1604099 (Refugee)

[2019] AATA 5704

1604099 (Refugee) [2019] AATA 5704 (22 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1604099

COUNTRY OF REFERENCE:                   Mongolia

MEMBER:Christopher Smolicz

DATE:22 May 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 May 2019 at 1:32pm

CATCHWORDS
REFUGEE – protection visa – Mongolia – domestic violence – sexual violence – fears serious harm by uncles – family conflict – property dispute – inconsistent evidence – police corruption – fear of harm not well-founded – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 438, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MZAFZ v MIBP [2016] FCA 1081
SZTYV v MIBP [2018] FCA 1076

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Mongolia, applied for the visa on 3 December 2014 and the delegate refused to grant the visa on 26 February 2016.

3. The applicant appeared before the Tribunal on 30 April 2019 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.

5. The applicant was represented in relation to the review by her registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Section 438 certificate

11. As a preliminary issue the Tribunal notes that there are two certificates issued by a delegate of the Minister under s.438 of the Act located on the Department of Immigration and Border Protection’s file which have been provided to the Tribunal.

12. Section 438 permits the Minister to certify that the disclosure of information may be contrary to the public interest for any reason specified in the certificate: “that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed”.

13. The Tribunal has considered the certificates and the reasons why they were issued in respect of the specified folios. The Tribunal provided the applicant with copies of the certificates.

14. For the following reasons the Tribunal has formed the view that the certificates are not valid. The first certificate was issued pursuant to s.438(1)(a) and states that “disclosure of this information would be contrary to the public interest because the aforementioned folios contain information relating to an internal working document and business affairs”. The Tribunal is of the view the certificate is invalid, as no public interest reason has been properly specified on the certificate. Indeed in MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) it was held that a s.438 certificate which had been placed on documents on the basis that they contained “internal working documents” was invalid, as this is not a sufficient basis for public interest immunity either at common law or under statute.

15. The second certificate was issued pursuant to s.438(1)(b) and states that “information was given to an officer of the Department of Immigration and Citizenship in confidence or contains information about a third party…this information should not be disclosed to the applicant or the applicant’s representative because it contains documents affecting personal privacy.” The Tribunal is of the view that s.438(1)(b) doesn’t extend to information that simply relates to a third party. The Tribunal also notes that whether a document is impressed with the necessary quality of confidence required for s.438(1)(b) is a matter for the Tribunal to decide on its merits.[1] For documents or information to have been given in confidence, the information must have the necessary quality of confidentiality. The Tribunal is of the view that the folio the subject of the certificate (a Translator’s identification card) is not impressed with the necessary quality of confidence required for s.438(1)(b).

    [1] SZTYV v MIBP [2018] FCA 1076 (Steward J, 20 July 2018) at [42].

16. The Tribunal described to the applicant the documents which are the subject of the certificates. The Tribunal explained to the applicant that in conducting this review the Tribunal is however of the view that the documents the subject of the certificates are not relevant to this application.

17. The issue in this case is whether the applicant meets the refugee criteria or comes within Australia’s complementary protection obligations because she fears the Mongolian authorities will not protect her as a victim of domestic/family violence.

18. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Summary of substantive claims

19. The applicant is [age]. She was born in  [Province 1], Mongolia. In 2010 she completed a Bachelor [degree] and commenced working as a [Occupation 1]. She arrived in Australia [in] October 2014 as the holder of a [temporary] visa. Since arriving in Australia she has married an Australian citizen (Mr [A]) and intends to apply for a partner visa.

    Summary of substantive claims

20. The applicant fears being harmed by her [uncles] and other family members on return to Mongolia. She fears the Mongolian authorities will not protect her as a victim of domestic/family violence.

21. The applicant claims that when she was a young child her mother became ill and was hospitalised she was left in the care of her grandmother. In the period 2000 to 2007 her grandmother lived next door to her [uncle]. The uncle was an alcoholic. The applicant was often left alone at home. Between the ages of [specified] she was raped and physically assaulted by one of her [uncles]. As a consequence of the sexual assault she developed medical problems which required treatment. When she attempted to run away the uncle would physically assault her. The uncle would threaten to kill her if she said anything about the sexual assaults. The uncle’s wife would also threaten the applicant. In January 2006 the uncle’s wife asked the applicant to clean her house. When she finished she was falsely accused of stealing valuables and the uncle’s wife threatened to send her to jail.

22. The applicant declared that in [year] while on a business trip her mother had a serious [accident]. She was given an apartment and [a sum of money] as compensation. Her  [uncles] and one of the uncle’s wives spent the money and sold the applicant’s apartment which the mother had put in her name. The applicant was forcibly told to sign the transfer or she would be killed.

23. In July 2012 the applicant asked one of the uncles to give back her mother’s money. When she told the uncles she would go to court they tied her up, put her in the boot of a car and beat her and left her to die. She was rescued by a stranger. Two days later she received a threatening phone call.

24. She had been renting different rooms since October 2006. She was working, paying the rent and her university fees while studying full time.

25. In September 2010 [her] uncles located her at her place of work and she had to hide.

26. [In] August 2012 she travelled to [Country 1] to [study]. She had to return to Mongolia because she had no more money. When she returned to Mongolia she had to constantly change her place of residence in order to escape from the uncles.

27. The applicant claims that Mongolian government and other officials are corrupt. Protection is not available to her because she does not have enough money to pay a bribe. When she complained to the police about her uncle in the past she was assaulted by the uncle. Other times the police would come and take away the uncle but he would be released the next day.

28. When she and her grandmother lodged four written complaints with the police, the inspector put them in the bin and said that they could not do anything and the uncle needed treatment for alcoholism at their own expense. She claims the law is not exercised for alcoholics in Mongolia. As long as they do not commit murder they are released after 36 hours of detention.

29. In July 2012 the police did not accept her complaint when she was assaulted and lost consciousness.

30. The applicant claims her uncles have powerful friends who are high in the Mongolian government and also some non-government officials.

31. She fears the Mongolian authorities will not protect her as a victim of domestic violence. The applicant’s agent made submissions referring to domestic violence laws. The agent noted that in 2005 new law combating domestic violence was introduced in Mongolia. The agent acknowledged that although the law was an important step forward in advancing women’s rights, human rights organisations in Mongolia are concerned that the law needs to be further strengthened to adequately provide protection to victims of domestic violence.

    Country information

32. DFAT provided the following information about domestic violence and sexual violence in Mongolia:

    Mongolia has a high incidence of domestic and sexual violence, reflecting an ingrained social acceptance - the police department have cited social attitudes as one of the most difficult factors impacting on their work to combat domestic violence. In the first half of 2017, there were 721 registered domestic violence crimes, down 5.6% on the same period in 2016. Of these reported crimes 92% of the victims were women. Between 2010 and 2016, there were 104 deaths out of the total reported 5,537 domestic violence cases. The police believed the incidence of domestic violence to be slightly greater in rural areas, which comprised 45% of the population and accounted for 43.8% of total reported cases in 2017. The police department emphasised that they estimated that only one fourth of domestic violence crimes are officially reported.

    Mongolian Government have recently been active in raising awareness of domestic violence through the debating and subsequent passing of a new law on combating domestic violence (effective since 1 February 2017). This law strengthened the previous law on domestic violence including by expanding types of incidents that are classified as crimes, clarifying police department roles and responsibilities, providing physical protection for victims, establishing one-stop services for victims, and clarifying penalties. Whilst many of the perpetrators of the 721 domestic violence cases in 2017 have been charged under the new law, it is too early to judge the effectiveness as court cases can take up to 12 months. The Mongolian Police has a new division in charge of preventing crimes, explicitly including domestic violence, which was established March 2017, and is responsible for training officers in the new law. The Government has started a training program across education, health and other relevant Ministries to assist civil servants understand and respond appropriately to domestic violence issues.

    ….

    The Constitution of Mongolia (1992) grants all Mongolian women and men equal rights in the political, economic, social, cultural life and family relations. Fourteen other laws on social welfare, labour, health, education, political parties, land allocation, domestic violence and human trafficking further protect women’s rights in Mongolia. Mongolia is a signatory to all major international conventions on women’s rights and gender equality.[2]

    Tribunal hearing

    [2]  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 [10-13] and p.10.

33. The Tribunal is acutely aware that aspects of the applicant’s claims are sensitive and of a prerenal nature. The Tribunal advised the applicant that it has considered her statement of claims accepts that she was a victim of sexual assault and did not require her to provide further details about the conduct she was subjected to as a child.

34. The Tribunal asked the applicant why she travelled to Australia in 2014. The applicant said she was looking for a brighter future and wanted to escape from Mongolia because she was a victim of domestic violence since she was a young child. She was abused by her [uncles]. The applicant said that the uncles who abused her are still alive and continue to threaten her. She was last assaulted in July 2012. The applicant said that she threatened to report the uncles to the police but did not have the courage to make any report.

35. The uncles took her mother’s two bedroom house but she did not commence any legal proceedings. The police would lock up one of the uncles when he was drunk and release him when he sobered up.

36. The applicant said she could relocate to a different part of Mongolia and move away from her uncles but not for her whole life. Mongolia is a small country and she fears her uncles would be able to locate her because they have lots of friends who are dangerous and can hire people to find her.

37. The applicant said that her former boyfriend sent her a message from Mongolia in September 2014. She claims her uncles sent people to her former boyfriend’s home looking for her and claiming they still want to kill her. According to the message she claims people came to her younger sibling’s home and were asking questions. The applicant provided a copy of the message in support of her application. The Tribunal asked the applicant if she could explain what prompted the threats made in 2014 in circumstances where she had already left Mongolia. The applicant said that the people did not know she had left.

38. The Tribunal asked the applicant why she can’t go to the police and report threats being made by the uncles. The applicant said that the police are corrupt in Mongolia; she is poor and cannot afford to pay a bribe. The Tribunal noted that she was now married to an Australian citizen and would not be returning a single women. The applicant said it would not make any difference if her husband returned to Mongolia with her.

39. The Tribunal asked the applicant why she believes the uncles would want to harm her in the future. The applicant said she did not know why but they are dangerous and always wanted her to die.

40. The Tribunal referred the applicant to her written claims at question 49 and notes that she claims that she did in fact make a written complaint to the police when she was threatened and assaulted in the forest. The Tribunal observed that her evidence seemed inconsistent with her written claims. In response the applicant said there could have been an issue with the interpreter at the time.

41. The applicant claims the uncles want to harm her because they hate her. She claims they are wealthy and are connected to people in government.  The Tribunal noted her statement was vague and asked if she could provide further detail. The applicant maintained the uncles were part of a criminal group that had money. She did not disclose this information in her statement, but claims to have mentioned it in her interview, however the interpreter did not mention it.

42. The applicant maintained that she wanted to remain in Australia because she felt safe and was treated like a human being.

    Findings

43. The Tribunal accepts that in the period [year] to [year]  the applicant was a victim of sexual assault and physical violence carried out by her  [uncles]. The Tribunal finds that the uncles’ conduct was criminal in nature and resulted in the applicant sustaining physical and emotional harm. The Tribunal accepts that this experience has left the applicant holding a subjective fear of her uncles in Mongolia.

44. The Tribunal finds however that the applicant has never reported the uncles’ conduct to the police and she has never been refused police protection in Mongolia. The Tribunal found the applicant’s claim that her uncles have political and/or criminal connections vague and lacking in detail. The applicant was unable to explain who the uncles knew and how she knew they had such connections.

45. The Tribunal also accepts that the applicant had a dispute with her uncles over the ownership of her mother’s property. The Tribunal finds this was a personal dispute. The Tribunal notes that the property has now been sold and the applicant did not commence any legal proceedings in Mongolia.

46. The Tribunal does not however accept the applicant’s claim that in July 2013 she was abducted and placed in the boot of a car, taken to an unknown location, beaten, left unconscious and was saved by a stranger who called an ambulance. The Tribunal does not accept the applicant received threatening phone calls two days after the incident. The Tribunal finds the applicant’s evidence vague and inconsistent. For example, at the hearing the applicant claimed all she remembered was waking up in a hospital which seems inconsistent with her claim that she recalls being saved by a stranger who called an ambulance.  The applicant claims she was admitted to hospital but did not provide any medical records from July 2012 in support of her claim. At the hearing she claimed she did not report the uncles’ conduct to the police however in her written statement she claims to have made a police report. The Tribunal has not been provided with any police report. The Tribunal has had regard to the nature and degree of the inconsistent evidence, and does not accept the applicant’s claim that the inconsistency can be attributed to an interpreting error. When questioned at the hearing why she thought her uncles wanted to harm her in the future the applicant’s evidence was vague and lacking in detail and she was only able to say that the uncles hated her and feared she would report them to the police.

1. The Tribunal finds that, after the applicant completed her studies and obtained a bachelor’s degree, in 2010 she commenced work for a  [company] as a [Occupation 1]. She was able to freely travel to [Country 1] where she commenced a [course] in the period August 2012 to March 2013, then voluntarily returned to Mongolia and resumed her employment.

2. The Tribunal does not accept that the uncles sent people to look for her after she departed Mongolia and travelled to Australia in 2014. In making this finding the Tribunal notes that the applicant was unable to provide a satisfactory explanation why the uncles would want to kill her in 2014 in circumstances where she had left the country, never lodged any police complaint or initiated any legal action.

3. The Tribunal finds that the threats and harm experienced by the applicant from 2000 to 2007 were of a personal / criminal nature and were not convention related.[3] The Tribunal further finds that the applicant was not denied police protection for a convention reason. The Tribunal finds that since the applicant completed her studies the threats of violence and the sexual and physical abuse ended and the applicant has been able to live independently, travel and obtain skilled employment as a [Occupation 1]. She has not taken any legal action to pursue her mother’s property or seek criminal retribution against the uncles and there is no suggestion that she intends to do so in the future. To be clear the Tribunal does not accept the applicant received any threats from her uncles after 2007. The Tribunal notes that the applicant left Mongolia over four and half years ago. The Tribunal finds that the applicant’s claim that her uncles will continue to threaten her and cause her harm in the future is mere speculation.

   [3] The applicant’s agent made a submission before the Department dated 3 August 2015 in which it was accepted the claims were not convention related.

4. The Tribunal has had regard to the applicant’s profile and personal circumstances and the country information detailed above and finds that the applicant will have access to state protection if she returns to Mongolia in the reasonably foreseeable future.

5. Having considered the applicant’s claims individually and cumulatively the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm from her uncles (family) if she was to return to Mongolia in the reasonably foreseeable future. The Tribunal finds that her fear of harm is not well-founded.

6. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   Complementary protection

7. The Tribunal has also considered the applicant’s claims under the complementary protection criterion.

8. As detailed above the Tribunal accepts that the applicant was a victim of sexual assault and physical violence perpetrated by her [uncles] in a [period]. The Tribunal finds that the applicant has not received any further threats from the uncles.  The Tribunal also accepts that the applicant had a legal dispute with her uncles over her mother’s estate following her death. The Tribunal does not however accept the applicant’s claim that in July 2013 she was abducted and placed in the boot of a car, taken to an unknown location, beaten, left unconscious and was saved by a stranger who called an ambulance because she threatened to take legal action against the uncles. The Tribunal finds that the applicant has not made a police complaint against the uncles and has not initiated any legal proceedings in Mongolia. There is no evidence that she has been denied police protection. The Tribunal has had regard to the applicant’s personal circumstances as an educated, married women and does not accept that she will be denied police protection in the future. As detailed above the Tribunal finds that the applicant’s claim that her uncles will continue to threaten her and cause her harm in the future is mere speculation.

9. In conclusion 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 suffer significant harm.

10. Accordingly, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of her life; the death penalty will be carried out on the applicant; or the applicant will be subjected to cruel or inhuman treatment or punishment; or the applicant will be subjected to degrading treatment or punishment.

11. 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).

12. 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 criteria in s.36(2).

    DECISION

13. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Christopher Smolicz
    Member