1510767 (Refugee)

1510767 (Refugee) [2018] AATA 3382 (24 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1510767
COUNTRY OF REFERENCE:                  Mongolia
MEMBER:David McCulloch
DATE:24 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 24 August 2018 at 10:09am

CATCHWORDS
Refugee – Protection visa – Mongolia – Social group – Homosexual – Victim of physical attacks – Verbal mistreatment – Decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65 438. 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 July 2015 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Mongolia, applied for the visa on 15 January 2015.
The applicant appeared before the Tribunal on 21 August 2018. The Tribunal was assisted with the use of an interpreter in the Mongolian language.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal made a request of DFAT for independent information pertaining to various claims by a number of Mongolian applicants. DFAT responded on 11 August 2017, including information on LGBTI issues. The Tribunal has taken account of matters in the report relating to LGBTI issues outlined below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant provided to the Tribunal a copy of the decision of the delegate. It indicates the following in relation to his migration history. The applicant arrived on 6 December 2014 on [a temporary] [visa]. This visa was due to expire on 17 January 2015. The application for the Protection visa was lodged on 15 January 2015.
The application for the Protection visa indicates the following in relation to the applicant. The applicant was born [in date]. He is a citizen of Mongolia. The applicant completed military service from June 1997 until June 1998. The applicant lists his occupation as [Occupation 1]. The applicant has never been married. The applicant indicates no close relatives in Australia. The applicant indicates that he is not in contact with relatives outside of Australia. The applicant indicates that he has no personal contacts in Australia. The applicant left Mongolia legally. The applicant travelled to China in September 2012 and March 2013. The applicant lists one address lived at in Mongolia from 1996 until June 2014. The applicant completed secondary school in [year]. The applicant undertook a [course] from September 1996 until April [1997]. From 1998 until 2008 the applicant [had] his own business. From 2008 to 2012 the applicant worked as [Occupation 1] in a club. From September 2012 until the applicant left for Australia he worked [for] a [company].
The applicant’s claims are set out in a written statement attached to the Protection visa application, which provides as follows:
First of all I want to express my gratitude for having an opportunity to be able to submit my case to Australian immigration services.
As for me I am a homosexual man who was living in Mongolia under difficult circumstances, constantly being harassed emotionally and physically and alienated
For over [number] years. Mongolia is a beautiful country but has a very conservative views regarding freedom of sexuality, in other words Mongolian people despise homosexuals.
I grew up as every other kid in Mongolia going to kindergarten then school. During my teenage years I was never attracted to girls opposing to my friends who would chase after them. I hardly found them pretty or beautiful.
In June 1997 I was called for army services following Mongolian law as every male citizen should fulfil duty to protect country. In august 1997 while having shower in public bathroom I met a handsome soldier [Mr A] from [a] province. He offered me to wash each other's back. While doing that I was aroused and attracted to [Mr A] and we ended up having sex. That was my first sexual experience and it was an amazing feeling I couldn't express in words. Later [Mr A] opened up to me and told me how attracted he was and how he was seeking an opportunity to show his affection to me. We were on seventh heaven, so into each other. But there was a constant shadow of fear that one day we will be exposed and we didn't even wanted to think what people will do to us.
In Mongolia homosexual people a minority and we live under despise, alienation, constant bullying and threat to life. Many times I was dragged to dark corner in winter and got beaten up and left without clothes, bleeding.
After army I started do powerlifting trainings to get strong and be able to protect myself from physical attacks. During that time I met [Mr B] - fellow lifter. We understood each other without words while having shower after training session. People like us are always very careful with flirting and dating and fear if someone will see as for consequences could be damaging physically and mentally.
Mongolia is so called democratic country which respects human rights but community's tendency towards homosexuals are very cruel. In their eyes we are freaks, filthy perverts and insult to nation.
Since my family and friends found out my sexual tendency they got estranged and cut all contacts with me. To be fair my family suffered enough from constant verbal attacks and insults coming from community.
Couple of times completely devastated of my life, of who I am, broken down mentally and physically - I tried to commit suicide.
In this statement I've tried to give a brief understanding of the misery and horror I'd gone through.
At the end I still have hope that I could live without a fear rest of my days in a country which accepts my sexual tendencies and with a people that respect me as a human being.
The applicant provided to the Department a copy of the original and translation of the following documents from [a] Hospital:
· Dated [in] September 2010 indicating that applicant was hit on his [knee] with a heavy object [in] March 2010. He also needed his lip sewn ‘for a hit’. He undertook treatment for six months and there was bruising on ligaments of the [knee].
· Dated [in] March 2012 indicating that the applicant received [an] injury through being hit with a blunt object [in] March 2012. He received 14 days’ treatment and was diagnosed with [an injury].
Copies of x-rays are provided of what appeared to be a skull and a knee joint.
The applicant provided to the Department of copy and an original of a police report dated [in] March 2010 in which the applicant indicated that he was wounded in his lips by being beaten by a named [individual] [in] March 2010. It refers to disagreeing with the decision and having rights to make a complaint to a higher level prosecutor within 10 days.
The applicant provided the Department copies of photographs which show the following:
·     Three photographs of the applicant with his arm around other males.
·     The applicant and another male in army uniform in front of a tank.
·     The applicant in a gym.
·     The applicant photographed with a pouting expression.
The applicant provided to the Department a statement from the Mongolian Central Authority for State Registration dated [in] June 2015 indicating that the applicant is not married.
The applicant provided to the Tribunal a letter dated 20 August 2018 from an individual in Australia, a man, who claims to have been in a friendship with the applicant since April 2018 when he met the applicant at [a venue]. The friendship later grew to a sexual relationship for a few weeks. The writer attests to the applicant being a dependable friend and level-headed.
Independent information
As indicated above, the Tribunal made a request of DFAT for independent information pertaining to various claims by a number of Mongolian applicants. DFAT responded on 11 August 2017 including information on LGBTI issues[1]. It provided as follows on those issues, including in relation to the ‘Mongolian context’:
[1]Australia: Department of Foreign Affairs and Trade (DFAT), “Mongolia – Response to Migration and Refugee Division, AAT, Country Information Request – Political, security, economic update – LGBTI – Women – Domestic Violence and Sexual Violence – Muslims - Dayar Mongol, Blue Mongol‟, 11 August 2017.
Mongolian context
2. Since 1990 Mongolia has been a liberal democracy with a robust and peaceful political system characterised by an elected President and Parliament. Transition of power has generally been smooth and swift. The constitution established in 1992 specifically grants freedoms of expression and religion and prohibits discrimination against ethnicity, race, age, sex, and social status. Mongolia is a signatory to eight out of the nine United Nations human rights treaties including the International Convention on the Elimination of All Forms of Racial Discrimination; Convention on the Elimination of All Forms of Discrimination against Women; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Convention of the Rights of the Child; and Convention on the Rights of Persons with Disabilities [Comment: despite good intentions, a lack of capacity within the civil service has limited implementation of these treaties, and related domestic laws]. Mongolia outlawed the death penalty in 2012.
3. The Mongolian economy is heavily linked to global mining commodity prices with China being the largest export market. While previous economic growth, largely driven by mineral exports, has helped the country reach lower-middle income status, Mongolia's poverty rate remains relatively high, with about one in three people living in poverty. More than half the population work in the services sector which accounts for around 50% of GDP, although this will decline when the large Oyu Tolgoi copper and gold mine reaches full production and contributes an estimated 30% of GDP. The IMF economic outlook indicates Mongolia will continue to see low economic growth until mining output increases and commodity prices improve.
4. In 2016, Transparency International scored Mongolia a relatively poor 38 out of 100 (0-highly corrupt to 100-very clean) for perceived public sector corruption. That said, Mongolia's international ranking was 86 out of 176 nations (1 being the least corrupt), up from a ranking of 116 in 2010. The Asia Foundation's Survey on Perceptions and Knowledge of Corruption 2017 indicates that 60.4 per cent of the respondents believe corruption has increased over the last three years. This survey indicated that political parties, the national government and the parliament are perceived by the public as being among the top 5 corrupt institutions. In the education sector, a 2017 report by the Asia foundation found that admissions to schooling is the most corrupt with bribery and nepotism widespread and required to enrol children in desired kindergartens, primary schools, and universities.
LGBTI issues
5. Meetings with stakeholders confirmed the UNDP 2014 report Being LGBT in Asia: Mongolia Country report remains largely valid. The report notes that:
·    there is no explicit legal discrimination based on sexual orientation (other than marriage laws) however more needs to be done to provide protection for the LGBTI community.
·    there is little sensitisation among civil servants, including health professionals and law enforcement officers about LGBTI human rights with the majority of the LGBTI community surveyed reporting abuse by law enforcement.
·    Mongolia is generally not open or welcoming to alternate and non-traditional sexual orientations and gender identity. The report finds that LGBTI people are not generally accepted by family members and 87 per cent of the LGBTI people surveyed are not “out” to their families.
·    Discrimination against LGBTI people in the area of employment was one of the most serious and frequent human rights violations. The LGBTI community faced challenges in finding employment, faced dismissal if status become known, and faced difficulty in obtaining redress for acts of discrimination in the workforce.
6. Mongolia’s only LGBTI human-rights lobby group, the LGBT Centre, was established in 2009 after repeatedly being denied registration for 2 years. The LGBT Centre released a 2017 report into LGBTI youth discrimination in Mongolia, key findings included continued high levels of discrimination against LGBTI youth from families, schools and health professionals.
7. The Mongolian Government has demonstrated an awareness of the problems facing the LGBTI community by explicitly including discrimination based on sexual orientation as a crime in the new Mongolian criminal code (effective 1 July 2017), although it is too early to judge the effectiveness of this law. The various interviews conducted by Post generally indicated that, with the introduction of the new criminal code, the legal structure offered adequate protection to the LGBTI community, if properly implemented. All stakeholders agreed that societal attitudes combined with a lack of training for public servants, including for health professionals and law enforcement officers, would make implementation of legal protections difficult. This view was confirmed by the Police Department’s crime prevention unit who indicated that very few police were sensitised or trained to deal with the LGBTI community, although the police have an active program of training officers in this area with 100 officers currently being trained by the LGBT Centre and international experts.
The US Department of State in its Mongolia 2017 Human Rights Report provided the following information concerning violence and discrimination on the basis of sexual orientation and gender identity and HIV and AIDS stigma:
The new criminal code prohibits discrimination based on sexual orientation, gender identity, nationality, language, race, age, gender, social status, professional position, religion, education, or medical status. Violators are subject to a maximum penalty of five years’ imprisonment. As of September no cases had been prosecuted under the new law. The law permits persons who have had gender reassignment surgery to have their birth certificate and national identity card reissued to reflect the change, and the LGBT Center reported that transgender persons successfully applied for new identity cards under this provision.
NGOs continued to report that LGBTI individuals faced violence and discrimination both in public and at home based on their sexual orientation or gender identity. There were reports LGBTI persons faced greater discrimination and fear in rural areas than in Ulaanbaatar due to less public awareness and limited online media accessibility in rural areas. The LGBT Center received a number of reports of violence against LGBTI persons, most involving young LGBTI persons who either came out to their families or were discovered by their families to be LGBTI.
The LGBT Center noted that the new criminal code increased police and public awareness of abuses faced by the LGBTI community, and specialized police training on responding to hate crimes increased police capacity to respond to problems affecting LGBTI persons. There were still, however, cases involving police harassment of LGBTI victims of alleged crimes. Charges were frequently dismissed when a crime victim was an LGBTI person.
There were reports of discrimination against LGBTI persons in employment (see section 7.d.).
HIV and AIDS Social Stigma
Although there was no official discrimination against those with HIV/AIDS, some societal discrimination existed. The public generally continued to associate HIV/AIDS with same-sex with sexual activity, burdening victims with social stigma and potential employment discrimination.[2]
[2] US Department of State, Mongolia 2017 Human Rights Report, pp.18-19
Hearing, credibility, findings and assessment

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 & Anor (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 & Anor 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 (Randhawa).
In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa 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 of Australia (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.
The Tribunal is satisfied that the applicant is a citizen of Mongolia and accordingly his claim will be assessed against Mongolia.
In the hearing, the applicant provided details of his relationship with [Mr A] while he was in the military in 1997-1998 that were broadly consistent with the details that he provided in the interview with the delegate. The relationship initially continued for six months until the parties were separated. In the hearing, the applicant indicated that the relationship recommenced for a period. The applicant indicated that an officer came to suspect or learn of the relationship and that he beat the applicant. Consistent with evidence in the interview, the applicant indicated that this officer had a close connection with [Mr A]. This officer, after the beating, became contrite about beating the applicant because of the risk to the officer of the applicant making a complaint and it being investigated. The applicant indicated that the officer did not reveal the relationship to others.
In the hearing, the applicant said that the relationship he entered into with [Mr B] began in 1999 and continued until 2002. This is not consistent with the evidence given by the applicant in the interview with the delegate as to the time period of this relationship.
The applicant indicated in both the interview and the hearing that he suffered difficulties from the family of [Mr B] after the relationship ended. The applicant indicated in the hearing that he met up with [Mr B] around 2009, although they did not recommence a relationship. The family of [Mr B] blamed the applicant for problems that [Mr B] suffered including his heavy drinking. They attacked the applicant in both 2010 and 2012 as corroborated by the police report concerning the incident in 2010 and the medical reports concerning both incidents.
The applicant provided evidence in the hearing that was broadly consistent with that in the interview with the delegate of him having a relationship with a man named [Mr C] from 2004 until 2009. The applicant indicated that on one occasion he was attacked by relatives of this man. He said that later in the relationship, because [Mr C] was diagnosed with a serious illness, from which he later died, the family of [Mr C] let the relationship continue without causing significant problems.
The applicant in the hearing gave convincing evidence as to his involvement in the gay [community], after coming to Australia. The applicant indicated that he has met some gay people who have become friends. He gave evidence of attending the Mardi Gras parade and after-party two years previously. He referred to attending [a venue], which is a gay [pub]. In addition to a short-term relationship with a person who has provided the supporting statement, who continues to be a friend of the applicant, in the hearing, the applicant said that he had had a short-term relationship in [Australia] with another man from Mongolia.
The applicant indicated in the hearing, consistent with evidence in the interview with the delegate, that his family suspected his homosexuality from 2002. His sexuality was confirmed for his family after the attack that he suffered near his home in 2012 from the relatives of [Mr B]. Although the applicant had built his own home on the property where the rest of the family lived in another premises, there was distance between the applicant and the rest of his family because they lived in separate houses. His family wanted little to do with him due to his sexuality.
The applicant had given evidence in the interview with the delegate and in the Tribunal hearing that during periods he would live elsewhere from the family property to escape difficulties due to his sexuality. There were inconsistencies in dates as to when this occurred.
The Tribunal commented to the applicant that his evidence in the hearing was that he had maintained steady employment during his time in Mongolia including having his own business [from] 1998 until 2008 and, from 2012 was a co-owner of [another business]. The Tribunal explored with the applicant difficulties in employment due to knowledge of his sexuality. The applicant responded that he would attempt to hide his sexuality with people related to his employment. He indicated that there were some problems and suspicion of his sexuality but this did not create difficulties as severe as the physical attacks he had referred to relating to his various relationships.
Considering all of the evidence, the Tribunal is satisfied that the applicant is homosexual and has had gay relationships in both Mongolia and Australia. Whilst there are some deficiencies in the applicant’s evidence, overall the applicant provided detail and context in relation to his sexuality and associated claims which was convincing to the Tribunal. With some exceptions, as discussed, there has been broad consistency between the applicant’s accounts.
The discrepancy in evidence by the applicant as to the years of his relationship with [Mr B] does not result in the Tribunal disbelieving that the applicant had a relationship with this person.
The Tribunal is satisfied that the applicant was physically attacked by an army officer while he was in the military and engaged in a relationship with [Mr A] because of the relationship. The Tribunal is satisfied that the applicant was in relationships with both [Mr B] and [Mr C] as claimed.
Whilst the Tribunal considers that there has been a degree of embellishment as to difficulties suffered by the applicant from the families of these two individuals, the Tribunal is satisfied that the applicant suffered at least some physical attacks from relatives of these two individuals.
The discrepancies in dates provided by the applicant as to when he had to move elsewhere due to his sexuality do not cause the Tribunal to disbelieve the core claims of the applicant. The Tribunal, however, considers there has been some exaggeration and embellishment in claims of having to leave his family property because of difficulties due to his sexuality.
Mistreatment verbally as well as physical attacks suffered by the applicant due to his sexuality are not inconsistent with the independent information referred to in this decision as to the lack of acceptance of homosexuality in Mongolia and mistreatment, including physical violence perpetrated against gay people.
The Tribunal is satisfied that the applicant has acted in Australia consistent with his sexuality, such as attending Mardi Gras and having been involved in at least two relationships with men, which the Tribunal accepts he has done, albeit none of which were long-term.
The Tribunal is satisfied that the applicant would return to Mongolia as a homosexual and wish to enter into relationships with men. The Tribunal considers that the applicant would be reasonably discreet in relation to such relationships. That discretion would be because the applicant would be fearful of the consequences should he be more open about his sexuality. The Tribunal considers it not unlikely, notwithstanding discretion, that others in Mongolia are likely to become aware of relationships and the applicant’s sexuality, as they have in the past.
Given the negative attitudes towards homosexuality in Mongolia, the Tribunal is satisfied that the applicant faces a real chance of both serious and significant harm, as defined in the Act. Harm would include the real chance of physical harm, as it has in the past.
In terms of considering the applicability of the refugee criterion, the Tribunal notes s.5J(2) of the Act indicating that a person does not have a well-founded fear of persecution if effective protection measures are available to the person in the relevant country. Section 5LA further defines ‘effective protection measures’. The Tribunal notes that the independent information contained in this decision indicates the view of DFAT that the legal framework recently introduced in Mongolia in relation to homosexuality offers adequate protection to the LGBTI community.
Given the existence of these laws, for the purpose of this decision only, and acknowledging that the extent to which there is practical adequate enforcement of those laws is not yet clear, the Tribunal would find that there are effective protection measures available to the applicant in relation to his sexuality and therefore he is not taken to have a well-founded fear of persecution. The Tribunal notes that under the definition of effective protection measures, police need to provide, not perfect protection, but reasonably effective protection.
This is not a finding that is determinative of the outcome in this matter because, in any event, the applicant would satisfy the complementary protection criterion, in the Tribunal’s view. This is because a different and stricter test applies in relation to effective protection as set out in s.36(2B)(b) of the Act. Under that section, protection must reduce the risk of harm to less than a real risk for the purpose of the complementary protection criterion. This is a more stringent test than s.5LA(2)(c).
The Tribunal is not satisfied on the evidence, given attitudes towards homosexuality in Mongolia, consistent with the applicant’s past experiences, that the legal framework and police protection would reduce the risk of harm to the applicant based on his sexuality to less than a real risk. This is because there is the potential for the applicant to face physical harm before the involvement of police, who would be likely involved after the harm has occurred, or due to the operation of the legal system, which would not operate until after the harm had occurred. The Tribunal finds that the applicant would face a real risk of degrading treatment or punishment as well as cruel or inhuman treatment or punishment within the terms in s.36(2A) of the Act.
The Tribunal does not consider that the applicant can escape a real risk of harm by relocating because the risk of harm would be prevalent throughout Mongolia, and therefore s.36(2B)(a) does not apply.
The Tribunal considers that the risk to the applicant is based on a particular characteristic, his homosexuality, and therefore the risk to him is not a risk faced by the population generally rather than the applicant personally, and therefore s.36(2B)(c) does not apply.
The Tribunal is satisfied that the applicant does not have a right to enter and reside in any country other than Mongolia.
On the Departmental file are two certificates issued pursuant to s.438 of the Act restricting the disclosure of certain information on the file on the basis that it would be contrary to the public interest because it contains information relating to business affairs and constitute internal working documents. The Tribunal is not satisfied that these are reasons which legitimately justify a public interest exemption, and therefore the Tribunal considers that the certificates are not valid.
In summary, the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Mongolia, the applicant faces a real risk of significant harm, and that no exclusionary provisions apply.
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 s.36(2)(a).
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 satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.
David McCulloch
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)    conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)    the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)    significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)    significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)    disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)    the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)    the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)    the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)    the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 3382

24 August 2018

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