1602065 (Refugee)

1602065 (Refugee) [2019] AATA 3430 (22 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1602065
COUNTRY OF REFERENCE:                   Mongolia
MEMBER:David McCulloch
DATE:22 February 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 22 February 2019 at 9:47am

CATCHWORDS

REFUGEE – protection visa – Mongolia – complementary protection – member of a particular social group – homosexual – attacked by groups of nationalists – credibility issues with documents – lack of state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations (Cth) 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 25 January 2016 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 30 June 2015. The delegate refused to grant the visa. The delegate accepted that the applicant is homosexual; however the delegate did not accept the claims of harm the applicant suffered in Mongolia based on his sexuality. The delegate considered that whilst there may be discrimination on the basis of sexuality in Mongolia, the applicant would be able to receive adequate state protection. Nor did the delegate consider there was a real risk of the applicant facing significant harm based on his sexuality.
The applicant appeared before the Tribunal on 20 February 2019. The Tribunal was assisted with the use of interpreter in the Mongolian language. The applicant was represented by his 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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal made a request to DFAT for independent information pertaining to various claims by a number of Mongolian applicants. DFAT responded on 11 August 2017, including providing 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 the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background and claims
The applicant has provided the Tribunal a copy of the decision of the delegate which indicates the following in relation to his migration history. The applicant was granted a [temporary] visa on 25 November 2013 which was valid until 7 February 2015. The applicant entered Australia on the visa [in] December 2013. The applicant departed Australia [in] November 2014 and returned [in] December 2014. The applicant applied for a further [temporary] visa on 9 September 2014 which was refused on 26 March 2015. The application for the protection visa was lodged on 26 May 2015.
The application forms for the protection visa indicate the following in relation to the applicant. The applicant was born on [date] in [District 1], Mongolia. The applicant has never been married or in a de-facto relationship. The applicant lists both parents [and siblings] in Mongolia. The applicant returned to Mongolia in November and December 2014 to visit his parents. The applicant studied in [Country 1] from September 2004 until July 2008.
From birth until September 1990 the applicant lived in [District 1], Mongolia. The applicant listed one address in Ulaanbaatar, Mongolia from September1990 until December 2013, other than between 2004 and 2008 when the applicant was in [Country 1]. In the interview with the delegate the applicant indicated that he actually rented different places from 2008 and the address in the application is just where his correspondence was sent. The applicant completed high school in [year]. Between September 2008 and July 2012 the applicant studied at [a college] and obtained a [qualification]. Between September 2004 and July 2008 the applicant worked [in Occupation 1] in [City 1], [Country 1]. Between June 2010 and December 2013 the applicant was [working at a] company in Ulaanbaatar.
The applicant provided the following statement attached to his application form setting out his claims for protection (not corrected for spelling or grammar):
I am [the Applicant].I was born on [date] in [District 1] of Mongolia. I am [details deleted]. I have [siblings]. But I never lived with my family.After I was born, my parents were students in [another country] so they left me with my grandparents who lived in [District 1] of Mongolia. From infant till finished high school I lived together with my grandparents. When I was a child my cousins and aunts visited and lived in grandpa's house during school summer holiday. Many girls, who are my cousins and their friends played together with me at that time. Since that time I felt a strange feeling because I wanted to be like as my cousins and girls. I liked to wear like as girls, make up, to have women bags and high heels. At last I knew I really liked to become a girl. During school summer holiday kinds of entertainment contests were organised at summer camp such as "Who would be the most beautiful girl?" or "Miss Camp" among boys. I usually participated in such games and I got the first places and won for too many times from elementary school till high school. Anyway I felt a strong feeling that I am a perfect woman.
At middle school I started to be-interested in boys of same class and saw them secretly. In other words I liked them. I understood and knew I am not normal and I couldn't be that strange but I really couldn't stand and win myself Actually I used to repeatedly want this secret feeling and only boys in my eye.
When I was [in] school there was a guy, whose name is [Mr A], born in [date] and lived in my neighbour. At that time [Mr A] just arrived and released from Army and wasn't employed at any place yet. I made him friend and visited each other's house to hang out together. One summer day (July 11) he called me to his house and asked me to help him for doing some works. When I was at his house he offered me to watch very interesting movie and he said this is adults video named porno. [Details deleted]. I felt physical happiness. That was my first time sex in my life. Since then we were sexual partners till I finished high school. However I really afraid someone would know this secret. After I became student and moved to capital city [Mr A] and I separated from each other and our sexual relationship was cut. Soon I went to [Country 1] to learn [the] language. When I studied at [a] language class in [Country 1] I've know [a] Thai guy, [age] old is a gay like me. We know each other and made close relationship so we lived together in a dormitory. And also a Vietnamese guy, whose name is [Mr B], [age] old and studied at same school, have worked in [the same business] at that time. I knew him and was employed in [Occupation 1] for part time job in favour of [Mr B]’s help. So I became [an Occupation 1] in [Country 1]. I had no problem to find a job because I am handsome and tall. I worked there for [a number of] years and the [business premises] was located in [the] centre of [City 1], the capital city of [Country 1] and where [westerners are] located. There are mostly [western] style bars and entertainment centres in this district so that such kinds of [service centres] are possible to run business and there are many customers at my work. [Country 1] has more populated than Mongolia so even if my work is secret it was better than being in Mongolia. There I learnt and used to do below kinds of [Occupation 1 services]:
[Information deleted].
It is very hard to be a gay in Mongolia. The society and people of Mongolia never agree gay and they understand such case is never impossible. People hate and don't accept as a human. In Mongolia I need to cover my gay image and always afraid of people.
I didn't do anything wrong to people but they attacked and beaten me several times and I got injuries due to their action for several times too. Don't need to say human right, freedom and real democratic society. They don't serve for gay people. In other words gay are not people in Mongolia. In a sudden accident I'm known by others I am a gay in January 2009. At that time on [one day] of every month there was organised a gay party among a few gay guys in a very secret environment.
Information about our party was known by others in a way and more than [number of] guys of [an organisation] found us and headed a severe attack to us. They hit me and broke my [teeth]. They took my photo by force and shared my photo and my name in social media. The guys abused me. Due to this case my family, relatives and friends all started to hate and abuse me and it was too hard for me. I started to receive too many messages, mails and calls which hate, abuse and threaten me so that I lived in hiding at my [partner’s] home and I closed and closed my phone, phone number, mail address, messenger address and ids. [In March], 2010 [a few] guys [of] [an organisation] which are named as nationalists came to my house by force at night and they beat me. They intentionally found my house and prepared wooden stick to beat me. They [injured me]. I injured much got stitches. I have still scars.
I had dinner with my roommate [at] [a] Restaurant, located [in] Ulaanbaatar on July [date], 2011, the waitresses saw us and threw saliva in our meals and called some guys of [an organisation], who are nationalists in Mongolia. They also beat us. They were [number of] unknown guys.
They attacked me and cut [me with a] knife. Due to it I also got stitches and injuries were too deep and swollen. All my relatives hate me and say to kill me and chased me out of my home. Due to all of these depression and stress I tried to commit suicide on October [date], 2012 [but] it was unsuccessful and I am still alive.
I called and applied to police and law office about all of the above attacks but police never accepted me and decide my cases. In contrast police lieutenant [name] and senior lieutenant [name] said and abused me as all of the cases are my fault. One of my relative uncle [name] visited my house on June [date], 2013 and he was drunk. He tried to kill me by knife and beat and kick my face and head. I got injury on my [eye] and now my vision is poor due to the injury. He couldn't kill me and threatened next time he kill me. At last I arrived in Australia to find a place to be alive. I came to Australia with a [temporary] visa. Now I couldn't go back to Mongolia. Because people who threaten me to kill are waiting for me in the country. I never go back to my home country. Please help me, give me my future life.
After the interview with the delegate, which took place on 15 November 2015, the applicant provided to the Department originals and translations of the following documents as summarised, correctly, in the delegate’s decision:
Document A
First Police Department of [District 2], Ulaanbataar, document dated [November] 2015 regarding assault of applicant at [a] bar [in] January 2009
Document B
Medical examination, examination date not provided, with diagnosis “injury of [deleted]” with note “He was released from [in] July to [July] 2011 due to illness” Document dated [November] 2015.
Document C
Second Police Department of [District 3]; Ulaanbataar, document dated [November] 2015 regarding assault on applicant [in] March 2010
Document D
Reference from [a medical facility] regarding injuries [to his body] and delivered in unconscious state [in] March 2010 with one week at [District 2] Hospital, document dated16.11.2015
Document E
Medical examination, examination date not provided, with diagnosis “Traumatic [deleted]”, With note that “he was released from [March] 2010 to [April] 2010 due to illness” document dated [November] 2015 with reference to Ordinance [deleted] of Nov 2013.
Document F
Reference from [a medical centre] certifying that the applicant was attacked by others on night [in] October 2010. Injured [deleted] and had intensive medical treatment at the hospital. Reference dated [date].11.2015
Document G
Reference from [a medical facility] stating that applicant was attacked by others and injured [and] was delivered to the hospital unconscious [in] July 2011 and received intensive medical treatment at the hospital.
The documents were produced between16 and 19 November 2015 and are held at folio 89.
Independent information
As indicated above, the Tribunal requested independent information from DFAT pertaining to various claims by a number of Mongolian applicants. DFAT responded on 11 August 2017 including providing information on LGBTI issues.[1] It provided as follows on those issues, including in relation to the ‘Mongolian context’:
[1] Australia: Department of Foreign Affairs and Trade (DFAT), “Mongolia – Response to Migration and Refugee Division, AAT, Country Information Request – Political, security, economic update – LGBTI – Women – Domestic Violence and Sexual Violence – Muslims - Dayar Mongol, Blue Mongol‟, 11 August 2017.
Mongolian context
2. Since 1990 Mongolia has been a liberal democracy with a robust and peaceful political system characterised by an elected President and Parliament. Transition of power has generally been smooth and swift. The constitution established in 1992 specifically grants freedoms of expression and religion and prohibits discrimination against ethnicity, race, age, sex, and social status. Mongolia is a signatory to eight out of the nine United Nations human rights treaties including the International Convention on the Elimination of All Forms of Racial Discrimination; Convention on the Elimination of All Forms of Discrimination against Women; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Convention of the Rights of the Child; and Convention on the Rights of Persons with Disabilities [Comment: despite good intentions, a lack of capacity within the civil service has limited implementation of these treaties, and related domestic laws]. Mongolia outlawed the death penalty in 2012.
3. The Mongolian economy is heavily linked to global mining commodity prices with China being the largest export market. While previous economic growth, largely driven by mineral exports, has helped the country reach lower-middle income status, Mongolia's poverty rate remains relatively high, with about one in three people living in poverty. More than half the population work in the services sector which accounts for around 50% of GDP, although this will decline when the large Oyu Tolgoi copper and gold mine reaches full production and contributes an estimated 30% of GDP. The IMF economic outlook indicates Mongolia will continue to see low economic growth until mining output increases and commodity prices improve.
4. In 2016, Transparency International scored Mongolia a relatively poor 38 out of 100 (0-highly corrupt to 100-very clean) for perceived public sector corruption. That said, Mongolia's international ranking was 86 out of 176 nations (1 being the least corrupt), up from a ranking of 116 in 2010. The Asia Foundation's Survey on Perceptions and Knowledge of Corruption 2017 indicates that 60.4 per cent of the respondents believe corruption has increased over the last three years. This survey indicated that political parties, the national government and the parliament are perceived by the public as being among the top 5 corrupt institutions. In the education sector, a 2017 report by the Asia foundation found that admissions to schooling is the most corrupt with bribery and nepotism widespread and required to enrol children in desired kindergartens, primary schools, and universities.
LGBTI issues
5. Meetings with stakeholders confirmed the UNDP 2014 report Being LGBT in Asia: Mongolia Country report remains largely valid. The report notes that:
·    there is no explicit legal discrimination based on sexual orientation (other than marriage laws) however more needs to be done to provide protection for the LGBTI community.
·    there is little sensitisation among civil servants, including health professionals and law enforcement officers about LGBTI human rights with the majority of the LGBTI community surveyed reporting abuse by law enforcement.
·    Mongolia is generally not open or welcoming to alternate and non-traditional sexual orientations and gender identity. The report finds that LGBTI people are not generally accepted by family members and 87 per cent of the LGBTI people surveyed are not “out” to their families.
·    Discrimination against LGBTI people in the area of employment was one of the most serious and frequent human rights violations. The LGBTI community faced challenges in finding employment, faced dismissal if status become known, and faced difficulty in obtaining redress for acts of discrimination in the workforce.
6. Mongolia’s only LGBTI human-rights lobby group, the LGBT Centre, was established in 2009 after repeatedly being denied registration for 2 years. The LGBT Centre released a 2017 report into LGBTI youth discrimination in Mongolia, key findings included continued high levels of discrimination against LGBTI youth from families, schools and health professionals.
7. The Mongolian Government has demonstrated an awareness of the problems facing the LGBTI community by explicitly including discrimination based on sexual orientation as a crime in the new Mongolian criminal code (effective 1 July 2017), although it is too early to judge the effectiveness of this law. The various interviews conducted by Post generally indicated that, with the introduction of the new criminal code, the legal structure offered adequate protection to the LGBTI community, if properly implemented. All stakeholders agreed that societal attitudes combined with a lack of training for public servants, including for health professionals and law enforcement officers, would make implementation of legal protections difficult. This view was confirmed by the Police Department’s crime prevention unit who indicated that very few police were sensitised or trained to deal with the LGBTI community, although the police have an active program of training officers in this area with 100 officers currently being trained by the LGBT Centre and international experts.

The US Department of State in its Mongolia 2017 Human Rights Report provided the following information concerning violence and discrimination on the basis of sexual orientation and gender identity and HIV and AIDS stigma:
The new criminal code prohibits discrimination based on sexual orientation, gender identity, nationality, language, race, age, gender, social status, professional position, religion, education, or medical status. Violators are subject to a maximum penalty of five years’ imprisonment. As of September no cases had been prosecuted under the new law. The law permits persons who have had gender reassignment surgery to have their birth certificate and national identity card reissued to reflect the change, and the LGBT Center reported that transgender persons successfully applied for new identity cards under this provision.
NGOs continued to report that LGBTI individuals faced violence and discrimination both in public and at home based on their sexual orientation or gender identity. There were reports LGBTI persons faced greater discrimination and fear in rural areas than in Ulaanbaatar due to less public awareness and limited online media accessibility in rural areas. The LGBT Center received a number of reports of violence against LGBTI persons, most involving young LGBTI persons who either came out to their families or were discovered by their families to be LGBTI.
The LGBT Center noted that the new criminal code increased police and public awareness of abuses faced by the LGBTI community, and specialized police training on responding to hate crimes increased police capacity to respond to problems affecting LGBTI persons. There were still, however, cases involving police harassment of LGBTI victims of alleged crimes. Charges were frequently dismissed when a crime victim was an LGBTI person.
There were reports of discrimination against LGBTI persons in employment (see section 7.d.).
HIV and AIDS Social Stigma
Although there was no official discrimination against those with HIV/AIDS, some societal discrimination existed. The public generally continued to associate HIV/AIDS with same-sex with sexual activity, burdening victims with social stigma and potential employment discrimination.[2]
[2] US Department of State, Mongolia 2017 Human Rights Report, pp.18-19.
Hearing, credibility, findings and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437 (Randhawa).
In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Mongolia and accordingly his claim will be assessed against Mongolia.
The applicant indicated in the hearing that he grew up with his grandparents. In [year], when he finished his secondary schooling, he moved to the capital and lived with his parents until he left for [Country 1] in 2004. The applicant started studying a [course]. He suspended these studies when he was in [Country 1] from 2004 until 2008 and returned to his [course] on return to Mongolia. He finished those studies in [year]. During his studies the applicant started a [business] with a friend. The applicant had become familiar with the particular [product] that he sold when he worked in a [workplace] in [Country 1]. He imported the product from [Country 1].
The applicant responded to questions of the Tribunal in the hearing describing him growing up gay and feeling different. He interacted with girls more than boys. The applicant gave evidence in the hearing consistent with his written claims as to forming a relationship with [Mr A] in [school]. When the applicant moved to the capital he was very discreet in relation to his sexuality. He became part of a group of gay individuals who would meet in different locations about once a month. The applicant gave evidence as to the gay environment in [Country 1]. The applicant provided the names and ethnicity of individuals with whom he was in relationships in [Country 1], consistent with his written claims.
On return to Mongolia in 2008 the applicant re-joined the group of gay individuals that he had previously been a part of before travelling to [Country 1] who would meet once a month. The applicant indicated that his parents and family found out he was gay in about 2010. This was following an incident where his mobile phone was taken and personal information relating to his sexuality was posted online. The applicant says that he is not in regular contact with his father who does not approve of his sexuality. He does speak to his mother once or twice a month. Whilst she does not approve of the applicant’s sexuality, she has not abandoned him.
The applicant in the hearing referred to multiple instances of harm he experienced in Mongolia based on his sexuality. He referred to incidents in which he was physically harmed and sought to indicate to the Tribunal scars on his body claimed to be as a result of these incidents. The applicant referred to one incident where police were called to a party that the applicant was attending and the police physically assaulted the applicant.
The Tribunal asked the applicant about his gay lifestyle in Australia. The applicant indicated that he mainly interacts with fellow gay Mongolians and [Country 1 nationals]. They meet in city bars. The applicant indicated that he has had three relationships, two with [Country 1 nationals] and one with a Mongolian. The applicant indicated that he has remained friends with two of his former partners. The applicant indicated that he has infrequently been to gay bars in [a location]. He referred to a degree of reticence in attending these venues or being too open in relation to his sexuality.
The Tribunal discussed with the applicant in the hearing concerns it had with the various documents provided by the applicant following the interview with the delegate of the Minister. The Tribunal noted to the applicant that within a week of being requested to provide supporting documents, the applicant had obtained from Mongolia documents from a variety of bodies, being various police offices, hospitals and medical providers. They were not documents that had previously existed but had been generated by those bodies after the interview with the delegate. They recounted various events relating to the applicant in terms of complaints to police and medical treatment that had happened to the applicant five to seven years previously.
The Tribunal expressed very considerable surprise and scepticism that the applicant would, in the course of about a week, have been able to obtain such documents from relevant authorities in Mongolia. In response, the applicant indicated that there is a central body in Mongolia from which the documents were obtained. The Tribunal noted to the applicant that this was not consistent with the fact that the various documents were on different letterheads and in different formats. The applicant maintained that there was a centralised body that facilitated ready access to the supporting documents obtainable through computer systems. The applicant indicated that he was told by the delegate to provide documents within seven days and he obtained them in this timeframe. The Tribunal indicated to the applicant independent information as to the ready ability to obtain fraudulent documents in Mongolia and the Tribunal could form the view based on the very difficult to accept speed with which the documents had been obtained that they had been produced fraudulently by a group or individuals expert in the provision of fraudulent documents. The applicant maintained the genuineness of the documents.
The Tribunal assesses the evidence and credibility of the applicant in relation to claims that he is homosexual and claims of past harm.
The applicant was detailed, spontaneous and broadly consistent with written claims as to his sexuality. He provided convincing detail of growing up feeling that he was different and being attracted to boys. The applicant provided consistent evidence in the hearing as to his relationship with a boy at school and relationships in [Country 1].
The Tribunal has concerns with the genuineness of the documents provided by the applicant following the interview with the delegate. Whilst the delegate only provided seven days to provide documents, the Tribunal does not consider there is any reasonable basis that the various documents from different bodies could have been obtained within such a short time frame. The Tribunal notes the ready ability with which fraudulent documents can be obtained in Mongolia. The Tribunal is not satisfied that the documents are genuine.
The willingness of the applicant to provide fraudulent documents undermines his overall credibility. However, it does not result in the Tribunal disbelieving that the applicant is homosexual based on other significantly convincing evidence in this respect.
The Tribunal takes into account the applicant’s oral evidence to both the delegate and in the Tribunal hearing in relation to claims of harm in Mongolia. Notwithstanding the fact of the applicant providing fraudulent documents to support his claims, based on the applicant’s oral evidence, the Tribunal is satisfied that there have been at least some occasions on which the applicant has been harassed and physically assaulted in Mongolia based on his sexuality. The Tribunal is also satisfied that vindictive individuals utilised information on the applicant’s smart phone relating to his sexuality which they posted on social media to embarrass the applicant. The Tribunal also accepts that there were instances where police acted in an unhelpful and intimidating way towards the applicant.
Whilst the Tribunal is not satisfied as to the extent of attacks and physical harm against the applicant as he has detailed in his written claims and indicated in supporting documents, the Tribunal accepts that there have been at least some instances of intimidation and physical harm suffered by the applicant as a result of his sexuality.
The Tribunal notes that a negative attitude by authorities in Mongolia to the applicant’s sexuality and intimidation and physical harm from society in general is not inconsistent with independent information as to the treatment of homosexuals in Mongolia, albeit that there have been some steps by the government to improve the situation for homosexuals.
The Tribunal does not consider that the delay in the applicant seeking protection or his brief temporary return to Mongolia undermines the fear of harm of the applicant in returning to Mongolia based on the impact, over time, of him seeking to live openly as a homosexual.
The Tribunal is satisfied that the applicant would return to Mongolia as a homosexual and would wish to enter into relationships with men. The Tribunal considers that the applicant would be reasonably discreet in relation to such relationships. That discretion would be because the applicant would be fearful of the consequences should he be more open about his sexuality. The Tribunal considers it not unlikely, notwithstanding discretion, that others in Mongolia are likely to become aware of the applicant’s sexuality, as they have in the past.
Given the negative attitudes towards homosexuality in Mongolia, the Tribunal is satisfied that the applicant faces a real chance of both serious and significant harm, as defined in the Act. Harm would include the real chance of physical harm, as the Tribunal accepts that he has in the past.
In terms of considering the applicability of the refugee criterion, the Tribunal notes s.5J(2) of the Act indicating that a person does not have a well-founded fear of persecution if effective protection measures are available to the person in the relevant country. Section 5LA further defines ‘effective protection measures’. The Tribunal notes that the independent information contained in this decision could suggest that the legal framework recently introduced in Mongolia in relation to homosexuality offers adequate protection to the LGBTI community.
Given the existence of these laws, for the purpose of this decision only, and acknowledging that the extent to which there is practical adequate enforcement of those laws is not yet clear, the Tribunal would find that there are effective protection measures available to the applicant in relation to his sexuality and therefore he is not taken to have a well-founded fear of persecution. The Tribunal notes that under the definition of effective protection measures, police need to provide, not perfect protection, but reasonably effective protection.
This is not a finding that is determinative of the outcome in this matter because, in any event, the applicant would satisfy the complementary protection criterion, in the Tribunal’s view. This is because a different and stricter test applies in relation to effective protection as set out in s.36(2B)(b) of the Act. Under that section, protection must reduce the risk of harm to less than a real risk for the purpose of the complementary protection criterion. This is a more stringent test than s.5LA(2)(c).
The Tribunal is not satisfied on the evidence, given attitudes towards homosexuality in Mongolia, consistent with the applicant’s past experiences as accepted by the Tribunal, that the legal framework and police protection would reduce the risk of significant harm to the applicant based on his sexuality to less than a real risk. This is because there is the potential for the applicant to face physical harm before the involvement of police, who would be likely involved after the harm has occurred, or due to the operation of the legal system, which would not operate until after the harm had occurred. The Tribunal finds that the applicant would face a real risk of degrading treatment or punishment as well as cruel or inhuman treatment or punishment within the terms in s.36(2A) of the Act.
The Tribunal does not consider that the applicant can escape a real risk of harm by relocating because the risk of harm would be prevalent throughout Mongolia, and therefore s.36(2B)(a) does not apply.
The Tribunal considers that the risk to the applicant is based on a particular characteristic, his homosexuality, and therefore the risk to him is not a risk faced by the population generally rather than the applicant personally, and therefore s.36(2B)(c) does not apply.
The Tribunal is satisfied that the applicant does not have a right to enter and reside in any country other than Mongolia.
In summary, the Tribunal finds that the applicant faces a real risk of significant harm in Mongolia for reasons of his homosexuality.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.
David McCulloch
Member

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

[2019] AATA 3430

22 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice