1826715 (Refugee)

1826715 (Refugee) [2019] AATA 3868 (22 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1826715
COUNTRY OF REFERENCE:                  Mongolia
MEMBER:David McCulloch
DATE:22 February 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration and directs that the applicant is a refugee within the meaning of subsection s.5H(1) of the Act.

Statement made on 22 February 2019 at 10:12am

CATCHWORDS
REFUGEE – protection visa – Mongolia – particular social group – individuals charged with a serious criminal offence – allegations as to the commissioning of murder – abuse of prisoners and detainees – deficiencies in the prosecutorial and judicial system – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 411, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 September 2018 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 12 July 2018.
The applicant appeared before the Tribunal on 5 November 2018 and 8 January 2019. The Tribunal was assisted with the use of an interpreter in the Mongolian language.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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 matter should be remitted for reconsideration with the direction that the applicant is a refugee within the meaning of subsection s.5H(1) of the Act. Issues in relation to exclusion under s.5H(2) may need to be separately considered.
Background and claims
The applicant provided to the Tribunal a copy of the decision of the delegate which indicates the following in relation to his migration history:
Date              Event details
05/05/2016      Applicant granted offshore Tourist (subclass 600) visa
[Day]/07/2016    Applicant arrived in Australia on a Tourist (subclass 600) visa
[Day]/08/2016    Applicant departed Australia on a Tourist (subclass 600) visa
[Day]/02/2017    Applicant arrived in Australia on a Tourist (subclass 600) visa
14/05/2017      Applicant lodged an onshore Tourist (subclass 600) visa application.
Associated Bridging visa A granted on 23/05/2017
20/05/2017      Applicant's Tourist (subclass 600) visa ceased
29/01/2018      Bridging visa A cancelled under s109
13/02/2018      Applicant's Tourist (subclass 600) visa application refused
21/02/2018      Applicant lodged Permanent Protection visa application.
Associated Bridging visa C granted on 05/03/2018
08/05/2018      Bridging visa C cancelled under s109
08/05/2018      Applicant transferred to [immigration detention]
10/05/2018      Applicant withdraw Permanent Protection visa application
11/05/2018      Applicant became an unlawful non-citizen
15/05/2018      Applicant signed a 'Request for Removal from Australia' form
16/05/2018      Applicant verbally withdraw the Request for Removal from Australia
12/07/2018      Applicant lodged Permanent Protection visa application.
Associated Bridging visa E refused on 16/07/2018
24/07/2018      Administrative Appeals Tribunal affirms the Bridging visa E refusal decision
The application forms for the protection visa indicate the following in relation to the applicant. The applicant was born on [date] in Ulaanbaatar, Mongolia. The applicant is a Buddhist. The applicant is separated but does not provide the date of the relationship or of separation. In the hearing the applicant said that he currently has a long-term partner living in Mongolia. The applicant left Mongolia legally. The applicant obtained a visa to [Country 1] which was applied for on 4 November 2013. Since November 2013 the applicant has travelled to a variety of other countries including [Country 1], [Country 2], [Country 3], and [Country 4].
The Tribunal notes the following countries visited by the applicant in the period after May 2015: [City 1, Country 2] in January 2016, [Country 4] for travel and medical treatment between April and July 2016, [City 2, Country 1] between August and December 2016, [City 1, Country 2] between December 2016 and January 2017, [City 2, Country 1] in February 2017 and [City 1, Country 2] in February 2017.
The applicant completed high school in [year]. Between [1987] and [1991] the applicant completed a course as [Occupation 1]. The applicant worked as [Occupation 2] between January 2007 and January 2008. Between January 2008 and January 2012 the applicant was unemployed and living on savings. Between January 2012 and January 2013 the applicant was an [Occupation 3] for a company in [Industry 1]. Between January 2013 and May 2017 the applicant was [an office bearer] in charge of [a business] based in Ulaanbaatar.
The applicant indicates that he has previously been convicted twice in Mongolia listing relevant dates (would appear to be of detention) between [1991] and [1994] and [1994] to [2005].
The applicant provided the following statements to the Department setting out his claims for protection (not corrected for spelling or grammar):
I, [the applicant], was born on [date] in Ulaanbaatar, Mongolia. I am a citizen of Mongolia and I am currently residing at [Australian address].
I am an applicant for an onshore protection visa (subclass 866, class XA) and currently hold [Bridging Visa C].
In 1994, I was very young, just [age] years old. I was very close to my younger brother [Mr A], who is [number] years younger. On [date], my younger brother [said] he met his old friend. His old friend was drunk and demanded [alcohol] from my [brother]. I saw my brother refusing to buy his friend [alcohol] as he was very drunk. I said to his friend that he was very drunk so we won't buy [alcohol] for him, so please go home. But he started arguing with me. Our conversation shortly turned into an argument and during the brawl he punched me. And then my younger brother told him that he punched an innocent person and during brawl my brother hit him in the face, so his friend fell on the ground. While falling, he hit the ground by his head and later died in hospital. Because of this incident, I and my younger brother were accused for murder. I did not kill the man, but I was there in company of my brother. Two brothers of one family were accused for murder and at that time, because my younger brother's wife expecting a child, I pleaded guilty for manslaughter.
So this way, and also under the mounting pressure from police, I was convicted for [number] years of imprisonment. I spent time in jail from [1994] to [2005]. I was released early because of my exemplary behavior during my jail time.
Since I was released in 2005, I started working and engaged in business activities. From 2005 to 2008, I worked for [Company 1] as [Occupation 4].
From 2010 I started my company "[Company 2]". [I] was working hard to establish myself as a businessman. My business was doing well and I was quite successful in my business.
In May 2014 [Mr B], who was married to our mother's relative, borrowed from my company MNT [amount] (about AUD[amount] at the time) for 6 month together with his wife [Ms C]. Even though they did not meet the requirements for loan, I decided to help them by giving a loan as I trusted them.
But after this, they missed the loan interest deadline three times, did not fulfil the obligations under the loan contract. It showed him as a person with no financial discipline. So I started calling him demanding to meet their obligations, also to remind them to pay the loan on time. But [Mr B] didn't answer my phone calls. For some time, he was not reachable through his phone. He even changed his phone number, trying to avoid me at all cost. While chasing him, I found out that he gained money from other people in fraudulent ways and he tried to avoid his creditors too. His whereabouts was unknown to anyone. Because of that I had to talk to [Mr B]'s close friend in order to reach [Mr B]. At that time I said to [Mr B]'s friend to tell [Mr B] that I very was frustrated, and that I borrowed him money despite he did not satisfy my company loan requirements. In frustration I yelled and said that if he does not pay my money straight away I will kill him. This is because all my efforts to reach, talk and meet [Mr B] were failed, so I agreed [Mr B]'s friend to record my conversation. I hoped that my message will reach him when he listens to this recording he will call back. I knew that [Mr B]'s friend was recording me on phone.
So after this, eventually in November 2014, he paid me back in full. However, [Mr B] did not come to me or speak to me; instead his wife brought the cash money in to my office.
[Several] months after this, [in] 2015, I was arrested by police. I found out that [Mr B] was killed on the night of [date] 2015, around 1-2 am. He was found stabbed to death in his [apartment].
On this night of this murder I was not in Ulaanbaatar, Mongolia. On the night of murder, [I] was on my way to [City 3], [Country 3] to visit and worship in a [temple], which was organized by a Mongolian travel [agency]. [A large number of] fellow worshippers that were in my tour group, along with travel guide can witness that on that day I was in [Country 3]. I even remember of becoming the luckiest person among tour group by winning a competition to be awarded free to travel [to the temple] again in future.
So, [when] I returned from the tour, [police] arrested me as a suspect for this crime. Police accused me that I organized [Mr B]'s murder, [and] I was detained and accused for murder as per the Clause 35.3 of the General Part of the Criminal law of Mongolia and Clause 91.2.11 the Special Part of the Criminal Law of Mongolia. [During] the investigating process, the police accused me solely based on the phone recording as police had obtained the copy of the phone call recording
During my detention, police interviewed me 2-3 times and each time I tried to defend myself and explained that I was not even in Mongolia at the time of the murder. Moreover, I tried to defend myself by claiming that the murder of [Mr B] has nothing to do with me. I told them that I did not contact or meet [Mr B] since he paid me back and I had no dealings with him and that I had no reason to kill him. But despite that police insisted that I organized the murder solely based upon the phone recordings and also because of their prejudice based on my previous criminal record.
[In] July 2015, [the] Court found that there is no proof that I committed this murder and I was released on bail. I was released as the police could not prove that I killed [Mr B]. But, still, I had to hire a lawyer to prove that I was not guilty. I found out that a person named [Mr D] (not sure about his surname) was arrested for [Mr B]'s death.
After the release I got back to my business and travelled overseas a few times. Then I came to Australia [in] July 2016. After spending about a month I went to [Country 1], [City 1, Country 2] and [City 4, Country 2]. And I returned to Australia [in] February 2017.
In January 2018, I found out that the Police wanted to question me again, and they were looking for me. I heard that the reason of looking after me is that I and [Mr D] knew each other since 1990 and that the police think that I paid [Mr D] to kill [Mr B]. Since then I became afraid. I feared that if I go back to Mongolia, the police will put me in detention and I will be in remand custody for a long time (they have right to detain me up to 2.5 years) until they finalize the case. I do not understand why police seeks me despite [Mr D] has already pleaded guilty for murder. I heard that [Mr D] is now free on bail and waiting for trial and the prosecutors to finalise the case.
When my visitor visa was coming to an end, I wanted to extend my visitor visa. I wanted to apply for extension. I used a service of a [migration agency] so they lodged an application for a visitor visa on 14 May 2017 which was later refused 13/02/2018.
And then I found out that people in these kinds or circumstances should apply for a protection visa. And therefore I lodged my application for a protection visa on 21 February 2018 and was granted Bridging visa C on 05 March 2018.
I fear that if I go back to Mongolia, Mongolian Police will detain me for considerable time and falsely accuse and convict me in organizing murder of [Mr B] and paying [Mr D] to kill [Mr B]. Police will not let me go free on bail during their investigation as they think that I will compromise the investigating process and influence witnesses.
On 18 April 2018, I received a letter from the Immigration Department, notifying that I was on breach of Section 101 and 102 when I applied for extension of my visitor visa and therefore the Department intends to cancel my Bridging Visa C.
As per my letter to the Visa cancellation Team dated 20 January 2018, I did not know what was written on the Entry Passenger Card and so I have asked the passenger the person next to me to help me to fill in. I was not aware of the questions was related to my past until I notified and questioned by the Department. I want to acknowledge my irresponsible action and I am sorry for my ignorant and irresponsible action.
And when I applied for extension of my tourist visa on 14 May 2017, the staff of the Migration agency, who filled in the application form, did not ask me anything about my past history/conviction. I was not aware of what is written on the visitor application form. I just signed on the forms.
As stated before, now I fully understand the consequences of incorrect answers. And for that I am deeply sorry.
As for the Mongolian Police [Certificate], the certified copy of which along with the NAATI certified translation is attached in Attachment 1. I declare that this is a true authentic document. I asked my relative to apply and obtain it for me as I was told by [the migration] agency that they needed it. I do not know about the English translation of the certificate as the agency arranged it.
Later, in February 2018, I also obtained another Mongolian Police [Certificate] (the certified copy of the original document along with the NAATI certified translation is attached to this statement as Attachment 2).
You can access to [specified website] before [date] and verify the authenticity of this document. But you cannot verify the [first] Mongolian Police [Certificate] as the certificate has 90 days for log in and check please see attached information sheet on how to log in and see the police certificate online. (Attachment 3)
In Mongolia, the Police Certificates do not state whether the particular person did not commit the crime in the past. It only states whether the person is currently convicted (at the time of the issuance of the certificate).
The General Executive Agency of Court Decisions, which is the Implementing Agency of the Mongolian Government, issues certificates that confirm subject person's past convictions.
It is true that I served a prison sentence in Mongolia from 1996 to 2005, but it was for offence, that was committed by another person, not by me. At that time, it was the period in Mongolia, when judicial and law enforcement authorities had system, where they didn't try to find out the accuracy of the matter, but instead law was serving for the rich people, for people who had more power. It was a time where police performances were measured by the number of people convicted not by the number of correct or just processes. This phenomenon still exists in today's Mongolian society.
I fear that the law enforcement bodies and some people want me to be accused and convicted for a crime mentioned above. The person who killed [Mr B] is set free and I suspect the worse. I need time until a lawful court decision is made. I do not want to leave Australia, because I fear that if I go back to Mongolia, I will be falsely accused and convicted, and my life will be in danger. Until that I am proven not guilty, please allow me to stay in Australia and I am seeking protection. I am happy that I am in Australia, in the county that respects human rights. Since 2005 I have travelled to many countries like [Country 1], Australia, [Country 3], [Country 2], [Country 4] etc. for shorter or longer stays. During my visit to above mentioned counties I have never broken local laws of these countries and obeyed the regulations and tradition along with the expectation of local communities.
In Mongolia, I have always been a good citizen and I did my best when I could, to support my local community and organisations in my neighborhood. I have attached 3 Letters of Support (Attachment 4, 5, 6 and 7). I have also supportive to the Mongolian Community in [City 5, Australia]. I have donated cash money towards the [Mongolian Community] in [City 5] and also sponsored local Mongolian basketball team in [City 5] in 2017 (Attachment 8).
I hope that you will understand my situation and allow me to stay in Australia.
I ask to consider my circumstances and detailed explanation and not to cancel my Bridging Visa C.

The applicant provided the following ‘additional statement’ to the Department (not corrected for spelling or grammar):
On top the Statement of mine dated 03 May 2018, I would like to further state the following;
As stated in my previous statement, in 1999, a person called [Mr E] (nicknamed named as "[Alias 1]") stabbed [me] while I was serving my time in jail in Mongolia,
However, when I was detained in the [police station], [in] 2015.1 was put in the same jail cell as was [Mr F], who was already occupying the cell. He is now about [age] years old and at that time, he seemed to have become a different person,
I was in the same cell with [Mr E] and spent 3 days with him. [Mr E] told me that police asked him to bully me hard and break me down so I plead guilty for [Mr B]'s case.
[Mr E] behaved polite towards me instead of aggressive because when I was stabbed by him in 1999, I testified in favor of [Mr E] when he was charged for stabbing me. And because of this he got only 2 additional years instead of possible 5-7 years, For that I think he was grateful to me when I met him in 2015.
I understand that the police wanted [Mr E] to bully me and intimidate me. And that is why they brought [Mr E] from the prison where he was serving to the Detention Centre. I think Police wanted me to plead guilty under [Mr E]'s pressure. As we knew each other from previous jail time, police calculated that I will be intimidated by his presence and will commit another crime so the police could easily charge me and convict me.
Then I contacted my lawyer and asked him to move me to a different cell. So on 4th day, was moved to a different cell.
From this experience I think there is a serious reason where police wanted me to be convicted again.
Information on a Departmental note on the Departmental file indicates that in [2017] Interpol issued a ‘Red Notice’, indicating that the applicant is wanted by Mongolian authorities for an alleged murder in [2015]. Additional information in the notice indicates that the applicant previously served a sentence for [other offences].
The applicant provided the following documents as part of the application as summarised in the delegate’s decision (footnotes omitted):
·Letter dated 30/04/2018 from the Mongolian [community in] Australia attesting to the applicant's monetary support of, and participation in, community activities
·‘How to check a Mongolian Police Certificate online' [English only]
·General Police Department of Mongolia [Certificate] which states "This is to certify that [the applicant] with the above personal details has NO current conviction'
·'General Police Department of Mongolia [Certificate] which states "This is to certify that [the applicant] with the above personal details has NO current conviction'
·Reference letter from [a named high school in Ulaanbaatar], dated 20/04/2018, attesting to donations made to the school by the applicant
·Letter from [a NGO], dated 27/04/2018, attesting to the applicant's membership of and financial contributions towards student scholarships and employment projects
·Reference letter from the Human Resource Manager of [Company 2], dated 24/04/2018, confirming that the applicant was the company's [senior office bearer] from [2013] until his resignation on [2017]
·Character reference from a childhood friend of the applicant, dated 23/04/2018
The applicant made a submission to the Tribunal in advance of the first hearing commenting on the decision of the delegate. The applicant explains his delay in applying for the protection visa. He indicates that in January 2018 he became aware that the police in Mongolia wanted to charge him with murder so he started to search to find a way to stay in Australia. He then found out about the option of a protection visa and immediately applied for this.
The applicant indicates that he changed his mind about returning voluntarily to Mongolia after he found out that he would be accompanied by guards. The applicant indicated he would not return to Mongolia, he would go elsewhere to seek protection.
The applicant claims that he is from a particular social group of people who have been previously convicted of murder in Mongolia. The applicant indicated that the person accused of the murder that it is claimed the applicant was involved in, [Mr D], confessed that he committed the crime at a hearing of first instance [in] August 2018. He also indicated that the applicant had nothing to do with the murder. [Mr D] was jailed for [number] years. The applicant also claims that it is the case that, notwithstanding this, police are also accusing the applicant of the crime.
The applicant also refers to other instances in Mongolia where there have been false accusations against individuals. The applicant indicates that there are many instances of torture and gives two examples. The applicant refers to him being detained on remand in 2015 with the same individual who had stabbed him when he was imprisoned in 1999 as illustrating the risk to him.
Independent information
The Tribunal notes the following relevant information from the 2017 United States Department of States, Human Rights Report on Mongolia. The report indicates a number of significant human rights abuses in Mongolia including police abuse of prisoners and detainees. The Mongolian National Human Rights Commission (NHRC) and other NGOs reported the unnecessary force and cruel, inhuman or degrading treatment or punishment of some prisoners and detainees, particularly to obtain confessions.
The report indicates that the National Public Agency received 24 complaints about the use of force against an individual by a public official, police officer or investigator. Six of these complaints were submitted to the Prosecutor General’s Office. There are reports of families being threatened in an attempt to coerce or intimidate detainees. The National Public Agency has a special division to investigate police officers accused of torture.
Under the new code which came into force on 1 July 2017 there has been an expansion of all public officials being able to be prosecuted for official abuse or torture. This new code includes both physical and psychological abuse. The NHCR reported evidentiary difficulties in relation to claims of psychological torture. There is difficulty in witnesses being willing to provide evidence given that they were themselves detainees or prisoners and under pressure not to testify.
Whilst there have been improvements in recent years, prison conditions remained poor, and in some cases harsh, in some prisons and pre-trial detention centres. Prisons and pre-trial centres are generally not overcrowded. Nevertheless there are reports by NGOs and government officials as to insufficient facilities in a number of respects.
The maximum period for pre-trial detention with a court order is 18 months. A detainee has a right to a lawyer during pre-trial detention and in all subsequent stages of proceedings. The government must appoint a lawyer if one is not engaged by the defendant.
There are reports of judicial corruption and third-party influence. Courts rarely enter not guilty verdicts or dismiss criminal charges over the objection of prosecutors even when full trials had produced no substantial evidence of guilt. NGOs reported that sometimes authorities do not observe legal fair trial procedures and that bribery of judges, prosecutors and expert witnesses sometimes contributed to unwarranted convictions, dismissals or reduction of sentences.[1]
[1] 2017 United States Department of States, Human Rights Report on Mongolia pp 1-6
Hearings, post hearing submissions and information, 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.
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 his claims will be assessed against Mongolia.
First hearing and post hearing documents
In the first hearing the applicant confirmed that in court proceedings that took place in Mongolia [in] August 2018, [Mr D] was sentenced to [number] years for the murder of [Mr B]. Despite [Mr D] indicating that the applicant had no involvement in the murder, the applicant indicated in the hearing that the court determined that the applicant still had a case to answer.
The applicant indicated in the first hearing that he was able to leave Mongolia in 2015 after being released on bail because authorities had recorded the wrong identity number for the applicant allowing him to leave on his passport, which otherwise would not have been permitted.
The applicant indicated in the first hearing that he has had lawyers engaged in the proceedings from him being charged in 2015 up until the 2018 proceedings. The applicant offered to provide the Tribunal with relevant court documents, although indicating that it would take him some time to obtain and translate the documents.
The Tribunal asked the applicant to provide Mongolian court documents that would establish that he was a continued person of interest by authorities for the murder. The applicant asked for 45 days to provide these documents which the Tribunal granted to the applicant. The Tribunal stressed the importance of the Tribunal being provided with official documents that would establish that he was facing charges in Mongolia for the murder.
(The Tribunal was conscious of the applicant being in Immigration detention so encouraged him to provide the documents as quickly as possible so that the Tribunal could make a decision as expeditiously as possible.)
The applicant provided in response a written official record of a hearing of [a Mongolian court] held on a date that is not specified presided over by three judges. The hearing relates to criminal charges against [Mr D] for murder. The record of proceedings indicates the accused as admitting that he committed the murder. However, he does not accept that it was a group crime and that the accused was hired to commit the murder. It is clear from the record of proceedings that the accused would be subject to a ‘heightened’ sentence if this were the case. The accused denies that he was hired to commit the murder by the applicant. He indicates that the applicant has been falsely accused in this respect. However, he says that he committed the crime to earn the respect and attention of the applicant and show that he was loyal to him. The defence attorney for the accused indicates that he does not argue with the fact that there was a troubled relationship between the applicant and the victim but it cannot serve as a basis to see the accused as a hired murderer. A relative of the victim asserts that the applicant committed a crime and fled.
The Chief Judge indicates that the ‘jury’ concluded that [Mr D] was guilty for ‘committing hired murder as a group for the purpose of creating material and nonmaterial profits for himself and other parties involved’. (In the second Tribunal hearing the applicant indicated that ‘jury’ referred to the panel of judges rather than a jury as would be considered in the Australian context.)
The court concludes by sentencing [Mr D] to [number] years imprisonment, the sentence asked for by the state prosecutor.
In relation to there being a current interest by authorities in the applicant due to the murder in 2015, the Tribunal had earlier in the first hearing put the following adverse information to the applicant pursuant to the procedural requirements of s.424AA of the Act. The Tribunal referred to information in a Departmental note dated July 2018 on the Departmental file relating to the applicant’s protection visa application. The note indicates that an Interpol ‘Red Notice’ was issued in relation to the applicant in [2017] indicating that he is wanted by Mongolian authorities for an alleged murder in [2015].
The Tribunal referred to other information being the fact that the Tribunal had recently (in the prior few days to the first hearing) undertaken an internet search from the Interpol online database which provides a search function to determine individuals who are wanted/subject to a Red Notice (persons wanted by Interpol). The Tribunal indicated that a search of the applicant’s name had elicited no responses. The Tribunal noted that this information was relevant because it could indicate that, whilst the applicant had been previously subject to charges of being involved in a murder, resulting in an Interpol notice being issued, the failure of any current Interpol notice pertaining to the applicant could indicate that he is no longer charged or under suspicion. The Tribunal noted that it could be seen as consistent with the fact that a person has been convicted of the murder [in] August 2018 that the applicant is no longer under suspicion.
The Tribunal gave the applicant the same 45 day period needed to provide relevant documents to respond to this information. In response, the applicant indicated that his lawyer had told him that Mongolian authorities had sent a request letter to the Australian Government requesting that the applicant be sent back to Mongolia. The applicant indicates that he believes that Mongolian police know where he is. The applicant indicated that he is not able to find out if he is still wanted by Interpol at the moment.
In the first Tribunal hearing, the Tribunal asked the applicant about claims in his protection visa application form that he had been convicted twice, including one period of imprisonment between [1991] and [1994]. The applicant indicated that this related to gang violence whilst he was at college in which he cut a person’s hand.
In the first Tribunal hearing the applicant provided evidence consistent with certain prior claims. The applicant provided consistent evidence that he had been stabbed while in prison by a fellow inmate. The applicant showed the Tribunal a scar on [Body Part 1] which he claims is from this stabbing. The applicant provided consistent evidence of an intent by authorities to intimidate the applicant when he was detained in 2015 on suspicion of murder by placing him in a cell with a person who has previously harmed him.
The applicant indicated in the first hearing that he had pled guilty to manslaughter in 1994 but he had done this to protect his brother, consistent with claims elsewhere. The applicant provided consistent evidence that he withdrew his protection visa application on 10 May 2015 because he thought he would be free to travel to a country other than Mongolia not realising that he would be escorted by officials back to Mongolia.
The applicant confirmed earlier evidence that he had not filled in correct information on the immigration card when entering Australia about criminal convictions because, due to his lack of English, he got someone else on the plane to fill this in for him. He indicated that whilst he provided some information to his migration agent when seeking a further visitor visa his migration agent filled in the relevant forms resulting in information about prior convictions not being included in the application.
The Tribunal noted to the applicant in the first hearing that the fact of him being subject to the Mongolian criminal justice system for alleged involvement in a murder and any punishment would not fulfil protection criteria. Harm as a result of legal process and penalties would be as a result of a law of general application/a lawful sanction. In response, the applicant indicated the additional particular targeting for physical harm/intimidation that he would face.
The Tribunal noted to the applicant in the first hearing that even if the Tribunal was to find that the applicant met the criteria under the refugee or complementary protection criteria, obligations would not be owed by the Australian government if there were serious grounds for considering that the applicant had committed a serious non-political crime before entering Australia.[2] The Tribunal noted to the applicant that this was not a determination that would be made by the Tribunal.
Interpretation issues in first hearing
[2] See s.5H(2)(b) and s.36(2C)(a)(ii)
After the first Tribunal hearing, the applicant wrote to the Tribunal indicating that he had asked a translator in Mongolia to listen to the recording of the hearing to assess whether the interpretation was accurate. A number of instances were indicated of claimed inaccuracies in translations. The Tribunal has taken note of clarifications and claimed inaccuracies in the interpretation during the first Tribunal hearing.
The Tribunal has taken into account the clarifications and claimed errors in making its findings of fact. None of the claimed errors directly impact on issues surrounding findings of fact by the Tribunal. Key issues raised were repeated or clarified in the second hearing, including as discussed below.
Second Tribunal hearing and post hearing
In the second hearing, the applicant initially claimed that the translation of court documents provided after the first hearing were the appeal proceedings of [Mr D]’s [sentence]. When the Tribunal pointed out that the documents indicated that they were proceedings of ‘first instance’, the applicant agreed that they were a record of the proceedings that occurred [in] August 2018 resulting in the [number] year sentence.
The applicant indicated in the second hearing that the appeal had been decided [later in] 2018 and had affirmed the original sentence on the basis of the accused having been engaged in a ‘hired’ murder (at the claimed behest of the applicant). The Tribunal asked the applicant why no record of these proceedings had been provided to the Tribunal. The applicant indicated that his lawyers were not able to get a record of the proceedings but they had heard through sources that the sentence had been maintained.
Following the second hearing the applicant wrote to the Tribunal indicating that he had been able to obtain a copy of the court appeal proceedings from his lawyer in Mongolia. The applicant requested time to have the document translated which the Tribunal granted.
The translated document is [from a Court of Appeal in Mongolia] dated [October] 2018. The appeal is in relation to the conviction of [Mr D] with [Mr D] arguing that he should not have been convicted or sentenced on the basis of a group/hired murder, although he acknowledged that he committed the murder. In essence, the appeal is looking at whether there was sufficient evidence that the applicant was involved in commissioning the murder. Reference is made to the fact of [Mr D] denying that he was ordered by the applicant to commit the murder. The appeal court concludes that there was evidence before the court of first instance that justified the conclusion that [Mr D] intentionally committed the murder ordered by others to create a material and non-material gain for himself and others. Reference is made to incriminating evidence as to the applicant’s involvement in the murder.

The Tribunal asked the applicant in the second hearing about claims that the Mongolian Government had made a request of the Australian Government to return the applicant to Mongolia. The applicant indicated that his lawyers told him this in May 2018. When the Tribunal explored with the applicant why documents relating to this request had not been provided, the applicant indicated that they had not been able to be obtained by his lawyers. When the Tribunal asked the applicant how his lawyers therefore knew that such a request had been made, the applicant indicated that they had learned through various informal sources.
The Tribunal asked the applicant why no mention in the proceedings had been previously made of this claimed request by the Mongolian Government to Australia, noting that the application for the protection visa was not made until 12 July 2018 (after the applicant was informed of the request by the Mongolian Government by his lawyers). The applicant indicated that since being in detention things have been blurry and that he has been in shock affecting his understanding and abilities.
Given claimed interpretation problems in the first hearing concerning adverse information put to the applicant pursuant to the procedural requirements of s.424AA of the Act, the Tribunal went through again the adverse information pursuant to the procedural requirements of s.424AA the Act. The Tribunal put to the applicant information on the Departmental file indicating an Interpol ‘Red Notice’ indicating that in April 2017 the applicant was wanted in Mongolia. It appeared that this notice must have been withdrawn based on a search by the Tribunal just prior to the first hearing revealing no ‘Red Notice’ in relation to the applicant. The Tribunal also noted that on the morning of the second hearing the Tribunal had repeated its search on the Interpol website which revealed no indication of the applicant being wanted through Interpol.
In response, the Tribunal indicated that [Mr D] had been convicted on the basis of a hired murder and that the applicant is the person considered to have hired [Mr D]. He commented that as Interpol now know the applicant is in Australia and for this reason the Interpol alert in relation to him has been withdrawn.
Assessment
The Tribunal accepts, based on the record of court proceedings [in] August 2018, that [Mr D] was convicted of taking part in a hired murder as part of a group which resulted in a ‘heightened’ sentence of [number] years. The Tribunal accepts that the applicant is referred to in the court proceedings as the alleged ‘hirer’ of the murder.
The [appeal decision] upholds the first instance decision of a murder ordered by others, thus justifying the increased sentence. Incriminating evidence is referred to in the appeal decision in relation to the applicant. The appeal decision refers to the applicant fleeing the country while being investigated.
The Tribunal is not satisfied that Mongolian authorities have made a request to Australian authorities that the applicant be returned to Mongolia. The Tribunal considers that if the applicant had been told about such a request by his lawyers in Mongolia in May 2018 as claimed, then reference to this fact would have been made earlier in the quite extensive claims and written statements that the applicant provided as part of his application. As it was, this significant claim was made for the first time after the first Tribunal hearing.
The reasonably articulate and comprehensive claims and submissions by the applicant to the Department and the Tribunal do not persuade the Tribunal that the applicant was in a state of impairment that caused him to fail to earlier mention that his lawyer had indicated a request by Mongolian authorities to Australia that the applicant be returned to Mongolia. In addition, no supporting documentary evidence has been provided of such a request.
The Tribunal notes that a previous Interpol notice in relation to the applicant that was in place in April 2017 is no longer in place. That could indicate that the applicant is no longer wanted by Mongolian authorities. The fact of the applicant being alleged in court proceedings relating to [Mr D] as the hirer of the murder and [Mr D] being convicted of a hired murder does not necessarily indicate that authorities have either the intention or requisite evidence to charge the applicant.
Having said that, it is clear from the two court proceedings provided by the applicant that there is probative evidence of the applicant being involved in commissioning the murder. The Appeal Court upheld the severity of the sentence based on [Mr D] being involved in a group murder with evidence cited concerning the applicant’s involvement in commissioning the murder.
On that basis, and notwithstanding that there no longer exists an Interpol ‘Red Notice’ for the applicant, the Tribunal considers there is a prospect which is more than remote of the applicant being charged on return to Mongolia with commissioning the murder of [Mr B].
That would put the applicant squarely within the prosecutorial and prison system in Mongolia.
The independent information before the Tribunal from the United States Department of State refered to above refers to abuse of prisoners and detainees in Mongolia, particularly to obtain confessions. There are reports of judicial corruption and third-party influence. It is noted that courts rarely enter not guilty verdicts or dismiss criminal charges over the objection of prosecutors even where full trials have produced no substantial evidence of guilt.
The Tribunal accepts the evidence of the applicant as consistent with this independent evidence that authorities intended to intimidate the applicant when he was detained for suspicion of involvement in the murder of [Mr B] by putting him in a cell with a violent criminal who had previously physically harmed the applicant.
The Tribunal considers in the light of independent information that there are significant deficiencies and unfairness in the prosecutorial and judicial system in Mongolia and that the applicant faces a real chance of serious harm as part of the process he will undergo of being interrogated, charged and prosecuted by Mongolian authorities. The risk particularly arises from abuse from authorities in seeking a confession. The Tribunal would find that this harm would occur for the reason of the applicant being a member of a particular social group of individuals charged with a serious criminal offence in Mongolia.
That being the case the Tribunal is satisfied that the applicant is a refugee within the meaning of s.5H(1). The Tribunal is satisfied that the applicant’s fears are well-founded.
The Tribunal does not consider that there are effective protection measures available to the applicant in Mongolia as the source of harm that the applicant faces a real chance of enduring is from the state itself. Therefore s.5J(2) does not apply. The Tribunal considers that the real chance of persecution relates to all areas of the receiving country as per s.5J(1) given that the source of harm is the state. There is no evidence that the applicant has a right to enter and reside in any other country.
Even if a person meets the elements of the refugee definition in s.5H(1), he or she may nevertheless not meet the criterion in s.36(2)(a) because of the operation of s.5H(2).
Section 5H(2) provides that s.5H(1) does not apply if the Minister has serious reasons for considering that the person has committed a crime against peace, a war crime, or a crime against humanity, or has committed a serious non-political crime before entering Australia, or has been guilty of acts contrary to the purposes and principles of the United Nations.
However, the Migration and Refugee Division of this Tribunal, considering an application under Part 7 of the Act, has no power to determine s.5H(2) issues: s.411(1)(c) and (d).
In the hearing the applicant agreed that the crime of which he was convicted for [manslaughter] was a serious crime. However, the applicant indicated that he did not commit the crime and took responsibility to protect his brother.
Notwithstanding this claim, the applicant was convicted of the crime of manslaughter with a very considerable prison sentence. The fact of the applicant being convicted of what the Tribunal considers to be this serious crime may establish in the Tribunal’s view that there are serious grounds for considering that the applicant has committed a serious non-political crime and therefore falls within s.5H(2)(b).
In addition, the Tribunal considers that there may be serious grounds for considering that the applicant has committed a serious non-political crime, being the commissioning of the murder of [Mr B]. Indeed, the evidence put forward by the applicant in relation to the court proceedings of [Mr D] details allegations and evidence as to the applicant commissioning the murder of [Mr B]. The applicant himself is asserting that Mongolian authorities have a serious belief that the applicant was involved in this crime as this is the basis of the applicant’s claims to be owed protection.
In summary, the Tribunal is satisfied that the applicant is a refugee as defined in s.5H(1).
The Tribunal notes that the material before it may give rise to issues relating to s.5H(2). The Migration and Refugee Division of this Tribunal has no power to determine s.5H(2) issues. As the Tribunal is satisfied that the applicant is a refugee as defined in s.5H(1), the matter will be remitted to the Department for reconsideration, including consideration as to whether s.5H(1) does not apply in this instance, because of the application of s.5H(2).
DECISION
The Tribunal remits the matter for reconsideration and directs that the applicant is a refugee within the meaning of subsection s.5H(1) of the 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 3868

22 February 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies