1512388 (Refugee)

1512388 (Refugee) [2018] AATA 4249 (5 September 2018)
.
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512388
COUNTRY OF REFERENCE:                  Mongolia
MEMBER:David McCulloch
DATE:5 September 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 September 2018 at 4:20pm

CATCHWORDS
REFUGEE – protection visa – Mongolia – particular social group – women – single women – domestic violence – new relationship and children – threats of violence – state protection – credibility issues – Ministerial Intervention recommended – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 351, 417, 424AA, 499, 501J
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (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 and Border Protection 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 October 2014 and the delegate refused to grant the visa on 18 August 2015.
The applicant appeared before the Tribunal on 15 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [name], the applicant’s partner in Australia. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
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’).
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 (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. The Tribunal has taken account of matters in the report, in particular relating to women, single women and domestic violence. The information provided by DFAT in this respect is outlined further below.
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 decision under review should be affirmed.
Background and claims
The applicant arrived in Australia [in] October 2013 as the holder of [a] Student visa valid until [December] 2014. That visa had been applied for on 5 September 2013 and had been granted on 16 October 2013. The application for the protection visa was lodged on 15 October 2014.
The application forms for the protection visa indicate the following in relation to the applicant. The applicant was born on [date] in Ulaanbaatar. The applicant speaks, reads and writes Mongolian and English. The applicant was married [in] May 2008. The applicant lists one address lived at from [year] until October 2013. The applicant completed [number] years of education. She completed secondary school in [year]. From [specified year] until [year] the applicant studied at [a tertiary institution]. The applicant obtained a [qualification] in [year]. The applicant lists her occupation or profession as [Occupation 2]. From 2008 until 2010 the applicant worked as [an Occupation 1] for [Employer 1]. From October 2010 to October 2013 the applicant worked as [an Occupation 2] at [Employer 2]. The applicant lists her husband and child as living in Mongolia.
The applicant provided the following statement setting out her claims for protection (not corrected for spelling or grammar):
[Name], was born on [date]. I finished my high school in [year] and graduated from [a tertiary institution] with [a qualification]. From 2008 to 2009 I worked as [an Occupation 1] at [Employer 1]. Since 2010 till 2013 I had been worked as [an Occupation 2] at [Employer 2].
According to the arranged engagement between two families I married to [husband’s name] in 2004. Before that I used live with my mother and elder brother. I gave a birth to a girl in [year] and now my daughter is [age] years old. Particularly, my husband had changed a lot in a bad way after my mom passed away in 2005. Then I started to live in serious condition, my husband used to drink, smoke and beat me in regular basis, which gave me hard time to live with him. On that time the only person who used to protect me was brother, [named].
Last time in January 2013, I got beaten heavily and I received medical assistant. I was unconscious when I brought to the hospital and had three stiches inside and ten stiches outside on [body part]. I stayed in hospital and at home around [number] months having medical treatment. While that period I filed a case to the police and court, but unfortunately my mother in law had a big influence in a court, as she was [an official] and my case was withdrawn as a small family issue.
Since that my situation went worse and he started to threaten me to kill. Luckily, in mid 2013 my husband got -a big debt after gambling and he went to [Country 1] under the labour agreement for six months. Meanwhile my brother and his friend supported me to study and improve my English in Australia. My brother believed that English language knowledge would help me to get better job and live without looking at my husband's hand.
[In] October [2013] I arrived [in Australia], but my husband and his family didn't know about that I tried my best to study hard. Unfortunately, in July 2014 my only brother died due to worksite accident. Now I feel like my whole world destroyed and there is no one to protect and support me anymore. Recently I finished my study and I was planning to go back to Mongolia, but now I am afraid of going back and I don't know what will happen to me. Because my husband is capable to do anything and furiously waiting me to come back home. I left my daughter with my brother before I leave, now she lives with my brother's girlfriend.
Thus, I sincerely wish you to consider my situation and give me opportunity to stay and live in Australia safely and happily with my daughter.
The following documents were provided by the applicant to the Department:
·Document from Central Archives indicating that [Mr A] is the brother of the applicant
·Death certificate relating to [Mr A] [in] July 2014
·Death certificate of [name] re his death [in] October 2005
·Reference from [the named registry] of [Hospital 1] indicating that the applicant received first aid on [a date in] January 2013 at [Hospital 1] as she was injured due to being beaten by others. The diagnosis was [specified injuries]. Eight stitches were placed on the [main injury]
·Medical reference indicating the applicant to be released from work/school [between specified dates]
·Letter from [Employer 2] indicating that the applicant was released from her [job] [between the specified dates] under a medical reference
The Tribunal notes the following from the interview between the applicant the delegate of the Minister. The applicant indicated that she has met a person in Australia who is a permanent resident. She has known this person since 2013. She became pregnant to this person in November 2014. The applicant would like to live with this person and have his baby.
The applicant indicated that she has not divorced her husband in Mongolia. She indicates that her husband would not want a divorce.
The applicant indicated that the relationship with her husband began in 2004 and they were married in 2008. The daughter she had with her husband in Mongolia now lives with the applicant’s maternal grandmother. She used to live with her brother’s girlfriend.
The applicant indicated that she first thought she needed protection when she heard that her brother had passed away in July 2014. The applicant indicated that she had previously been happy to return to Mongolia. However, without her brother to protect her, she was no longer willing to go back. The applicant indicated that she delayed applying for protection until October 2014 because she was not able to think straight.
The applicant indicated that her ex-husband had found her phone number and phoned and abused her in Australia, the last time being after her brother had passed away. The applicant indicated that her husband had harmed their daughter in the past. She fears that both herself and her daughter will be harmed by her husband.
The applicant confirmed that the person who provided financial details supporting the applicant’s student visa, [Mr B], was like a brother. He had provided a supporting letter for the student visa application. He had been brought up by the applicant’s parents and is close to the applicant. The applicant indicated that he is employed with a [service] company as a director. The applicant indicated that she does not keep in contact with him.
Independent evidence
DFAT provided the following information concerning women, single women and domestic violence in a report dated 11 August 2017:[1]
[1] 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.
Question 9: Please provide an update on the general situation for women, single women, and for single women with children in Mongolia? For example, what levels of discrimination do they face (e.g. in education, employment, housing, access to social services) and do these differ across the country?
Women comprise 50.8 per cent of Mongolia‟s population. Single mothers comprise 4.9% of the population (National Statistics Office, 2016).
The Constitution of Mongolia (1992) grants all Mongolian women and men equal rights in the political, economic, social, cultural life and family relations. Fourteen other laws on social welfare, labour, health, education, political parties, land allocation, domestic violence and human trafficking further protect women‟s rights in Mongolia. Mongolia is a signatory to all major international conventions on women‟s rights and gender equality.
According to the UNDP‟s Human Development Report (2016), Mongolia ranks at 63 among 155 countries on Gender Inequality Index (GII).
While Mongolian women enjoy fairly equal rights with men in all aspects of political, social and economic lives, there are areas for improvement. While women make up 90 per cent of heseg (lowest state administrative unit) leaders, this number falls to 17 per cent at the national parliament level. The UNDP reported, due to unpaid work, Mongolia‟s “young women earn 1.4 times less than young men.” Family care duties often fall on women, which prevent them from networking opportunities and to promote businesses. Men are traditionally considered as heads of the household, which often means men are registered as the legal owners of land, livestock or real estate. This trend limits women‟s economic rights, or in the case of divorce, leaves them in a financially vulnerable position.
In 2011, Mongolia passed the Law on Promotion of Gender Equality, which grants equal rights for both men and women in all areas of society, including education, employment, health care and political participation.
In 1924, women in Mongolia were given an equal right to vote and to stand for election. The 1924 law provided the basis for women‟s participation in the formal political system. Currently, a record number of women, 13 out of 76, are elected to the Parliament, the highest number in Mongolia‟s parliamentary history. Women‟s representation in the Parliament of Mongolia provides widening access into political decision making. A women‟s coalition was established in 1996 to promote female representation in parliament and women‟s participation in the democratic society.
Mongolia has made progress in removing discrimination against women in employment by removing legal prohibition on women being employed in 500 specific sectors. Despite this, the World Bank has found women in Mongolia participate less in the labour force and Mongolian labour markets are highly occupationally segmented by gender. In 2016 a Swiss study found the occupational segregation of women remains the same as it was ten years ago “education - 80.6 per cent, health and welfare - 79.4 per cent, and the social sciences, business and law - 64.3 per cent”.
Women, particularly young women, tend to do more of the unpaid work. According to the Mongolia Human Development Report (2016), in 2011, 17 per cent of 25- to 29-year-old women reported they took care of the home, versus only 1 per cent of the men in this age-group. Family care duties often fall on women, which prevent them from participating in networking opportunities and supporting their business. Men are traditionally considered as heads of the household, and usually end up having land, livestock or real estate registered in their name. This trend could limit women‟s economic rights, or in a divorce scenario, leaves them in a financially vulnerable situation.
In Mongolia, a large portion of men (64 per cent) and women (68 per cent) work in the informal sector, which has the lowest degree of social protection and offers less salary than the formal sector work. The World Bank found “the concentration of rural women in the informal sector, including artisanal and small-scale mining implies that, firstly, women are mostly unremunerated or unpaid workers.”
Question 10: What support services are available to women, single women, and for single women with children generally?
Support services for women, single women and single women with children are limited. In general the Government does not target women, single women, or single mothers for state assistance. There are no state provided child-care facilities which have a large impact on single mother‟s labour force participation rates.
The Government provides pregnant women (single and married) with free health checks every month during their pregnancy. Delivery services are also provided for free. From month 5 until delivery of the child, pregnant women are also paid MNT40,000 per month (approx.$22).
Recent changes to the law have introduced three new support programs:
·single parents (male or female) with 3 children aged under 18 years will receive MNT240,000 per quarter (approx. $133 per quarter).
·Single or married women who remain home to look after children aged under 3 years will receive MNT50,000 per month (approx. $28 per month).
·Children of single headed households (male or female) where the household is below the official poverty line, will receive discounted education supplies, including books, uniforms and stationary.
In addition, small cash-transfers to families with children under 18 are provided to all families, no specific targeting of women or single mothers. The Government will move to better target these transfers based on income levels.
The law on social welfare provides single women aged 45 years or above, or single men aged 50 years or above, with four or more children under age 18 years or below, with a monthly pension payment of MNT140,000 (approx $78 per month).
Two cash-transfer payments previously available to single women or men with children under 14 years have been terminated by the current Government due to budget constraints
Question 11: What is the level of sexual violence against women and single women in Mongolia?
There were 21 sexual violence cases reported in the first half of 2017, up from 10 reported in the same period in 2016. Police data indicate that sexual violence cases represent 2.9% of total domestic violence reports.
Question 12: What is the level of state protection available to them in cases of sexual violence?
The Mongolian Government and society more generally have recently been very active in raising the awareness of domestic violence through the debating and subsequent passing of a new law on combating domestic violence (effective since 1 February 2017). This law strengthened the previous law on domestic violence across a number of areas including by expanding types of incidents that are classified as crimes, clarifying police department roles and responsibilities, providing physical protection for victims, establishing one-stop services for victims, and clarifying penalties. Whilst many of the perpetrators of the 721 domestic violence cases in 2017 have been charged under the new law, it is too early to judge the effectiveness as court cases can take up to 12 months. The Mongolian Police has a new division in charge of preventing crimes, explicitly including domestic violence, which was established March 2017, and is responsible for training officers in the new law. The Government has started a large training program across education, health and other relevant Ministries to assist civil servants understand and respond appropriately to domestic violence issues.
The new law on domestic violence establishes the framework for the following services to be offered to victims:
·     physical protection,
·     medical support services,
·     mental or psychological support services,
·     legal support services,
·     social support services,
·     child protection services, and
·     liaising with other stakeholders and other support services
These services are yet to be defined and implementation is hampered by a lack of capacity in the various Ministries required to deliver additional services.
Question 13: Provide an update on the level of family/domestic violence against women and single women in Mongolia?
In Mongolia, 29.5 per cent of the population are women of reproductive age (15-49 years), 38 per cent are children and 30 per cent are children under 5. There is a high rate of gender based violence (GBV) and a lack of psychosocial and other support available. Domestic violence has a strong gender bias: police records show that 92 per cent of the victims of domestic violence (DV) in 2017 were women.
A 2015 assessment conducted by the Committee on Economic, Social and Cultural Rights revealed that GBV and DV are prevalent and widespread in Mongolia. A survey on prevalence of GBV in Mongolia will be conducted for the first time in the country by the National Statistics Office in 2017, with the support of UNFPA and the Swiss Agency for Development and Cooperation. The results of this survey will reflect a more accurate picture of the scope of the problem. While those results are still forthcoming, national administrative data reveals an upward trend in cases of GBV based on police reports alone.
In the first half of 2017, reported domestic violence cases fell by 5.6 % compared to the same period in 2016.
Police department statistics shows that 104 women died due to the domestic violence between 2010 and 2016. In this period, 168,715 crime cases were registered out of which 5,537 were domestic violence (3.2% of reported crimes). Of the reported domestic violence crimes 38.1 per cent were in rural areas and 61.8 per cent in Ulaanbaatar.
In 2017, 721 domestic violence reports were received and 7 deaths were reported (including 2 children). Rural domestic violence cases accounted for 43.8% of total reported cases.
The Police department believes that only one fourth of domestic violence crimes are officially reported. Further, they emphasised that rural women face additional obstacles to reporting domestic violence including remoteness, availability of cellphones, lack of information, and small communities.
Question 14: What level of state protection is available through the legal system and police for those women who face or are victims of domestic violence?
See response to question on state services available to victims of sexual violence.
Question 15: What services outside the criminal justice system are available to women who fear, or are victims, of domestic violence?
There are very limited services available to women who fear or are victims of domestic violence. The list of services authorised by law are outlined in the response to question on state services available to victims of sexual violence.
Outside the government there are a few NGOs who provide services to support victims. The most active is the National Centre against Violence (NCAV) which was established in 1995. NCAV provide legal advice, counselling, and shelter to around 2,000 victims of domestic violence every year. Unfortunately the Government took over NCAV‟s rural shelters (16) and progressively closed them since 2011 due to lack of funds for maintenance and operations.

The US Department of State Mongolia 2017 Human Rights Report provides the following in relation to the treatment of women:
Rape and Domestic Violence: The criminal code outlaws sexual intercourse through physical violence, or threat of violence, and provides for sentences of one to 20 years’ imprisonment or life imprisonment, depending on the circumstances. Under the new criminal code, spousal rape was criminalized.
Although domestic violence remained a serious and widespread problem, the new criminal code for the first time criminalized such offenses. Perpetrators can now be punished under both administrative and criminal law, including with imprisonment. The government redesigned its nationwide database of domestic violence perpetrators, and those who commit a second domestic violence offense are automatically charged under criminal law.
Although the law provides alternative measures of protection for victims of domestic abuse, including restraining orders, procedural and other barriers make these difficult to obtain and enforce.
The nongovernmental National Center against Violence (NCAV) reported during the year that police response to domestic violence complaints improved, but prosecution continued to lag. Both the Prevention of Domestic Violence and Crimes against Children Division and the NCAV noted increased reporting of domestic violence by third parties and police responsiveness, which it also attributed to increased government and public awareness of the problem. Combating domestic violence is included in the accredited training curriculum of the law enforcement academy and in all police officer position descriptions.
According to NCAV there were 17 shelters and six one-stop service centers run by a variety of NGOs, local government agencies, and hospitals, compared with seven shelters in 2016. The one-stop service centers, located primarily at hospitals, provided emergency shelter to victims for up to 72 hours. Although three new shelters opened in rural areas, the continued relatively small number of shelters located in these areas presented a challenge for domestic violence victims seeking assistance.
Sexual Harassment: The new criminal code failed to include sexual harassment as a crime despite NGO advocacy in support of such a provision. NGOs stated there was a lack of awareness and consensus within society of what constituted inappropriate behavior, making it difficult to gauge the extent of the problem.
Coercion in Population Control: There were no reports of coerced abortion, involuntary sterilization, or other coercive population control methods. Estimates on maternal mortality and contraceptive prevalence are available at: The law provides the same legal status and rights to women and men, including equal pay for equal work and equal access to education. These rights were generally observed, although women faced discrimination in employment (see section 7.d.).
The law sets mandatory minimum quotas for women in the government and political parties. It also outlaws discrimination based on sex, appearance, or age, although some NGOs noted that authorities did not enforce this provision.
In most cases the divorced wife retained custody of any children; divorced husbands often failed to pay child support and did so without penalty. Women’s activists said that because family businesses and properties were usually registered under the husband’s name, ownership continued to be transferred automatically to the former husband in divorce cases.
No separate government agency oversees women’s rights, but the National Committee on Gender Equality, chaired by the prime minister and implemented by the Ministry of Labor and Social Protection, coordinates policy and women’s interests among ministries, NGOs, and gender councils at the provincial and local levels. The National Program on Gender Equality 2017-21 and its related action plan were adopted to provide for the economic empowerment of women and equal participation in political and public life.[2]
[2] US Department of State Mongolia 2017 Human Rights Report, pp. 13-16
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 (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.
In considering overall the credibility of the applicant, the Tribunal is cognizant 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 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 her claims will be assessed against Mongolia.
In the hearing, the applicant gave evidence in relation to the claimed attack from her husband in January 2013. She gave evidence that was plausible and convincing. She said that she was [hit] by her husband with [an object]. This necessitated both external and internal stitches around [the injury] in hospital where she stayed for [number] weeks, spending [a period of time] recovering at home.
The applicant indicated that her husband disappeared for a period after this incident. When she returned to the home that she lived at with her husband, her brother moved in to live with her.
The applicant has provided a medical report in relation to this incident, a medical certificate requiring her release from [work] and a statement from her employer saying that she was released from work for this reason. The Tribunal accepts the veracity of these documents.
The Tribunal accepts that the applicant’s husband inflicted this violence on the applicant as claimed in January 2013.
The Tribunal, however, has credibility concerns as to the applicant’s husband having an ongoing intent or ability to harm the applicant and their daughter and the applicant having a genuine fear of returning to Mongolia from her husband. This is for the following reasons.
Firstly, the applicant will not return to be with her husband. The parties are clearly separated, albeit not formally divorced. The applicant has been apart from her husband for the last five years. The applicant has been in a relationship with [her partner] in Australia since 2014 and they have had [number] children in Australia together, as indicated in the hearing
Secondly, the fact that the applicant came to Australia with an intention to study and return to Mongolia is undermining of her claims that she faces, or fears, a real chance of serious or significant harm from her husband. The explanation by the applicant that the death of her brother in July 2014 was the catalyst for the applicant fearing harm from her husband was not plausible to the Tribunal as an explanation for the sudden concern.
The applicant confirmed in the hearing evidence from the interview with the delegate that she came to Australia to study with the full intention of returning to Mongolia. She confirmed that it was only when her brother died in July 2014 that she began to fear her husband. The applicant has explained that this is because her brother will not be in a position to protect her.
The Tribunal noted to the applicant in the hearing that it was implausible that she would suddenly fear her husband based on a belief that her brother could not protect her. Her brother had not protected her during the years that she was with her husband and he did not protect her from the incident in January 2013. If he were alive, the applicant’s brother would not likely be living with the applicant on her return to Mongolia and certainly would not be with her every moment of the day to protect her.
In response, the applicant said that her husband would be reluctant to harm her when her brother was around.
Whilst the Tribunal accepts that this could well be the case if the brother was in the immediate vicinity of the husband, the Tribunal remains unconvinced that the death of her brother in July 2014 would suddenly cause the applicant to have a fear of her husband after previously being willing to return to Mongolia.
The fact that the applicant originally intended to study in Australia and return to Mongolia is undermining of her claims to now have a fear of her husband causing her serious or significant harm on return.
Thirdly, the evidence of the applicant in the Tribunal hearing that her husband had tried to take their daughter ‘once or twice’ from the home of the applicant’s grandmother where the daughter was living was unconvincing to the Tribunal.
The Tribunal explored with the applicant in the hearing the contact that her husband sought to initiate with his daughter after he returned from [Country 1]. The applicant indicated that her husband returned from [Country 1] in February 2014 at which point the daughter was living with the applicant’s brother and his girlfriend.
When the Tribunal asked an open-ended question as to whether there was contact between her husband and his daughter after he returned from [Country 1], the applicant indicated that he tried to contact his daughter but his daughter did not want to see him. The Tribunal then asked whether the husband did see the daughter. The applicant indicated that her daughter met him on one occasion in the presence of the applicant’s brother, but the father left a bad impression on the daughter by stating that the applicant had left her. The applicant indicated that this meeting probably happened in February 2015.
The Tribunal asked whether there was subsequent contact. The applicant indicated that after her brother passed away, there was no contact, and her daughter did not want to meet the father. The applicant indicated that her daughter went to live with the applicant’s maternal grandmother. The Tribunal then asked the applicant whether there was contact between the husband and the daughter when she was living with the applicant’s grandmother. The applicant responded that her husband would call and ask to see his daughter but the grandmother would try and put this off.
The Tribunal expressed to the applicant that as the father, her husband would likely have a legal right to custody or certainly access to his daughter. The applicant indicated that she did not know why he did not exercise such rights.
The applicant then made the claim that on one or two occasions her husband visited the home of the grandmother and tried to take the child forcefully. The daughter cried and the husband did not end up taking her.
The Tribunal, as noted to the applicant in the hearing, has significant scepticism at the claim that the husband tried to forcibly take the daughter on one or two occasions from the home of the applicant’s grandmother. This is for a number of reasons which follow.
The Tribunal initially asked open-ended questions of the applicant as to contact between the husband and the daughter after the husband returned from [Country 1]. At this point, the applicant made no mention of forcible attempts to take the daughter. The Tribunal is inclined to consider, if true, that the applicant would have referred to these forcible attempts to take the daughter at an earlier point in questioning as to contact between the husband and the daughter.
Further, the applicant made no mention in her relatively detailed written claims of the husband attempting to forcibly take the daughter. This would be a significant and upsetting matter. If true, the Tribunal considers that the applicant would likely have referred to this in her written claims.
Further again, the applicant’s partner in Australia, [named], had no knowledge, when questioned in the hearing, of the applicant’s husband in Mongolia attempting to forcibly take the applicant’s daughter. The failure of [her partner] to have details of this when he and the applicant had been together since 2014 was undermining of the applicant’s claims that there were attempts by the husband to forcibly take the child. The failure of [her partner] to have any knowledge of this was put to the applicant in hearing pursuant to the procedural requirements of s.424AA of the Act. In response, the applicant indicated that these events happened when she and [her partner] were not living together. When the Tribunal asked why such significant events would not have been relayed to [her partner] over time, the applicant indicated that when she was living with [her partner] they had a baby and this occupied her attention.
The Tribunal notes that [the applicant’s partner] had indicated in the hearing that he has spoken with the applicant’s daughter in Mongolia by telephone. He also indicated that he had learnt from the applicant as to the situation in Mongolia. This would indicate some degree of connection between [the applicant’s partner] and the applicant’s daughter and a knowledge of significant events relating to the applicant and her daughter. The Tribunal does not find it credible that [the partner] would not have been told at some point by the applicant that the applicant’s husband in Mongolia had tried to forcibly take her daughter.
This, together with the number of other not insignificant credibility concerns in relation to this aspect of the applicant’s evidence, causes the Tribunal to not be satisfied at the applicant has been truthful in relation to claims that her husband has attempted to forcibly take her daughter.
The Tribunal is of the view that this was a constructed claim by the applicant, made during the course of questioning in the hearing, that she determined was likely to be better suited to supporting her claimed fears of harm.
Fourthly, the applicant has not been consistent in claims of court action following the attack by her husband in January 2013. In the applicant’s written claims, she indicated that, following the incident, she made a complaint to the police and filed a case in court but that the influence of her mother-in-law, who the applicant indicated in hearing was [an official], meant that the case was withdrawn as a small family issue.
In contrast, in the Tribunal hearing, the applicant indicated that she complained to police but that they did not take action because they believed the explanation of her husband that the applicant had just accidentally fallen down. The Tribunal is concerned that the applicant made no mention in the hearing of there being the commencement of court proceedings.
The Tribunal acknowledges this is an inconsistency on a relatively minor point, but it does buttress other more significant credibility concerns.
Fifthly, the claimed level of fear by the applicant of her husband, and on behalf of her daughter, is not consistent with the applicant leaving her daughter in Mongolia at a potential risk of harm from her father. The applicant confirmed in the hearing that she had a fear that her husband would physically harm or even kill both herself and her daughter.
The Tribunal does not find it credible that a mother, the applicant, would leave a daughter to face a real chance or risk of serious or significant harm from an aggrieved husband. The Tribunal acknowledges that the applicant’s husband may have a greater animosity towards the applicant than the daughter. However, the applicant herself indicated that she held a similar fear for her daughter as she held for herself.
Sixthly, the claim by the applicant of not being formally married until 2008, while living with her husband from 2004, appears inconsistent with her claims that he started behaving violently in the marriage from 2005. There is inconsistent evidence as to whether the applicant was married in 2004 or 2008. The applicant indicated in the hearing that she was married in 2008 but had lived with her husband from 2004. She said that what occurred in 2008 was a formality with a certificate being obtained, possibly for some reason that she cannot now recall. The applicant indicated in the hearing that there was not a ceremony.
The Tribunal noted to the applicant that it seemed unusual that if violence by her husband had been perpetrated against her from 2005 that she would have agreed to the formal marriage taking place in 2008. The applicant had referred to this event being a formality and that she was under pressure from her husband.
The Tribunal certainly accepts a potential imbalance of power between the applicant and her husband and that the marriage was a matter of formality. Nevertheless, the Tribunal has some residual concerns at the applicant’s claims of violent treatment from 2005 yet marrying the applicant in 2008. This creates some question for the Tribunal as to the extent of the mistreatment of the applicant by her husband during the course of their relationship, although accepting that the attack in January 2013 occurred.
Seventhly, [the applicant’s partner] gave evidence in the hearing of being contacted and threatened by the applicant’s husband which was not credible to the Tribunal.
[The applicant’s partner] told the Tribunal that in 2015 in Australia that he had received perhaps six phone calls from the applicant’s husband threatening him with harm if he returned to Mongolia. When the Tribunal asked [the applicant’s partner] as to the phone on which he received these calls, he said that it was his mobile phone. When the Tribunal asked [him] how the applicant’s husband could get his Australian mobile phone number he did not have a ready explanation but referred to close social networks.
There was no indication that [the applicant’s partner] and the applicant’s husband were known to each other. Indeed, [her partner] indicated that he has been in Australia for more than 10 years. The Tribunal does not consider it credible that the applicant’s husband would have obtained [her partner’s] Australian mobile phone number and made threats to him on that number.
The Tribunal considered the seven credibility concerns cumulatively. Whilst the Tribunal has accepted that the attack in 2013 occurred, the Tribunal is not satisfied as to the other substantive claims.
The Tribunal is not satisfied that there were court proceedings initiated after the attack or that the applicant’s mother-in-law intervened to curtail these. The Tribunal considers that this is an exaggeration by the applicant. The Tribunal is prepared to accept that police determined not to take action. That is not inconsistent with independent evidence as to hurdles in obtaining protection in domestic violence matters in Mongolia.
The Tribunal is not satisfied that the applicant’s daughter has had any significantly adverse contact with her father after the applicant left for Australia. The Tribunal is not satisfied that the applicant’s husband tried to forcibly take his daughter on one or two occasions as claimed, particularly noting the third credibility issue.

The Tribunal is not satisfied that [the applicant’s partner] has received threats from the applicant’s husband on his mobile phone in Australia. Whilst the Tribunal is prepared to accept that the applicant has been contacted by her husband, it is not satisfied that he has issued genuine threats to physically harm the applicant on return to Mongolia.
The Tribunal acknowledges that there have been problems in Mongolia’s domestic violence framework, though there has been a recent government focus on such issues. However, the Tribunal is not satisfied that the applicant would return to be in a domestic relationship with her husband. They have been apart for five years. The applicant has a new partner in Australia and, as was indicated in the hearing, they have [number] children born in Australia.
The Tribunal would not be satisfied that the applicant’s husband has an intent to track down the applicant, should she return to Mongolia, and inflict serious or significant harm on her out of revenge for the ending of their relationship. The Tribunal is not satisfied that the applicant holds a genuine fear of harm from her husband, particularly noting the first credibility issue.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm from her husband for the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason for the reasons claimed. The Tribunal is not 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.
The Tribunal has considered the exercise of ministerial powers. Guidelines for the exercise of ministerial discretion under s.351, s.417 and s.501J of the Act are set out in what is known as ‘PAM3: Act – Ministerial powers – Minister’s guidelines on ministerial powers’ which the Tribunal has had regard to.
The Tribunal notes as relevant the guidelines which set out situations where there are unique or exceptional circumstances which may be referred to the Minister for use of his intervention powers. Relevant to this matter are:
Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident
[The applicant’s partner], in the hearing, indicated that he is an Australian permanent resident and entitled to citizenship. He indicated that he obtained his permanent residency through a protection visa in relation to Mongolia. He claimed that, after providing a paternity test, the [children] of himself and the applicant have been recognised as Australian citizens.
The Tribunal was satisfied on the evidence in the hearing that the relationship between the applicant and [her partner] was genuine. They provided birth certificates of their [number] children born in Australia naming the applicant and [her partner] as parents.
Both parties indicated their desire to remain together. It was not clear to the Tribunal why an application had not been made for a partner visa, although the applicant indicated that she would need to go offshore during the application process. In terms of the guidelines for ministerial intervention referred to, they state that it would be inappropriate to consider an application for ministerial intervention if the person is eligible to apply for a partner visa onshore.
In the event that the applicant is not eligible to apply for a partner visa onshore, and on the basis that it is correct that [her partner] is a permanent resident and the children are Australian citizens, the Tribunal would recommend the exercise of ministerial intervention for the applicant. This would be to preserve the integrity of the family unit. If it is correct that [her partner] was granted a protection visa in relation to Mongolia then that will likely prevent him returning there to remain with the applicant in the event that she is required to return to Mongolia.
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
Member

[2018] AATA 4249

5 September 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction