking the applicants’ car wheels and windows frequently. On his way home from work, the second named applicant was attacked by a stranger with a knife, which injured his feet, but the second named applicant escaped. The second named applicant was beaten up in the hall of his apartment on the way home. On the way home, someone sprayed gas in the face of the second named applicant, punched him and then ran away.

22. On one occasion, after returning home from taking her [child] to [school], someone followed the applicant and bound her throat and pushed her down and abused her. The applicant screamed for help and the attacker fled. Similar attacks have occurred on three occasions. On returning home from work, someone attacked the applicant and beat her. It was dark so the applicant could not see the face of her attacker. The applicant was repeatedly attacked by strangers in her apartment hall. After the last attack, the applicant came to Australia at her sister’s invitation.

23. The second named applicant came to Australia on 15 October 2013 for an International [Conference]. The applicant’s [relative] (the owner of [Company 1]) came with his family [in] May 2014 to escape pressure and the threat of the families of the victims of the [Company 1] accident.

24. It is claimed that the risk to the applicants is compounded by poor ambulance services. There remains a risk that there will be pressure from the victims’ families for money and that there will be threats to the applicants’ lives and psychological pressure. The victims are not satisfied with the decision of the court and still seek revenge. Despite changing addresses, difficulties occur. Authorities cannot protect the applicants. They complained to police many times but did not receive any answer other than that ‘they are still on check’.

25. The following documents were provided with the application:

    ·Letter from [Company 1] indicating that the second named applicant worked as [Occupation 1] from [January] 2011 and that the second named applicant terminated his employment [in] May 2013.

    ·Copy of the original and a translation of ‘Conclusion of Hospital’ from [a hospital] dated [in] June 2014 indicating an admission of the second named applicant from [October] 2012 until [November] 2012 for [injury] around the [body].

    ·Copy of the original and a translation of ‘Conclusion of Hospital’ from the [hospital] dated [in] June 2014 indicating an admission of the applicant from [a date in] June 2014 until [later date] June 2014 for [an] injury.

    ·Photograph [showing] a scar on the [body] with the handwritten description, ‘spouses [body]’.

    ·Untranslated internet reports which include photographs of a smashed [vehicle] and police at the scene of what appears to be an accident. Otherwise, the content is unclear.

    Interview, hearing, credibility and assessment

26. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

27. In considering the credibility of the applicant overall, the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for … [but this should not lead to] … an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [191] where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

28. The Tribunal is satisfied that the applicants are citizens of Mongolia, and accordingly the claims will be assessed against Mongolia.

29. Evidence was given by both the applicant and the second named applicant in the interview with the delegate of the Minister which was inconsistent with other evidence by them, including their evidence in the Tribunal hearing. In the Tribunal hearing this inconsistent evidence from the interview was put to the applicant and the second named applicant respectively pursuant to the procedural requirements of s.424AA of the Act.

30. The Tribunal has numerous and significant credibility concerns with the claims of the applicant and the second named applicant which follow.

31. Firstly, in the interview with the delegate the applicant indicated that the third attack on her in June 2014 did not involve an actual physical attack as a result of which she did not report the matter to the police. The applicant had given evidence in that interview that she was severely physically attacked in the first incident that occurred in September 2012 after she returned home from taking her child to [school].

32. However, in contradiction, in the Tribunal hearing, the applicant described the incident in June 2014 as being the incident that occurred following dropping her child off at [school], in which she was severely physically attacked after returning home. The applicant indicated that this was the third attack.

33. The applicant said in the hearing that she was hospitalised after this incident as a result of being strangled, with [damage] to her throat. The applicant indicated that she reported the incident to the police but they did not take any substantive action.

34. The Tribunal noted to the applicant in the hearing the inconsistencies in evidence as to whether she was physically harmed in the attack that occurred in June 2014 or whether she reported the incident to the police. The Tribunal noted that the hospital report of June 2014 referred to [damage] of [another area of the body] rather than the throat. In response to this latter issue, the applicant said that she had damage to her throat and her back. She did not otherwise explain why the medical report referred to damage of [another body part].

35. The Tribunal is concerned about the applicant giving inconsistent evidence as to whether the final attack on her involved a physical attack and appearing to confuse the events surrounding the first attack and the third attack.

36. Secondly, in the interview with the delegate, the applicant said that she was first attacked in September 2012, the same month as the [Company 1] accident. She indicated that the second attack happened in October 2012 with the third attack in June 2014. In contrast, in the Tribunal hearing the applicant indicated that two to three months passed after the September 2012 accident involving the truck before the first attack on her. She then indicated that she was first attacked in November 2012 but she cannot remember well.

37. The Tribunal considers there is a significant discrepancy in evidence as to whether she suffered her first attack in the same month as the truck accident or two to three months later. Whilst the Tribunal acknowledges that the applicant claimed in the hearing that she had memory problems with the dates of the attack, the Tribunal is not satisfied that the applicant would be confused as to whether she was attacked within a matter of a few weeks after the incident or two to three months later.

38. Thirdly, in the interview with the delegate, the applicant indicated that the first attack on the second named applicant, her husband, occurred about six months after the September 2012 truck accident when he was attacked with a [knife]. In the interview between the delegate and the second named applicant, which was conducted separately from the interview with the applicant, he was asked when he was first attacked. The second named applicant responded that it was the winter following the accident, then indicating that the first attack occurred in January 2013.

1. In contrast, the applicant and the second named applicant indicated in the Tribunal hearing that the second named applicant was first attacked in October 2012.

2. Therefore the applicant and the second named applicant have been inconsistent in terms of the timing of the first attack on the second named applicant.

3. In response to these first three credibility issues put to both applicants in the hearing pursuant to the procedural requirements of s.424AA of the Act, the applicant provided a response to all concerns. The applicant indicated that in the interview with the delegate she had morning sickness. She indicated that she normally presents very well but was not able to do so in the interview. The Tribunal asked the applicant if she was saying that incorrect information was given in the interview and that the evidence given in the hearing was the correct information. She said that was the case. The second named applicant said that the inconsistencies need to take into account that the issues happened six years ago and there were several attacks and therefore the potential for confusion arises.

4. In the written response provided following the hearing the applicants did not address any of the issues put to them in the hearing pursuant to the procedural requirements of s.424AA. Other matters were addressed which are discussed later.

5. The Tribunal considers that the very significant inconsistencies canvassed in the first three issues seriously undermine the credibility of claims that both applicants have been subject to attacks after the truck accident. The claimed attacks would be searing events for the applicants and the Tribunal is not satisfied that if the events had happened there would be such significant confusion as to the timing of the attacks, the context in which they occurred, and what specifically occurred. The Tribunal is not satisfied that the applicant suffering morning sickness would explain the provision of incorrect and inconsistent information in so many respects. The Tribunal is further not satisfied that the passage of time would cause such significant inconsistencies in relation to very significant events in the applicants’ lives including forming the basis of their protection visa application.

6. Remaining credibility issues are discussed.

7. Fourthly, the applicant and the second named applicant have provided inconsistent evidence as to the detail of individuals killed in [September] 2012 truck accident. Further, in the interview with the delegate, the applicant did not display knowledge of compensation issues relating to the victims’ families that was consistent with the victims’ families causing multiple attacks on the applicant and the second named applicant as a result of the accident.

8. It is clear from other evidence that four individuals were killed in the [September] 2012 accident. In the interview with the delegate, however, the applicant indicated that two children were killed and the second named applicant, in contrast, indicated that one child was killed.

9. In the interview with the delegate, the applicant was asked how much compensation was awarded to the families of the victims by the Mongolian courts. In response, the applicant indicated that she did not know. The comment was made that this was surprising given that this was a central issue relating to the claimed attacks on her and her husband. In the Tribunal hearing, the applicant indicated an approximate amount that she says was awarded by the courts. She said she only learned of this after the interview with the delegate in discussions with her [relative], the owner of the company which had employed the perpetrator of the accident. The applicant referred to stress and other difficulties for not having a full understanding in this respect.

10. The Tribunal finds the information provided by the applicant and the second named applicant as to how many children were killed in the accident and the lack of knowledge by the applicant as to compensation details inconsistent with multiple attacks on them both allegedly perpetrated by families of the victims of the accident. Particularly noting that claims have been made that reports of the attacks were made to police, the Tribunal considers that both applicants would have made themselves fully aware of the identity of the victims for the purpose of seeking investigation of the families supposedly perpetrating the attacks. Given that the claimed attacks were out of a desire to seek retribution or compensation from the second named applicant, the Tribunal considers that both the applicant and the second named applicant would have made themselves fully aware of the compensation that had in fact been awarded.

11. Fifthly, evidence given in the Tribunal hearing as to the detail of the attacks had an air of unreality to the Tribunal. The Tribunal would consider that if there were multiple attacks on both the applicant and the second named applicant seeking retribution and compensation from them, then the attackers would make reference, at least in some way, to the victims of the accident and a desire for compensation. However, in the Tribunal hearing, the applicant indicated that nothing at all was said about the accident or otherwise when she suffered her various attacks. The second named applicant indicated that it was just indicated by his attackers that he must be killed.

12. The Tribunal has significant scepticism that if multiple attacks on the applicant and the second named applicant were perpetrated for the reasons claimed that there would not have been greater communication by the attackers as to the basis for the attacks and what was being sought from the applicant and the second named applicant.

13. Whilst this is not a determiner of matters in adverse credibility findings, it does buttress more significant credibility concerns.

14. Sixthly, it is not credible that the second named applicant would have left Mongolia for Australia in October 2013, leaving his wife and child behind. It is claimed that by this point in time, both the applicant and the second named applicant had been physically attacked on multiple occasions by individuals associated with the families of those who had died in the September 2012 accident.

15. The Tribunal asked both the applicant and the second named applicant during the hearing how the second named applicant could have left his wife and child in Mongolia given the prior attacks.

16. Both responded that the second named applicant had to come to Australia for work reasons. Once here, he decided that steps should be taken so that he and his family could seek protection in Australia.

17. The fact of the second named applicant deciding that the family should seek protection in Australia once he arrived does not answer the question as to how he could have left his wife and child in Mongolia at risk of harm given the prevalence of claimed previous attacks. In the circumstances, the Tribunal is not satisfied that the second named applicant would have made the decision to travel to a conference [associated] with his work in Mongolia if the prior attacks that are claimed had happened to both the second named applicant and his wife, with the risk still existing.

18. The Tribunal considers cumulatively the six credibility issues. There are multiple inconsistencies on not insignificant matters by both applicants. There are scenarios claimed which are implausible. The credibility concerns permeate a wide range of the issues claimed. The Tribunal is not satisfied that the applicant or the second named applicant have been truthful or credible witnesses.

19. The Tribunal is prepared to accept that the second named applicant worked for [Company 1] and that an employee of the company was responsible for a vehicle accident in which four people were killed, as claimed. However, the Tribunal is not satisfied as to any other substantive claims by the applicant and the second named applicant. The Tribunal is not satisfied that either the applicant or the second named applicant were threatened and physically attacked on multiple occasions as alleged by individuals associated with the family of victims who were seeking retribution, revenge or compensation outside of the judicial system. The Tribunal is not satisfied that vehicles of the applicant and the second named applicant were damaged as claimed. The Tribunal is not satisfied that there are individuals associated with victims of the accident who have any desire to harm, threaten or demand money from any of the applicants on return to Mongolia.

20. In making these findings, the Tribunal has taken into account the hospital records provided by the applicant and the second named applicant which indicate an admission by the second named applicant in October and November 2012 and an admission by the applicant in June 2014. If those records are genuine, the Tribunal is not satisfied that they are a product of attacks by the accident victims’ families and for the reasons indicated. The Tribunal acknowledges that the photograph has been provided of a person’s [body] showing a [scar]. The photograph is claimed to be of the second named applicant, which is not apparent from the photograph itself. The photograph is not overly probative and does not overcome the cumulative impact of the credibility issues identified.

21. Given the findings, the Tribunal is not satisfied that any of the applicants face a real chance of serious or significant harm as a result of harm perpetrated at the instigation of the families of the victims killed in the September 2012 truck accident.

22. In the written submission provided following the hearing the applicants make new claims. There is reference to the child, the third named applicant, and the youngest [age]-year-old child (not a party to the application) settling in Australia and difficulties for them in returning to Mongolia. It is claimed that schools in Mongolia are crowded and children have to learn in shifts. It is indicated that pollution in Mongolia causes health problems which will affect the well-being of the children. Reference is made to protecting the best interests of children under the UN Convention on the Rights of the Child.

23. No independent evidence has been provided by the applicants or is before the Tribunal which would support the proposition that the education system in Mongolia is so defective that returning a child to that country would constitute serious or significant harm. Nor is there independent evidence before the Tribunal that would substantiate the claim that air pollution is so significant that returning an individual to Mongolia would lead to a real chance of serious or significant harm. The Tribunal is not satisfied that the applicants face a real chance of serious or significant harm on these grounds.

24. In summary, the Tribunal is not satisfied that any of the applicants have a well-founded fear of persecution for a Convention reason for any of the reasons claimed. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of any of the applicants being removed from Australia to Mongolia, there is a real risk that they will face significant harm.

25. For the reasons given above the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

26. The Tribunal affirms the decision not to grant the applicants protection visas.

    David McCulloch
    Member