1602065 (Refugee)

The applicant sought a protection visa, claiming persecution in Mongolia due to his homosexuality. The delegate of the Minister refused the application, and the applicant sought review by the Tribunal. The Tribunal considered the applicant's claims, including allegations of physical attacks by nationalist groups and a lack of state protection, as well as issues concerning the credibility of the applicant and supporting documentation.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) (the Act), which requires a well-founded fear of persecution for reasons of membership of a particular social group, and alternatively, whether he met the complementary protection criterion under section 36(2)(aa) of the Act. This latter criterion requires substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Mongolia, there is a real risk of significant harm.

The Tribunal found that the applicant did not meet the refugee criterion under section 36(2)(a). However, after considering the evidence and relevant country information, including information on LGBTI issues in Mongolia, the Tribunal was satisfied that the applicant met the complementary protection criterion under section 36(2)(aa). The Tribunal reasoned that, even if the applicant's claims regarding persecution as a homosexual were not fully substantiated to meet the refugee definition, there were substantial grounds to believe he would face significant harm if returned to Mongolia, given the lack of effective state protection and the real risk of persecution faced by homosexual individuals in that country.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(aa) of the *Migration Act 1958*.