1517695 (Refugee)

1517695 (Refugee) [2018] AATA 3848 (16 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1517695
COUNTRY OF REFERENCE:                  Mongolia
MEMBER:David McCulloch
DATE:16 July 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 16 July 2018 at 11:25am
CATCHWORDS
REFUGEE – Protection visa – Mongolia – Social group – Discrimination – Credibility issues – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 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 1 December 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 May 2015.
The applicant appeared before the Tribunal on 10 July 2018 at 1.30pm. The Tribunal was assisted with the use of an interpreter in the Mongolian language.
The applicant was represented by her registered migration agent, who did not attend the hearing.
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.
Paragraph 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 (Department) – 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 to the Tribunal. 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 decision under review should be affirmed.
Background and claims
The applicant was granted a [Visa 1] to Australia [in] February 2015. [In] March 2015 the applicant entered Australia on the visa. The application for the protection visa was lodged on 15 May 2015.
The application forms for the protection visa indicate the following in relation to the applicant. The applicant was born on [date]. The applicant has never been married. The applicant reads, writes and speaks Mongolian only. The applicant lists both parents and [siblings] in Mongolia. From 1999 until April 2014 the applicant lived in [Country 1]. The applicant was in [Country 2] for business between [February] and [March] 2015. The applicant lists one address in Ulaanbaatar from 1990 until September 1999. The applicant lists an address in [Country 1] from September 1999 until June 2014. The applicant lists an address in Ulaanbaatar from February 2014 until March 2015. The applicant lists that from June 1997 until July 1999 she was unemployed in Mongolia. The applicant finished secondary school in [year]. From July 1999 until June 2014 the applicant worked as [an occupation] in [Country 1]. From June 2014 until May 2015 the applicant was an [occupation] in [Country 1].
In the hearing, the applicant indicated that the claim to work in Mongolia between June 2014 and March 2015 is a mistake and that she had returned to Mongolia in June 2014. The Tribunal notes that this clarifies additional inconsistencies above as to the month in 2014 in which the applicant returned to Mongolia.
The applicant provided the following written statement to the Department outlining her claims for protection (not corrected for spelling or grammar):
I, [the applicant], was born on [date], in [Mongolia]. In [year], I started school in [a] province. Then in 1990 I moved into city Ulaanbaatar. My father used to [be] so strict with me like a boy. I have never worn a dress or played with a doll like a normal girl. I always felt myself as a boy and used to have only male friends.
When I was in secondary school, at [age], I had a crush on a girl, who used to live at next door. Her name was [Ms A]. She was a very beautiful girl with long dark hair and big brown eyes. Whenever I saw her I got a strange feeling that I couldn't explain in words. From that moment I found myself that I am not a typical girl I wanted to be close by her side, but [Ms A] accepted me as a good girlfriend of hers. For 3 years, we were such best friends and we used to share everything to each other. At [an event] she told me that she was having a boyfriend. It was hard to overcome, but I let her go because I was just a friend. If I have told her about my feelings, I should have been discriminated or humiliated by others. In Mongolia, it is not accepted to be homosexual, particularly, among the school kids. Even I could have been eliminated from the school if I had told someone else.
Afterwards, I finished my high school and entered to [University] to become an [occupation]. There were many students from different provinces of Mongolia. I felt more freedom in my student days and started to dress as I wanted. At the student welcoming party, I made many friends. Among them I met [Ms B], who I was in relationship for 2 years. She was from [another] province and used to live in dormitory. For first few months we were just friends. During the winter break, when all students went back home, [Ms B] stayed at dorm to keep her part-time work. She used to work as [occupation]. One day I came to see her and had couple of [beers]. On that day both of us found out that we were same. Since then I felt happily ever. Next year I moved to her dormitory to live with her. Four girls used to live in one room and other two girls didn't like us and spread gossip about our relationship. Soon afterwards it was hard for us to go to school and we started to experience worst days and even my family found out about this.
Being a lesbian daughter in the family is such a shame for her parents and family. That's why my father started to hate beat me badly. Even my mother and sister refused to see me again at all. It was too hard for me and my lover, [Ms B]. We didn't know how to escape, but we decided to disappear. Firstly, [Ms B] went home to her province. Her parents used to live in the countryside and it was safe for her to stay there for a while. At that time, there were no place and no one to protect me. Several times, I was beaten heavily by my father's brothers for humiliating the family name. I ran away from home and never came back.
Later, I went to join my [Ms B] to her province in the countryside. She introduced me as a friend to her family and we started to live together. I used to help her in household and we lived for years at her home with her parents.
However soon her parents realised that we live as a sexual partners and since there I was forced to leave their house.
In May 1999 managed to get visa to [Country 1]. In 2000 while in [Country 1] I entered in to relationship with a local girl who used to work at the same [factory] where I use to work. Our relationship was very god and continuous. However as my visa expired I was forced to leave [Country 1].
Upon arrival in Mongolia I decided to move to the country where I could live without fear for my life and safety, so I managed to get an Australian visa.
I am positive that I will not be able to live in Mongolia without constant fear for my safety.
Mongolian authorities can not protect me because they are corrupt and also share the same attitude towards lesbians as the rest of the community. I will never find any place in my home country where I can live without fear.
More sincerely I implore Australian government to provide me with asylum so I could live without any fear for my future.
At the Tribunal hearing, the applicant provided photographs. A number of the photographs are of the applicant with whom she indicates is her girlfriend, [Ms B], taken in Mongolia. There is another photograph of the applicant at [Hotel 1], as is apparent from the sign above the bar, which is a hotel in a [City 1] suburb. The applicant also provided a document which is not translated. In the hearing, the applicant indicated that this is a document from [a] Mongolian [Authority] dated [January] 2015 stating that the applicant is single.
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.
Interview, hearing, credibility 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.
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.
The Tribunal has the following credibility issues with the applicant’s claims.
Firstly, the applicant has provided significantly inconsistent evidence as to the length of her relationship with [Ms B] in Mongolia. The applicant’s written claims indicate that she was in a relationship with this person for two years. In contrast, in the Tribunal hearing, the applicant indicated that she met this person at the beginning of University in September 1998. They began a relationship during the winter break, at the beginning of 1999. She indicated that the relationship ended when [Ms B]’s parents found out in August 1999 about the relationship when she was staying at their home in the countryside. On that evidence, therefore, the applicant was in a relationship with [Ms B] for 8 months which is significantly different than two years.
When this inconsistency was put to the applicant in the Tribunal hearing, she initially indicated that she was in a relationship with this person from September 1998, as that is when she first met [Ms B]. The Tribunal noted to the applicant that this was still well less than two years. In response, the applicant indicated that so much happened that she thought that it was much longer.
The Tribunal notes this explanation. However, whilst the Tribunal might accept that when simply responding to questions the applicant might have in her mind an exaggerated belief as to the length of her relationship, the inconsistent evidence is provided in the applicant’s written claims for protection. These claims and their accuracy are matters that the Tribunal considers the applicant would have been conscious needed to be correct given the importance of the application and the potential for the applicant and questioned in detail as to her claims by the delegate.
The Tribunal has credibility concerns as a result of the significant inconsistency in evidence as to the length of her claimed relationship with [Ms B].
Secondly, the applicant has provided inconsistent evidence concerning the period of time she lived at [Ms B]’s family home in the countryside. In the applicant’s written claims, she says that she ‘lived for years’ at this home. In contrast, in the Tribunal hearing, the applicant indicated that she lived at this location for about three months ending in August 1999, when [Ms B]’s parents found out about the relationship and she had to leave.
The Tribunal acknowledges the potential for an inaccurate or mistaken expression in making her written claims on non-core matters, however the Tribunal repeats that the applicant would have been conscious of the need for accuracy in making written claims. This credibility concern buttresses the many other credibility concerns.
Thirdly, the applicant has provided inconsistent evidence as to when she made the decision to travel to [Country 1], and when she obtained the visa to travel to [Country 1]. In the Tribunal hearing, the applicant indicated that she was advised by a friend, after she had been asked to leave [Ms B]’s family home in August 1999, about the option of going to live in [Country 1]. The Tribunal confirmed with the applicant that she did not make the decision until this point in time. The Tribunal noted to the applicant that in her written claims she indicated that she obtained the visa to travel to [Country 1] in May 1999. In response, the applicant said that this must be a mistake.
The Tribunal again notes its belief that the applicant would have been conscious to have ensured accuracy in her written claims for protection. The inconsistency on this not trivial issue is of credibility concern to the Tribunal.
Fourthly, the applicant did not provide an account of her family learning about her relationship with [Ms B] and their reaction that caused the Tribunal to consider that the applicant was recounting events that actually occurred. The applicant had indicated in the hearing that she went to live in rooms at college with her girlfriend, together with other girls. She indicated that other girls reported to management that the applicant was in a relationship and management told the applicant’s parents. The Tribunal asked the applicant on a number of occasions to provide precise details of her parents confronting her about her sexuality and how they then treated her.
The Tribunal had indicated to the applicant when commencing questions in relation to her sexuality that it was important for her to provide detail in response to questions asked that would result in the Tribunal believing that the applicant was talking about events from actual experience. However, despite a number of questions by the Tribunal, the applicant responded in relative generalities and without detail, including a lack of peripheral detail that might be expected when recounting searing events. Instead, the applicant made broad statements about her father being angry, and her mother less so, and her father slapping her and being beaten by her uncles. The applicant did not provide detail that created the impression to the Tribunal that the applicant was recounting events from actual experience.
The Tribunal certainly acknowledges challenges in providing evidence in a stressful Tribunal setting and through the use of interpreters. Nevertheless the Tribunal is concerned, despite explaining to the applicant the importance of detail, that the applicant failed to provide an account of her parents finding out about her relationship and that treatment of her that conveyed an impression that she was recounting actual events.
Fifthly, the applicant’s written claims indicate that she ran away from home yet, in the Tribunal hearing, the applicant indicated that she was evicted from her home (which was still her primary residence even though she was living in college), when her parents found out about her relationship. In response to this inconsistency, the applicant indicated that she ran away from home but at the same time her parents forced her to leave.
The Tribunal considers that being told to leave home and running away from home are quite different scenarios and are not mutually compatible. The Tribunal considers that there is an inconsistency in evidence on this issue.
Sixthly, the applicant’s evidence in relation to knowledge of other homosexuals while growing up in Mongolia was not credible to the Tribunal. The Tribunal asked the applicant if she knew of other homosexuals when growing up and at university. In response, the applicant indicated that homosexuality is not accepted in Mongolia. The Tribunal indicated that, be that as it may, homosexual people would exist. The applicant responded that she did not know any other homosexuals.
The Tribunal finds it quite unlikely, particularly when the applicant was at university, and in the context of her claims that there was widespread knowledge of her same-sex relationship at university, that the applicant would not have come into contact with gay individuals, such as from gay individuals offering collegiality or support, or at least have had knowledge of other homosexual individuals which the Tribunal considers statistically would exist within Mongolia and the University.
The applicant’s evidence on this issue did not have an air of reality.
Seventhly, similarly, the Tribunal found the lack of the applicant’s knowledge of or involvement in the gay scene in [Country 1] where she lived for 15 years as not credible. In the Tribunal hearing, the applicant indicated that a fellow worker was a girlfriend for four years in [Country 1]. When the Tribunal asked the applicant about the gay scene, clubs, bars and social groups in [Country 1], she indicated that the treatment of gay people was similar to Mongolia. When the Tribunal pressed further, the applicant indicated that as she had a girlfriend she was not interested in finding other people (thus having no involvement in the gay ‘scene’).
The Tribunal is conscious of not imposing stereotypes or expected norms of behaviour on the applicant as a gay/lesbian person in [Country 1]. Nevertheless, the Tribunal finds it unusual that the applicant, as a young gay/lesbian woman, and having lived as such in [Country 1] for 15 years, would have no knowledge of a gay scene or culture in that country.
Eighthly, the applicant’s knowledge of gay venues in [City 1] was similarly limited even though she claims to have visited gay venues. Further, evidence of the applicant being in a relationship with a girl in [City 1] for the last two years as she claims is limited to her own say-so with no corroborating evidence from her girlfriend provided.
In the Tribunal hearing, the applicant said that, in [City 1], she has been in a relationship with another Mongolian woman for the last two years. She said that they go to venues in [suburb] and are able to hold hands together publically. The applicant indicated that her girlfriend was reluctant to give evidence to the Tribunal on her behalf. The Tribunal noted to the applicant that her girlfriend’s evidence would be entirely confidential. The applicant indicated that, notwithstanding this, her girlfriend would not wish to give evidence.
This would be important corroborating evidence for the Tribunal, particularly in light of the many other credibility concerns.
The Tribunal asked the applicant as to the names of the gay venues that she and her girlfriend attend in [suburb]. The applicant indicated that they do not attend just one venue. The Tribunal asked the applicant again if she could name any of the venues. The applicant was not able to provide any names.
This lack of ability to provide the names of any gay venues attended is of concern to the Tribunal in terms of claims that the applicant attends gay venues in [City 1].
Ninthly, the applicant has indicated that she was told by agents in [Country 1] that seeking the equivalent of a protection visa in the country was not possible. The Tribunal provided to the applicant independent research that had been prepared at the request of the Tribunal by the Country of Origin Information Services Section of the Department of Home Affairs.[3] That research makes clear that it is possible to seek the equivalent of protection in [Country 1] on the basis of sexuality, and that some applicants have been successful on that basis, although successful outcomes are not common.
[3] Country of Origin Information Services Section of the Department of Home Affairs [Country 1]: CI18062615215226 – Refugees – LGBTI.
The Tribunal accepts that the applicant could have been told by agents that seeking protection on the basis of sexuality in [Country 1] was difficult and that the applicant could have interpreted this as meaning that it was not possible.
However, evidence on this issue in the interview with the delegate was equivocal and shifting. In that interview, the delegate indicated that [Country 1] was a party to the Refugees Convention and asked whether the applicant made enquiries about seeking protection in the 15 years that she lived there. In response the applicant initially said that she applied a few times but was not successful. When asked again if she sought protection, she then indicated that she looked into it but did not actually apply, and was looking for other ways to stay.
The Tribunal put to the applicant in the hearing this evidence pursuant to the procedural requirements of s.424AA of the Act as relevant given the shifting of the applicant’s evidence as to whether she sought protection in [Country 1]. In response, the applicant indicated that [Country 1] society is not accepting of homosexuals.
The Tribunal is concerned at the applicant initially telling the delegate that she did apply for protection in [Country 1] but then repudiating this.
Tenthly, information provided by the applicant for her [Visa 1] to enter Australia indicated that she was [an occupation] for [Company 1] since February 2013 contrary to the applicant’s claims in her protection visa application that she was unemployed after returning from [Country 1] in June 2014 until leaving for Australia. Departmental notes in relation to the processing of the visa application indicate that the applicant works as [an Occupation] for [Company 1]. The applicant’s company is [affiliated with a] company in Australia called [Company 2]. The Departmental notes indicate that the managing director of [Company 2] was called by the Department who confirmed that the applicant is [details deleted]. The managing director confirmed that he was familiar with the applicant and her role in Mongolia.
The Tribunal put the above information to the applicant in the hearing pursuant to the procedural requirements of s.424AA of the Act. The relevance of this information, particularly the confirmation as to the employment of the applicant by the managing director of [Company 2] in Australia, are an indication that the applicant’s claimed circumstances in terms of her employment, are not as set out in the protection visa application.
The consequence of relying on this information could be to conclude that her circumstances are not as claimed and her claimed basis of her travelling to Australia to seek protection based on being a lesbian was not the actual reason for her travel.
In response, the applicant said that she just handed over her passport to an agent who arranged the visas and does not know what information was provided to secure the visa. Whilst the Tribunal accepts that there can be good reasons for providing false information for a visa when there is a pressing need to leave the country, the Tribunal has significant doubts that the applicant would not be aware of what false information was provided as this could well be needed for answering questions from Immigration officers when clearing immigration in Australia. Further, the fact of the Department speaking to the managing director of the Australian company whose products the applicant is claimed to have distributed and for him being specifically aware of the applicant tends to suggest that the employment situation provided by the applicant as part of her [Visa 1] application was not the truth of the situation.
The Tribunal considers these ten credibility concerns. The Tribunal acknowledges that none of the credibility concerns individually would undermine the applicant’s claims that she is a lesbian.
The Tribunal would be prepared to accept in relation to many of the issues the potential for misstatement, mistake, confusion or lack of complete knowledge being a cause of the particular credibility concern rather than clearly indicating lack of truth by the applicant. The Tribunal accepts that a person desperately needing to flee the country might need to facilitate fraudulent arrangements to secure a visa.
The issue of concern to the Tribunal is the fact that there are so many credibility concerns and that they permeate all aspects of the applicant’s claims. The individual concerns are not insignificant in nature. The existence of many credibility concerns cumulatively considered are significantly damaging to the applicant’s overall credibility.
The cumulative impact of the credibility concerns result in the Tribunal considering that the applicant has not been a truthful or candid witness.
The photographs provided by the applicant of her and her claimed girlfriend in Mongolia and the applicant in a bar in [City 1] do not overcome the cumulative impact of the credibility concerns to persuade the Tribunal the applicant is gay and that her claimed experiences as a result are genuine.
The Tribunal is not satisfied that the applicant grew up having an attraction to girls, and forming an attachment to a girl at school. The Tribunal is not satisfied that the applicant entered into a relationship with [Ms B] at university which was discovered by management and her classmates and the applicant’s parents. The Tribunal is not satisfied that the applicant was reprimanded and physically attacked by her parents or uncles as claimed. The Tribunal is not satisfied that the applicant was either kicked out of home or ran away from home as a result. The Tribunal is not satisfied that the applicant went to live at the home of [Ms B] where she lived for several months before she was required to leave because [Ms B]’s parents found out about the relationship. The Tribunal is not satisfied that the applicant travelled to [Country 1] as a result of these issues.
The Tribunal is not satisfied that the applicant had a same-sex relationship in [Country 1]. The Tribunal is not satisfied that the applicant is in a same-sex relationship in Australia. The Tribunal is not satisfied that the applicant is homosexual or would be homosexual on return to Mongolia.
Given the Tribunal’s findings, it is not satisfied the applicant faces a real chance of serious or significant harm on return to Mongolia for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s.5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Mongolia, there is a real risk that she will face significant harm.
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 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

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 3848

16 July 2018

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