2009136 (Refugee)

2009136 (Refugee) [2020] AATA 4704 (14 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2009136
COUNTRY OF REFERENCE:                   Mongolia
MEMBER:James Silva
DATE:14 August 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 August 2020, 11:00 am
CATCHWORDS
REFUGEE – protection visa – Mongolia – government employee – participation in high profile and potentially dangerous operations – fear of harm due to activities in past employment – arrest of former public official – pursuit of a drug gang – credibility concerns – nature of the applicant’s work – delay in seeking protection – precautions and reaction to claimed threats – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
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

The applicant is a [age] year old man from Mongolia, who claims to be a national of that country.
The applicant arrived in Australia [in] April 2017, on a student visa. He applied for a protection (class XA) visa on 11 March 2019. On 28 May 2020, the delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
This is an application for review of that decision. The applicant appeared before the Tribunal on 14 July 2020.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. The relevant law is summarised in Attachment A.
CLAIMS AND EVIDENCE
Protection claims
The applicant worked as a [government employee] from 2006 until his departure from Mongolia in 2017. He was in [a special department] from 2012. He focused on [specified operations], but also participated in high profile operations. In two of these - the arrest of former [government official in] 2012 and undercover work with a notorious [criminal] in 2014 - his targets and their associates were able to identify him. The applicant claims that in the following period, he was subject to assaults, in 2013 and more seriously, in June 2015; and there were other assaults, threats and menacing incidents. The applicant claims that his fears for his safety grew, eventually prompting him to flee Mongolia. He fears that if he returns to Mongolia, associates of the ex-[government official], the convicted [criminal] and/or other criminal figures will target him. While his past work as a [government employee] afforded him some degree of protection, the applicant fears that he now faces a higher risk of persecution or significant harm, as he will return as a civilian.
Background
The applicant is a [age] year old man from Ulaanbaatar, Mongolia. He provided some information about his background, during his original application and on review, in a somewhat piecemeal and incomplete manner.[1]
[1] The applicant’s protection visa application form (Parts B and C) left large sections blank. His agent later provided partially completed forms. Some of the information (for instance, about the applicant’s employment history) was provided in the body of written submissions, and at hearing he provided some further details. The Tribunal’s summary seeks to consolidate this information.
The applicant was born and lived in the capital Ulaanbaatar. He told the Tribunal that in June 2013, he moved to [Town 1] for about three months (this is a small town some [distance] from [Ulaanbaatar]). He lived in [Location 1], an Ulaanbaatar neighbourhood. About 12 months before coming to Australia (hence, in around April 2016), he bought and lived in an apartment in [District 1], in the [capital]. In 2019, he sold the apartment in [District 1].
The applicant attended school from 1992, completing his secondary education in [year]. From 2009 to 2014, while working as a [government employee], he went on to complete a Bachelor degree at [University 1].
In late 2005, he started [in the government as an intern], and in 2006 he joined [a special department]. From 2013, he worked as a team leader in special operations, and was promoted to [Position 1]. The applicant resigned this position to come to Australia. (The applicant’s work as a [government employee] is central to his protection claims. Further details are below.)
The applicant married in February 2004. The applicant’s (now ex-) wife, [Ms A], joined him in Australia in July 2017. The couple has two children, aged [age] and [age]. The children remain in Mongolia; they spend most of the time with the applicant’s in-laws; and also visit his parents. At hearing, the applicant said that his wife is still in Sydney, and they remain in contact with each other. Meanwhile, a judge in Mongolia has granted the couple a divorce, and it becomes final in a few weeks. The applicant provided no supporting evidence, but the Tribunal accepts for the purpose of this decision his evidence about his family situation.
The applicant claims to have started a de facto relationship in early 2017 with [Ms B], an Australian citizen of Mongolian origin whom he had known for two or three years in Mongolia. In his protection visa application, the applicant described her two children as his ‘step-children’. The applicant has since stated that they have separated, and that [Ms B] has returned to live with her husband.
At hearing, the applicant said that he has a [relative] living in Sydney, and two friends from high school.
The applicant holds a Mongolian passport issued [in] 2014, which expired [in] 2019. He told the Tribunal that he has not yet applied for a replacement. The delegate’s decision record indicates that he held a previous passport, a partial copy of which he provided with his student visa application.
The applicant undertook previous travel to [Country 1], [Country 2] and [Country 3]. His visits to [Country 3] were in 2007, for [training purposes]; and in August/September 2011, for [a specified competition]. The applicant visited [Country 1] on about three occasions in 2015 and 2016, for a short training course and for personal shopping trips.[2]
[2] At the Department interview, the applicant referred to specific dates, after apparently checking in his passport or similar record. The interpreter gave one of the reasons as purchasing [goods] for the [employer]. The applicant cited this as an example of poor interpretation. In any event, the precise purpose for the trips is not material to this decision.
The applicant applied for an Australian student visa [in] March 2017, and it was granted [in] March 2017. He arrived in Australia [in] April 2017. He told the Tribunal that he struggled with his studies, and transferred to another course in July 2017. In February 2018, he obtained a further student visa, as the dependant of his (now ex-) wife. The visa was cancelled [in] December 2018, and the applicant was later interviewed and arrested in connection with criminal offences. He is currently in [an] Immigration Detention Centre.
Evidence
The evidence before the Tribunal includes the following relevant material: -
§The protection visa application lodged on 11 March 2019. Attached to this was a two-page statement of claims. Parts B and C of the application form (‘Persons included in this application and family composition’ and ‘Personal details) were initially left blank. The applicant later submitted these forms with details of family members, and travel history, but incomplete information about his past addresses and employment.
§The applicant’s representative(s)[3] made numerous submissions to the Department.
[3] The Refugee Advice and Casework Service (RACS) represented the applicant in the primary application. His representative was for the main part [Mr D], although a colleague also made a submission for the applicant.
§Submission of 27 March 2020, which included links to [social media] videos (see below).
§Protection visa interview on 28 March 2019, which the Tribunal has listened to in full.
§Post-interview submission dated 29 April 2019. This included a re-statement of the applicant’s claims, and various concerns about the conduct of the interview; as well as various supporting documents (included in the list above).
§Submission dated 17 April 2020, which addresses the applicant’s claims and supporting evidence in some detail.
§Supporting documents to the Department and the Tribunal, consolidated as follows:
-Mongolian [government department’s] Staff Information Sheet, issued [in] June 2019, which appears to be an official service record.
-Photographs of awards and certificates.
-Photographs of the applicant in work-related contexts, including group photographs in uniform and his participation in sports events (in Mongolia and overseas).
-Links to [social media] videos described as showing the applicant’s involvement in the arrest of former [government official in] 2012.
-[A] statement of support on official letterhead from a [former colleague], dated 27 March 2019.
-Copies of International Health and Medical Services (IHMS records) from early 2019 in which the applicant referred to his fears in Mongolia.
§The Department file includes excerpts from Wikipedia pages and other online reports relating to the [applicant’s employer], [University 1] and the trial of a criminal, [Mr C], who was the target of the applicant’s last operation in Mongolia. It appears that the delegate found these materials and placed them on file.
§The protection visa decision record of 28 May 2020, which is the subject of this review.
§The application for review, lodged on 1 June 2020, has attached to it a copy of the delegate’s decision record.
The Tribunal received a pre-hearing submission dated 9 July 2020.
The applicant appeared before the Tribunal on 14 July 2020, to give evidence and present arguments. The hearing was conducted with via videoconference, with the assistance of an interpreter in the Mongolian and English languages.
The applicant was represented at the primary stage by the Refugee Advice and Casework Service (RACS). He is not currently represented. Although the applicant claims that he wrote the submission of 9 July 2020 by himself, with the assistance of an online translator and a friend who checked his English, the format, content and argumentation strongly suggest that he has had continued to receive some kind of legal assistance.
The Tribunal also has before it materials from Department file [number] relating to the applicant’s application for a bridging visa in March 2019; and his second application for a bridging visa in February 2020; as well as the associated applications for review to the AAT. These contain information relating to the applicant’s personal and family circumstances, as well as details of his criminal history in Australia. At hearing, the Tribunal advised the applicant that this information was before it, but that it did not appear relevant in assessing his protection claims. He noted this without comment.
Receiving country
The applicant claims that he is a Mongolian national. He holds a Mongolian passport, speaks Mongolian and has given documentary and oral evidence consistent with this claim. There is no evidence to suggest that he has the nationality of any other country. The Tribunal is satisfied that the applicant is a national of Mongolia, and assesses his protection claims against Mongolia as the receiving country.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Credibility
The Tribunal has taken into account into account the AAT Migration and Refugee Division’s Guidelines on the Assessment of Credibility both in the conduct of the hearing and in the assessment below.
The Tribunal accepts that the applicant worked in the Mongolian [government]’s [specialised team], and that his claims and evidence draw largely on his experiences. The main issues are whether he has accurately presented his role, the significance and consequences of key incidents, and whether they form the basis for a genuine and well-founded fear of persecution and/or significant harm.
An inherent challenge in this case is the nature of the applicant’s work, as it potentially involves security issues, including undercover operations. As the applicant’s former representative pointed out, this limits his access to corroborating documents. He may also have limited scope to seek further information about his claims, including from former colleagues. The Tribunal takes this into account in assessing the claims and evidence, and the attendant risks.
A number of factors affect the Tribunal’s credibility assessment in this case. These include some concerns and issues raised during the primary application, some of which the applicant echoed during this review.
First, the applicant’s protection visa application form was left largely blank, although he later filled in some of the gaps about his places of residence, education, employment and family composition, incrementally, including at the Tribunal hearing. The Tribunal found it difficult to obtain a single, authoritative account of his personal circumstances.
Second, the Tribunal notes that the applicant submitted several detailed statements during the course of the primary application and review. While there were many commonalities, the successive statements sometimes changed the perspective or added new information, the relevance of which was implied or unclear. The Tribunal is mindful that, in trying to present a cohesive account, the applicant’s representative may have misinterpreted, misrepresented or exaggerated some of the applicant’s intended statements. In any event, there are some marked inconsistencies between the applicant’s written claims (in particular, his original statement and the post-interview submission of 29 April 2019), and his oral evidence at hearing. For instance, the submission of 29 April 2019 claimed that his family were threatened; and that he moved to rural locations and changed his identity for his safety in response to threats, both of which he denied at hearing. Similarly, his written submissions claim that he was ‘personally present at the arrest of [[Mr E] in 2014 and [Mr C] in 2016]’, whereas he told the Tribunal that he was in fact not present at the arrest of [Mr E], he was in fact not present at the arrest. The applicant attributed some inconsistencies to his having drafted statements, and relying on Google Translate and the help of a friend to render these into English. The Tribunal is sceptical that this adequately explains these basic contradictions.
Third, the applicant raised concerns about the standard of interpretation at the Department interview, and requested the Tribunal to place no weight on the evidence that he provided then. He highlighted one example, when the interpreter stated that he went to [Country 1] in 2015 for the purpose of buying [goods] for [his employer], which he claims is incorrect. The Tribunal has listened to the interview in its entirety. The applicant gave often lengthy responses. Given that the interview was done by telephone, it appears that the interpreter and delegate had few opportunities to signal to him to pause from time to time to allow the interpreter to absorb all of his points. The delegate expressly asked him to do so just once. The Tribunal also notes that the interpreter had no formal accreditation, and sometimes delivered the English version in a slightly staccato manner. At the same time, however, the Tribunal notes that neither the applicant nor his representative raised any concerns during the interview itself, which lasted more than three hours. Also, the information provided at interview matches that in the applicant’s written application and statements, in both detail and tenor. Taking all these factors into account, the Tribunal accepts the need for caution in evaluating the applicant’s oral evidence at the Department, and in particular drawing any adverse inferences from it. However, it does not consider it appropriate to disregard or place no weight on it.
Personal circumstances and mental health issues
The applicant claims that, after arriving in Australia in April 2017, he started his studies but abandoned them in July 2017, due to language problems, the learning environment and the difficulties in adjusting to life in Australia. Around this time, he also began an affair with a Mongolian woman in Australia, and starting drinking heavily. This was a tumultuous period, with ongoing relationship problems and some criminal conduct. The applicant discussed these issues at hearing, and the Tribunal accepts the gist of them.
The applicant attributed his problems in part to his experiences in Mongolia, in particular his having ‘abruptly terminat[ed] his work there’. He implicitly invited the Tribunal to accept them as evidence to support his protection claims, and to explain his failure to seek protection earlier. While the Tribunal accepts that the applicant’s work was stressful, it is unable to link his subsequent personal problems in Australia with any particular incident in Mongolia, or any ongoing fear or persecutory harm or significant harm there. Moreover, while the Tribunal accepts that he left Mongolia four months after being promoted to [Position 1], it is not satisfied that this was an ‘abrupt’ termination or his work or linked with any particular threats.
The applicant’s personal circumstances in Australia – unsettled living and work arrangements, relationship problems, heavy drinking and criminal conduct – are often closely associated with mental health issues. In his pre-hearing submission, he wrote that, due in part to language problems, he had been unable to access even basic medical needs (and by implication, any treatment for mental health concerns). At hearing, he said that he meets a counsellor regularly but is not on any medication. He did not express any concerns about untreated mental health issues, and none were apparent to the Tribunal.
In sum, the Tribunal accepts that the applicant has been stressed in Australia, but it is not satisfied that he has any mental health issues that affected his capacity to present his claims and evidence at hearing; that are directly attributable to (and serve as evidence in support of) any specific incidents in Mongolia; or that give rise to any future treatment needs if he were to return to Mongolia.
Delay in seeking protection
The applicant applied for protection in March 2019, almost two years after first arriving in Australia, and only following the cancellation of his student visa and his transfer to immigration detention. The Tribunal considers this delay to be significant, and to potentially raise questions about the credibility of his claims and his need for protection.
The applicant gave two main reasons for this: (a) he had difficulty with English, and had first wanted to complete his English language course before seeking protection, and (b) in the meantime, his mental health problems and heavy drinking prevented him from completing the course, and his life spiralled out of control.
At hearing, the applicant confirmed that he was aware of the availability of protection in Australia, but he opted instead to apply for a student visa (including as the dependant of his ex-wife, in her application in February 2018). In response to the Tribunal’s observation that student visa applications involve paperwork and course fees, the applicant explained that he feared that his English language skills were not good enough to prepare a protection visa application, particularly given the complex and secretive nature of his past work. Also, none of his friends here knew about protection visas. He went on to say that, in the end, he had not found the protection visa application to be as difficult as he had anticipated.

The Tribunal finds problematic the suggestion that the applicant’s possession of a student visa took some of the urgency out of seeking protection.
§ At hearing, he said that he studied for a few months after arriving in Australia, but discontinued his course due to personal problems. Although he claims to have enrolled in another course, he could not recall the name of the institution and it does not appear to have been significant to him. The Tribunal accepts that he obtained a further student visa in February 2018, as the dependent of his wife, despite the fact that he was living with another woman at the time.
§ The applicant’s pre-hearing submission stated that ‘in Mongolian culture it is common for a man to leave their wife when problems arise in marriage, and it is equally common for the man to return to the wife when the dust has settled’. In doing so, he was addressing the delegate’s concern that he tried to mislead the Department by claiming to have been his (ex-)wife’s dependant in February 2018. The Tribunal draws no broad credibility inferences from the applicant’s inclusion in his (ex-) wife’s student visa. That said, it also does not accept at face value that there was any cultural misunderstanding or similar confusion to explain why the applicant and his (ex-) wife presented him as her dependant when they were, in fact, separated.
§ Taking these factors into account, the Tribunal concludes that the applicant knew that his entitlement to a student visa was tenuous, and would likely not provide a basis for permanent residency in Australia. In these circumstances, his failure to enquire about protection earlier casts some doubt over his claimed need for protection.
The applicant referred the Tribunal to records indicating that, shortly after his immigration detention and before lodging his protection visa application, he expressed fears about returning to Mongolia for reasons that are consistent with his current claims. He suggested that these support the credibility of his claims, and (implicitly) should outweigh the concerns about his delay in seeking protection. He submitted excerpts from IHMS[4] clinical records:
§ On 13 January 2019, the clinical record notes: ‘Client stated he was a [Position 1] in a [department] with the [government] in Mongolia who dealt with high risk people. Client stated his identity was exposed and he has been hiding from people who are threatening him. Client said he witnessed torture and death.
§ On 15 January 2019, the record states: ‘He states that he has tried to stop [drinking] but he gets worried mostly related to previous exposure to “bad people” when he was [working] in Mongolia’.
§ On 30 January 2019, the record states that ‘he was previously in [a specialised team] with the Mongolian [government]. […and] he was involved in arresting a ‘bad person’ in Mongolia. Subsequently was threatened by this man and his associates. States they threatened to kill him. Describes fear because Mongolia is a small country. Gestures that he had to watch everywhere following this threat. States that he came to Australia because he was scared of being killed and is fearful of the same if he returns.’
[4] International Health and Medical Services
Similarly, at the Located Person Interview held on 11 January 2019, the applicant is recorded as giving the following reasons for being unable to return to Mongolia: ‘I was working as a special [role] in the [public service] and working as a [government employee], and I had lots of awards for outstanding work and like a [Position 1]. The problem is I was working against organised crime and now they are targeting me like the mafia. That’s why I came here.’
The Tribunal gives these recorded statements appropriate weight in the assessment below, which also considers factors such as the context for these statements, the applicant’s personal circumstances and his conduct in Mongolia.
Credibility concerns
Overall, the Tribunal considers that the applicant has given a detailed, credible account of much of his work as a [government employee] in Mongolia. However, it is concerned that he also tended to exaggerate his role; and that he has misconstrued the meaning and relevance of some incidents.
The applicant’s work as a [government employee]
The applicant [joined the Mongolian government as an intern] in November 2005, at the age of [age]. At the completion of the course in April 2006, he was one of two participants to be offered positions in the [specialised team], as a [Position 2].
The applicant’s submissions and his ‘staff information sheet’ document his promotion to [Position 3] in May 2011. According to the applicant’s statements, a [superior] told him in 2011 that he had been identified as a future leader, and he received assignments as an ‘[Position 4]’ (i.e. beyond the normal responsibilities for his [position]). The key points are:
§ He attended [a competition] in 2011, and his successful performance in [the competition] helped accelerate his later promotions back home.
§ He worked in [Department 1] until July 2013.
- From April 2012, he was an apprentice team member of the Department’s ‘[specified team]’, and a team member from March 2013. In April 2013, he became an apprentice team leader for the [team].
§ In July 2013, he was transferred to [Department 2]’s ‘[specified team]’ as a team leader. By October 2014, the applicant reached the rank of [Position 1].
§ In March 2015, he was ‘demoted’ to the position of [Position 5].[5]
§ In December 2016, the applicant was again promoted to [Position 1], just four months before his departure for Australia.
[5] The translated ‘Staff Information Sheet’ gives his rank as of March 2015 as ‘[Position 6]’, which would have been a significant promotion. However, after comparing the Mongolian texts and in light of the applicant’s oral evidence, the Tribunal accepts that this was in fact a demotion.
The applicant told the Tribunal that he resigned his position before coming to Australia, although the staff information sheet, dated [in] June 2019, appears to indicate that was still on their records (possibly on leave). In any event, it is now clear that he is no longer part of [the public service], and is not eligible for re-employment.
Activities as a [government employee]
At hearing, the applicant stated that his work as a [government employee] mainly focused on [specified operations]. He was sometimes also involved in [specific] operations. The applicant provided a range of documents, including photographs, to support these claims.
The Tribunal finds on the available material that the applicant worked for [a special team in the Mongolian government]. According to sources cited in Wikipedia[6], ‘[general description of duties performed by someone in the applicant’s role]’
[6] The Tribunal refers to Wikipedia as a reference source with caution. In this case, Wikipedia draws on and summarises information from sources in Australia, New Zealand, Canada and Sweden, including [source deleted.]
The Tribunal accepts that the applicant reached the senior position of [Position 1] within the [public service].
The Tribunal notes that, in the Mongolian and other [governments], [the specialised team] is a specialist force, focused on high risk operations. There is an important distinction between the conduct of these operations on the one hand, and the strategic decision-making, investigations and other activities that determine the [government]’s priorities. In the Tribunal’s view, this forms important context for assessing the applicant’s claims.
Significant operations
The applicant highlighted two operations as presenting ongoing risks for him, because of their high profile nationally, and because – in contrast with most of his activities – his identity was not protected. He claims that the targets of these operations, and their associates, have both the motivation and the means to pursue him.
Arrest of ex-[public official], [2012]
The applicant claimed that he led the team that arrested former [public official] at his home [in] 2012. The applicant wore plainclothes during the operation, and [did not take measures to conceal his identity]. This operation was [[heavily publicised]. The applicant submitted links to two [social media] videos, one of about [length] taken from inside the ex-[official]’s residence, and another of over [number] minutes showing a large number of [individuals] outside the residence. He claims that he is clearly visible in both videos, and after the hearing he submitted several screenshots that show his uncovered face. Some of these photographs and the shorter video footage appear to show the inside of the ex-[official]’s residence, where he and other operatives entered a room where a group of people are gathered, presumably the ex-[official]’s relatives and associates. The applicant is standing [at location] while a number of uniformed officers move towards a target (presumably the ex-[official]).
The Tribunal accepts that the applicant was present on that occasion; that he had some role in the arrest of the ex-[official].
As noted in the delegate’s decision record, the applicant’s ‘staff information sheet’ shows that he held the junior rank of [Position 3] at the time of this arrest, and he was in [Department 2] (his transfer to the [specified team] took place some four months later, in August 2012).
§ He had received awards in July 2011 and in September 2011, but none that might be obviously linked to any role he might have played during this arrest. In his pre-hearing submission, the applicant wrote that ‘one of the [superiors] told me in 2011 that they had identified me as a future leader therefore despite the rank I held, I was treated as an[Position 4], hence my prominent role in the arrest of [the ex-[official]].’
The Tribunal accepts that the applicant was in the foreground of the arrest, which involved hundreds of [individuals] outside the ex-[official]’s residence, and a smaller number on the actual premises. On the available material, it finds the context for this was not that he personally ‘led’ or ‘commanded’ the operation, but rather that he supported and observed senior personnel who made the arrest. It accepts that it would have been possible for those present or those who watched or recorded the live broadcast to identify him personally.
Confrontation with the ex-[official]’s bodyguard: The applicant claimed that during the operation, the ex-[official]’s bodyguard [Mr F] recognised him, and addressed him by name, asking him to stop the operation. The applicant pushed him aside, thereby allowing the arrest to proceed. In other words, the applicant claims that he had a personal confrontation with the bodyguard and that he played a pivotal role in the actual seizure of the [government official]. The Tribunal notes that any such physical or verbal encounter with the bodyguard would have taken seconds. It is not able to determine from the applicant’s account, or the video footage or photographs, whether there was any such encounter.
For the purpose of this decision, the relevant issue is whether the applicant’s involvement in the arrest, including but not limited to any conflict with the bodyguard, made him a person of adverse interest to the ex-[official] and his associates. The Tribunal assesses this below and makes findings, in light of the applicant’s experiences in Mongolia form April 2012 until his departure five years later.
Infiltration/pursuit of major drug gang, February 2014
The applicant wrote in his original statement of claims that he was an ‘[undercover officer] in [an operation to investigate the illegal activities, drug trafficking, by an organised crime group in Mongolia] and acted as a drug addict in their group for a month’. He later led a team of 9 officers who arrested leaders and members of the gang. This operation attracted nationwide media attention.
At hearing, the applicant gave a somewhat different account. He claimed that in about mid-February 2014, he infiltrated the inner circle of drug trafficker [Mr E], also known as [Alias E], by managing to get hired as his [specified role]. Asked about his reference to having acted as a drug addict, he replied that it was ‘not really like’ that. The applicant said that at the Department interview, he had only limited details, such as the dates; he has since found the relevant material, and had refreshed his memory as to the dates.
The applicant provided some details about the operation. In February 2014, his supervisor instructed him to work with criminal investigators, to get hired as a [position] for [Mr E], and obtain information about the importation of drugs from [Country 1], such as their source, and their storage and distribution. The applicant said [Mr E] told him he was using some of these drugs to relieve pain from a previous leg injury, but he (the applicant) suspected [Mr E] himself was an addict.
In his submission of 9 July 2020, the applicant provided a link to a Mongolian newspaper article[7] concerning this arrest. The Tribunal has looked at the article, with the assistance of Google Translate, and is satisfied that it contains a description of [Mr E]’s background and arrest that it broadly consistent with the applicant’s claim, although it does not provide information directly relevant to the applicant’s role.
[7] Paragraph 63 of the submission. The link is to: [Source deleted]
The Tribunal is concerned by the applicant’s differing accounts as to whether he infiltrated [Mr E]’s circle by posing as a drug addict, or by getting hired as a [position]; and whether he was or was not present at the actual arrest. It is not satisfied that translation or interpretation problems adequately explain these differences. Information on the ‘staff information sheet’ (his service record) indicating that he moved to a different position in the [specialised team] in March 2014, and that he was promoted in April 2014, nonetheless provide some indirect evidence of the applicant’s possible involvement in the arrest of [Mr E] in February 2014. On the available evidence, the Tribunal accepts as plausible that the applicant played a key role in this high-profile operation, but it does not accept as reliable his description of what he did or the extent of his exposure to [Mr E] personally.
Other arrests and incidents
The applicant wrote on 9 July 2020 that his protection claims relate to those individuals who most likely to have both the motivation and resources to harm him, namely [ex-government official] and [Mr E]. However, he claimed to also fear persecution from other ‘unknown elements’, although in some instances investigations are ongoing (or, he implied, he does not access to details about these cases). The applicant offered to provide further details about other arrests at the hearing, if the Tribunal deemed it necessary.
The Tribunal accepts that the applicant’s work as a [government employee] in a [specialised team], and team leader, included operations that were sometimes dangerous and/or involving high profile figures.
Last [Position 1] operation, late 2016: arrest of ‘[Mr C]’[8]
[8] The applicant referred this person as ‘[Alias 1]’ submission of 29 April 2019 refers to this person as ‘[Alias 1]’, and thought his real name was ‘[name]’ or similar.
At the Department interview, the applicant spoke of the most recent operation that he was involved in, the arrest of a [individual] nicknamed ‘[Mr C]’. He had trouble recalling the person’s full name. He said that this person had been involved in criminal activities concerning a parliamentarian. The applicant arrested him before he managed to flee to [Country 2]. The applicant said that, during the arrest, [Mr C] tried to bribe him. When the applicant refused, [Mr C] warned him that his day of reckoning will come. He said ‘they’ (presumably [Mr C] and his associates) are unhappy with him.
The applicant addressed this in later submissions[9], and further information appears in the decision record (which the applicant submitted to the Tribunal) and screenshots of press reports that the delegate placed on file. These indicate that [Mr C] was a notorious criminal involved in offences such as theft, gambling, acts of violence, extortion and racketeering. In September 2013, he was charged in relation to the stabbing of a Mongolian politician, but later released (and imprisoned later on unrelated charges). In October 2016, he was detained on numerous charges such as intimidation, sexual misconduct and fraud, and released on bail. In late October 2016, he was arrested while trying to flee into [Country 2].
[9] In submissions to the Department and the pre-hearing submission of 9 July 2020, to the Tribunal.
The Tribunal accepts as plausible, in light of [his employment] responsibilities, that the applicant was team leader of the [team] that arrested [Mr C].
Experiences of past harm and threats
The applicant claims that his work was inherently dangerous. The Tribunal readily accepts that [the applicant’s specialised team] typically conduct operations in areas such as [specified activities], and that the conduct of these operations can involve high levels of risk. It also accepts that, even if these activities occupied only a proportion of the applicant’s professional activities, they generate some degree of stress. However, the Tribunal also notes the applicant’s evidence that he received advanced training, which he applied in his work and during the (alleged) assaults outside.
The applicant claims that he faced risks that went well beyond the actual conduct of operations, as the targets and their agents sought retribution against individual members of the [teams] (and especially team leaders). The applicant did not provide country information about this happening in Mongolia, although the Tribunal accepts this might be regarded as sensitive information and therefore not readily available. He also did not provide anecdotal evidence of this in the Mongolian [public service]. Rather, he relied on his personal experiences.
The applicant claimed that he had been subject to various attacks and threats.
§ He could not link these definitively to any particular incident, but he suggested that they were likely linked to his involvement in the arrest of the ex-[government official] [in] 2012 (when he did not wear a disguise); and his infiltration of [Mr E]’s network in February 2014 (although the Tribunal finds he exaggerated his direct exposure to [Mr E]). As the applicant pointed out in his statement of 9 July 2020, he focused on these two incidents because of their profile, his (claimed) lack of disguise during these operations, and the resources that the targets could muster in any effort to retaliate against him.
§ The Tribunal has accepted that he was also involved in the arrest of other dangerous criminals, and it accepts that other ‘unknown elements’ might, at least theoretically, ‘have reasons to want to harm’ the applicant.
The applicant claimed that, after the former [government official]’s arrest [in] 2012, he started receiving threats. He did not provide any specific instances relating to this time period, but referred to increasing feelings of insecurity during his work as a whole in Mongolia.
Attack in [Town 1], mid-2013
The applicant claimed that in June 2013, he and his family were living in the small town of [Town 1]. According to the statement of 12 March 2019 and the submission of 29 April 2019, he and his family had ‘migrated’ there. According to Google Maps, [Town 1] is a [part] of Ulaanbaatar city, although it is technically a separate city. The available material suggests that [Town 1] is a kind of satellite town, and the applicant and his family moved there for reasons unrelated to his protection claims.
The applicant claimed that, after moving to [Town 1] in June 2013, four armed men attacked him and his family. He used his [training skills] to stop the attack.
At hearing, he said that he was returning home when three or four men asked him for cigarettes. They said words to the effect that ‘this is for you’, indicating that he had done something to someone’s boss. The applicant was not sure what the reference meant, but the timing of the attack made him suspect that it was linked to his involvement with the arrest of [ex-government official], [in] 2012. The Tribunal noted the similarity between this exchange, and the applicant’s claims in relation to the alleged attack in May 2015. He confirmed this, without further comment.

The Tribunal accepts that the applicant may have been subject to some kind of assault, or attempted assault, after moving to a new neighbourhood. By his own account, the applicant is not sure that there is any link between the assault and his involvement in [government official]’s arrest. The Tribunal finds it difficult to believe that associates or supporters of the ex-[government official] would wait more than a year to take such action, and then do so only after the applicant had moved to a new location. Another oddity is that the men allegedly used more or less the same indirect phrase – that the applicant had done something to their (or someone’s) boss – as the attackers in May 2015. The Tribunal formed the impression that the applicant did not notice this similarity in his accounts, or indeed that he may have blurred them. Overall, the Tribunal is concerned that, even if there was an attempted assault, the applicant’s suggestion that this was linked to his [work] (and in particular, [government official]’s arrest) was contrived and unpersuasive.
Demotion in March 2015
The applicant claimed that in March 2015, he was ‘demoted to the rank of [Position 5], purportedly because of a ministerial direction’. He added that he received no explanation, but he believes ‘the circumstances were suspicious and intended to frustrate [him]’. At hearing, the applicant said he had heard that the Justice Minister had sent a letter to the head of the police office, but he could offer no further insights.
The applicant provided detailed evidence concerning his [career]. The ‘staff information sheet’ shows that in March 2015, he was ‘demoted’ to [Position 5][10]. The applicant’s documentation shows his employment history (including deployments to various [teams]), and his awards, but there is nothing obvious to explain his ‘demotion’ in March 2015. In any event, he was transferred to a different [team] in May 2015, and held the rank of [Position 1] from December 2016. Given the formal nature of the [public service] documentation, the Tribunal finds it difficult to believe that the applicant received no explanation, or written advice, regarding this move in March 2015.
[10] The translated text inadvertently records this as ‘[Position 6]’, which would have been a substantial promotion.
The Tribunal accepts, on the basis that it is plausible, that the applicant was ‘demoted’ in March 2015 (even though the staff information sheet suggests that he held the rank of [Position 1] from 23 October 2014 in relation to a specific project, i.e. possibly on an acting basis). However, taking into account that he was promoted back to the rank of [Position 1] in December 2016, the Tribunal does not accept that the May 2015 ‘demotion’ was in any way suspicious, or for any reasons associated with his protection claims (such as the suggested influence of Justice Ministry or Mongolian [public service] ‘insiders’ targeting him because of his past [work]).
Attack in May 2015
The applicant claims that the most significant incident occurred almost two years after the attack in [Town 1], in May 2015. In his original statement, he wrote that three armed men attacked him and tried to kidnap his family. He ended up with injuries to his head, which still has scars from the attack. The submission of 29 April 2019 briefly restates this.
As noted in the delegate’s decision record[11], the applicant claimed at interview that this was the most serious of several assaults that occurred outside his residence in [Location 1].
[11] The applicant provided a copy of this with his application for review.
In his submission of 9 July 2020, the applicant wrote that while the three men were attacking him, they said ‘We will kill you for what you did to our boss’; there was no mention of threats to his family. He fended off the attackers using his [training skills]. The applicant telephoned the local police to report the attack, and made his way to the hospital for treatment. The police met him at the hospital and took a statement from him. On returning home, he simply told his wife that he had ‘had a bad day at work and there was nothing to worry about’.
At hearing, the applicant said that the attack took place outside his apartment building in [Location 1], after dark.[12] He said that he suffered wounds to his head and hands, and went to hospital for treatment, which took about two hours. He received stitches for the wounds and some medication, and returned home later that night. As in the case of the alleged attack in [Town 1], he refuted his written claim that the attackers had also targeted his family.
[12] Country information indicates that sunset in Ulaanbaatar on 16 May is around 8:42 pm and it becomes dark only later. See: Timeanddate.com: >
To support this claim, the applicant provided photographs showing some scarring on his head, and scarring on his limbs (which he indicated were his left and right arms). The photographs do not show the applicant’s face, but the Tribunal accepts that they are of him. While he may bear scars on his head and arms, the Tribunal is unable to link these with any particular injury, or determine the time or circumstances in which they occurred.
The applicant also provided a document he described as a police report. This is a letter dated [in] March 2019 from a police colonel and head of department, [Mr G], of [specified District]. The letter states that the applicant ‘was assaulted on 16 May 2015 near his residence’ and that ‘he sustained heavy injuries on his hand and head.’ As the Tribunal noted at hearing, this letter of support is not a ‘police report’ (ie a copy of the police records, or the applicant’s statement). The applicant said he does not have any contemporaneous evidence to support the claimed attack, such as a police report filed immediately after it, or hospital records relating to his treatment.
The Tribunal accepts that the applicant has suffered injuries to his head and arms, on one or more occasions; and that these may be in part attributable to an incident in May 2015 (as the applicant states and the letter from [Mr G] confirms).
The Tribunal has a number of concerns about the significance of this incident, and its relevance to the applicant’s protection claims. First, the applicant’s account of the attack and its aftermath – such as his brief hospital treatment, his return home just hours later, the absence of any further disruption to his routines, and his ability to explain it away to his wife as ‘a bad day in the office’ – all suggest it was not such a serious attack, even allowing for the applicant’s comment that his combat skills served him well and prevented more serious injury. Second, the uncanny similarity between this attack and the one in [Town 1] two years earlier – the location (outside the applicant’s residence, on the street; the number of men; their reference to the applicant’s ‘boss’) is also striking. Finally, the Tribunal takes into account the applicant’s subsequent conduct, such as his living and working arrangements, in assessing how relevant and significant this incident was. The Tribunal’s consideration of these, and its findings, follow.
Events after the May 2015 attack
The applicant claimed that, following the attack and up to the time of his departure in April 2017, gang members threatened him numerous times, and occasionally attacked him. These were broad statements, and he gave few details.
Police investigation
The applicant claimed that the police made no headway in their investigation of the May 2015 attack itself. In his submission of 9 July 2020, he wrote: ‘After the May 2015 attack, I checked in the police database, the status of the investigation and realised it had been closed within a relatively short period of time. This raised my suspicion on the Mongolian [government] insiders and [it] destroyed my confidence in their commitment to protect me’. Elsewhere in the submission, he referred to corruption in the police force, and having reached the conclusion that they would not protect him. Asked at hearing about the police follow-up, the applicant said that his colleagues had looked into it, but did not identify those responsible. There was nothing in this brief response to reflect the suggestion in the written submission that the police force was corrupt, and that ‘insiders’ might have deliberately closed the case to protect the applicant’s enemies.
The Tribunal accepts as plausible that the police opened an investigation into the assault, but were unable to find the perpetrators and closed the file. The applicant’s inability to identify his attackers or give other details makes it unsurprising that there were no arrests. In these circumstances, the Tribunal considers the applicant’s suspicions that the local police were unwilling to protect him, or indeed that criminal elements had infiltrated their ranks and thwarted investigations, to be speculative and unfounded. The applicant’s continued stay in the family home in [Location 1] for almost a year after the attack leads the Tribunal to conclude that the police did not fail to investigate the applicant’s complaint, and that he did not genuinely fear that they were refusing to protect him.
Severed puppy’s head
The applicant claimed that some months after the May 2015 attack, a box appeared outside his residence. It contained the severed head of a puppy, and a note to the effect of ‘You are next’. At the Department interview, the applicant said that he disposed of the box without reporting it to the police, due to his lack of faith that they would protect him. He also did not tell his wife, so as not to alarm her. The delegate questioned the veracity of this claim, on the basis that the applicant would at least have alerted his family, as it was an imminent warning placed outside where they lived.
In his submission to the Tribunal, the applicant acknowledged that he had responded irrationally and out of frustration, but he explained that he did urge his wife and children to be more vigilant.
At hearing, the applicant thought that the incident had happened some time in 2015 or 2016; he could not be more precise. He said that the box had been left outside the apartment door on the [number] floor of the apartment complex. He was unable to investigate who left it there; there were no CCTV cameras or other security where he lived. He was not sure what exactly the trigger for this had been. In response to the Tribunal’s further questions, he confirmed that he could not state with confidence that it was linked with the arrest in 2012; or with his undercover work in 2014; or with any other [work]. He could not rule out that it was some kind of warning from a criminal, a colleague or a neighbour.
While the applicant presented this claim as a vivid example of the ongoing ‘difficult time’ that he had after the attack, the suggested link with his [employment] is tenuous and speculative. He also has no corroborative evidence, in part because he did inform the police or his family, and because he kept no photographic or other record of it. And finally, at face value, this confronting warning at the front door of the family home suggests that the perpetrator is highly motivated to scare or threaten the applicant; lacks consideration for his family members; and knows his residential address (and hence, probably other details). It is striking that the applicant and his family remained at the address for some time,[13] and that he made several trips to [Country 1] without them. Although the applicant claims to have instructed his family to take extra precautions, the Tribunal is not satisfied that this would have covered the risk, for instance, of further packages with confronting or even dangerous contents being left outside their front door. These factors raise doubts about this incident, as described, and its relevance to the applicant’s protection claims. The Tribunal is not satisfied that the applicant’s fear, irrational response or other personal reactions adequately explain his conduct over this period.
[13] The Tribunal notes the earlier suggestion that the incident took place perhaps a few months after the assault, whereas at hearing the applicant thought it might have been in 2015 or 2016. In any event, it appears to have been before the family’s move to [District 1] in or around April 2016.
The Tribunal does not accept that someone placed the severed head of a puppy outside the applicant’s family home as a direct warning to him, in connection with high profile work in 2012 or 2014, or any other [work]; or that there was any such incident that signals to him that powerful figures (such as the associates of the ex-[government official] or a crime syndicate leader) intend to harm him.
Threats arising from the arrest of [Mr C] in October 2016 (and earlier arrests)
The Tribunal has accepted that the applicant led the team arresting [Mr C] in late 2016. The arrest assumed some prominence at the Department interview and during this review mainly because it was the last high-profile operation that the applicant was involved in.
The Tribunal accepts that [Mr C] may have made both offers of bribes and threats during the arrest, in a last-minute bid to thwart the operation. However, it is not satisfied that utterances of this kind are considered statements, or directed towards the individual officers (even the team leader).
Furthermore, the applicant indicated at hearing that it was standard practice during such operations for [specialised] team members to wear masks (the 2012 arrest and 2014 undercover operation being notable exceptions). In the submission of July 2020, the applicant suggested that [Mr C] (and other high-profile targets) would have both the motivation and resources to find out the identities of [government employee]s involved in such actions. The Tribunal considers this to be speculative. The applicant has provided no persuasive evidence to indicate that [Mr C], or the targets of any previous operations during his career with the Mongolian [public service] have made such efforts. More generally, while the Tribunal accepts that notorious criminals might target high profile law enforcement officers, politicians, rivals and the like, the applicant worked with his identity protected, in [a specialised team]. While this work involves immediate risks, the Tribunal is not satisfied that any of the targets ever sought to find out the applicant’s identity, let alone single him out for retribution.
Precautions and reaction to the threats
During the primary application and review, the applicant emphasised that throughout this period, he was hyper-vigilant and scared for his safety. As noted above, he voiced such concerns in his first dealings with Immigration and medical staff upon his detention, and the Tribunal gives these statements due weight.
Attempted relocation: The applicant also wrote in his original statement of claims that, as a result of the ongoing threats to him (and his family), and the lack of police protection, they ‘were living in rural area and hiding [their] real names’. The April 2019 submission also states that he ‘relocated to rural areas, concealing his identity’. It recalls his statement at the Department interview that ‘[he] changed [his] location many, many times’.
The applicant’s failure to provide a history of previous addresses, in Form C of the application form or in subsequent submissions, makes it more difficult to identify where he lived in Mongolia, and whether any such locations might reveal attempts to avoid persecution or significant harm. This issue takes on added relevance given the applicant’s claims that he was attacked on more than one occasion outside his residence, and that the puppy’s head was allegedly deposited in a box at the door of his apartment in [Location 1]. He told the Tribunal at hearing that he lived in [Town 1] from mid-2013 for about three months (hence, well before the claimed May 2015 attack); that he had lived in [Location 1] for some time (including during and after the May 2015 incident); that he bought an apartment in [District 1] a year or so before coming to Australia; and that his family remained there until he sold it in 2019.The applicant’s continued work for the Mongolia [public service] in Ulaanbaatar reinforces the Tribunal’s view that he did not ‘relocate’ in response to threats of persecution or significant harm.
At hearing, the Tribunal sought to clarify his written references to having lived in remote and rural locations. He appeared surprised, and said that he had never lived outside Ulaanbaatar and [Town 1]. The Tribunal therefore does not accept that he was in ‘hiding’ in such locations, or that there was any attempt to ‘relocate’ in response to threats. On the contrary, the applicant’s continued residence in his apartment in [Location 1] until about April 2016, when he bought an apartment in [District 1], suggests stable living arrangements and casts doubt on the applicant’s claim to have been living in fear.
The applicant also said that he did not adopt different identities. However, he said that due to his [work] (and due to his having been attacked in the past), when he met people he used a different name. The Tribunal understood this to mean that the applicant avoided giving unknown people his full name, instead using a nickname or similar.
When asked about any other precautions he took in his line of work, he said that he and his colleagues were careful not to put photographs on social media, or disclose the nature of their work. They left their uniforms at work, and were often reminded not to discuss their work, even with relatives or close friends. The Tribunal accepts that [government employees] in [special teams] and other sensitive areas take steps to preserve the integrity of operations and their own security. It does not accept that such measures involve serious harm, or that they indicate the presence of any ongoing risk to the applicant or other individual officers.
The applicant also said that, after the March 2014 arrest of [Mr E], his boss transferred him to other duties for a while. The Tribunal notes that the staff information sheet includes mention of his transfer as team leader of a [specialised team] on 25 March 2014; and his promotion [in] April 2014. These match the timeline of the applicant’s undercover work on the [Mr E] case, and as such, could reflect recognition of his work and perhaps efforts to provide him with some added protection in the period immediately following [Mr E]’s arrest.
Threats to family
As noted above, the applicant wrote in his original statement that the attacks on him included threats to his family and an attempt to kidnap them. The April 2019 submission seeks to address the delegate’s concerns about the applicant’s different statements as to whether or not there were threats to his family. It notes that he ‘repeated many times that his family was targeted while he was there as a means to target him’ (and that these threats have since subsided, in his absence). At hearing, the applicant said that his family was in fact not attacked or threatened. Rather, he had general concerns for their welfare.
The applicant told the Tribunal that his family was not in fact subject to any harm or threats. However, he claimed that his wife was involved in a car accident, and he suspected that this had been done as a deliberate threat towards him. Asked about this claim at hearing, the applicant confirmed that he did not think there is any direct link to his protection claims, but he found it suspicious. The Tribunal accepts that the applicant’s wife may have been involved in some kind of accident, but it does not accept on the available material that this was related to this application.
The Tribunal found the applicant’s statements over time about the alleged threats to his family and the basis of his concerns for them to be changeable. It is not satisfied that this is attributable to any misunderstandings, based on whether they were threatened directly, or implicitly, or that he worried that they might be threatened. Rather, it is concerned that he initially included claims about his family to add gravity and urgency to his protection visa application, and that he has since wound these back, in order to address credibility concerns (such as why his family continued living in the family home in Ulaanbaatar). The Tribunal does not accept that there were any threats, direct or indirect, to the applicant’s family; or an attempted kidnapping; or any related harm. It also does not accept that the applicant genuinely feared such harm.
State protection

The applicant contends that he and his family are unable to get State protection anywhere in Mongolia. Neither the national [Mongolian Police Force], nor the local police were able to provide him with protection from the feared harm.
National police force: The applicant’s submissions also include claims that the [Mongolian Police Force], failed to protect him [previously]. For instance, one submission points out that they do not have ‘witness protection programs’ for [specified profession].
§ As noted above, the applicant described at hearing the routine security precautions that he and fellow officers took. He intimated that their employer put these practices in place, and they reflected a concern for the officers’ security.
§ He also commented that he felt somewhat safe, at least while at work, and[in the company of fellow officers]. By contrast, when he was off duty, he felt unsafe and anxious. As a result, he tried to work longer hours.
§ In the context of describing his fears about returning, he also said that his status as a [government employee] had afforded him some degree of protection from his enemies, whereas he would be at much greater risk of harm from these criminals if he returned to Mongolia as a civilian.
The Tribunal found these statements somewhat piecemeal. It has the impression that the applicant was struggling to reconcile his successful career in the [government] with his claims to fear persecution due to his activities there. The complaint that the Force lacks a ‘witness protection program’ for officers is puzzling. The Tribunal formed the impression that this is not the applicant’s own language, but rather the (former) representative’s way of highlighting that the Mongolian Police Force did not have in place adequate measures to protect [specialised team] officers and others who undertake dangerous work. In light of the above findings, however, the Tribunal is of the view that the applicant was not subject to ongoing specific threats, and that he did not require additional protection from the Mongolian Police Force. The Tribunal accepts that the applicant faced some degree of danger in many of the operations he participated in. However, it is not satisfied on the available material that the Mongolian Police Force failed to provide him with adequate protection, including for lack of any specific programs (such as ‘witness protection programs’).
Protection of local police: In his original statement, the applicant wrote that he reported ‘all of the attacks’ to the local police, and that he would be able to provide official reports of these. He has not provided any such reports, apart from the recent letter of support from a police officer in [specified district]. He also claimed that, following the May 2015 assault, he stopped informing his employer or the local police about security incidents (such as the severed puppy’s head) because he knew it would be futile.
The Tribunal accepts that the applicant reported the May 2015 assault. Given the applicant’s inability to identify the perpetrators, it is unsurprising that the investigation was short-lived and without results. It does not accept that the applicant drew the conclusion that the police were unwilling or unable to respond appropriately to any such incidents; and it does not accept that the applicant suffered subsequent assaults or threats, but opted not to report them to local police as it was futile to do so.
Infiltration of the police force, and potential threats to the applicant: The applicant’s original statement appears to claim that his opponents have contacts in the public service and have been able to get private information about his bank account details and movements. Subsequent submissions echoed and expanded on these concerns, for instance, claiming that the former [government official]’s associates have a presence in State agencies, and the Mongolian Police Force. When asked about these references at hearing, the applicant said that Mongolia lacks safeguards for private information, and it would be easy for ‘those people’ to gain access to personal data. Whereas the applicant initially claimed that his opponents have already accessed his data, his current position is that, taking into account general country information about corruption, this is merely a possibility.
In the Tribunal’s view, it is difficult to form a coherent picture from these various statements. At most, they seem to be stating that, from mid-2015, he stopped seeking police protection because he doubted their willingness to protect him; indeed, he feared that criminal elements had infiltrated their ranks and could put him in danger. At the same time, he suggests that his status as an officer with the national police force may have afforded him some degree of protection, at least while he was at work, ie. in uniform and with his colleagues.
Having found that the applicant was not subject to ongoing assaults, threats and other harm during this period, the Tribunal does not accept that he required police protection; that he decided not to seek local police protection because he thought they were ineffective or working in cahoots with criminal elements; or because his status as a [government employee] offered some degree of de facto protection, at least while he was at work. The Tribunal concludes that the applicant did not in fact require protection during this period.
Departure from Mongolia
The applicant claims that, even after he was reinstated to the rank of [Position 1] in December 2016, his ‘working conditions were untenable and frustrating’, and he remained concerned for his safety. He described having ‘abruptly terminat[ed]’ his work.
At hearing, the applicant said that he resigned from his position, and gave his work to his colleagues. The Tribunal understands this to mean that there was an orderly handover.
The Tribunal detects nothing in these circumstances to suggest that the applicant’s resignation was abrupt, or on bad terms. The applicant’s access to and presentation of his [public] service record, which was printed out [in] June 2019, suggests that he did not leave his work abruptly, or in response to any conflict with his employer (for instance, that he had not been provided with adequate security).
The Tribunal has accepted that the applicant’s work in [a specialised team] involved some danger during operations; that he had been involved in some high profile operations (including the 2012 arrest and the 2014 undercover work); that he had suffered some injuries (one at least of which occurred during a physical altercation); and that he had to exercise some degree of caution in daily life. It accepts as plausible that these factors caused the applicant stress, particularly over time. It also accepts that they influenced his decision to leave Mongolia and seek opportunities abroad, even though his career in the [public service] offered some benefits (such as promotion, training and sports events, and travel abroad).
However, the Tribunal does not accept that the applicant left Mongolia in response to any specific threats, given its findings above about the 2012 and 2014 operations, subsequent events, and the applicant’s own conduct. In his statements to IHMS staff and Department officers in early 2019, the applicant gave as reasons for leaving Mongolia that ‘bad people’ were threatening to kill him (he linked this with the exposure of his identity to them), that he had been in hiding, and that he had to be hyper-vigilant. These comments refer at least in part to the February 2014 operation against [Mr E]. While the Tribunal has accepted that the applicant had to be vigilant, for the reasons stated above, it does not accept the applicant’s suggestion that he faced ongoing threats from this or similar operations.
The applicant confirmed at hearing that he will not work with the [public service] on his return there. He offered no insights as to whether practical considerations – such as his absence in Australia for more than three years, or any age or fitness requirements relating to the [specialised team] – were relevant. In any event, the applicant’s confidence that he would not work with the [public service] again is consistent with the Tribunal’s view that the applicant may have found the nature of the work and its psychological impact on him onerous, and does not wish to resume it.
Findings
The Tribunal accepts that the applicant worked in the Mongolian [government]’s [specialised team], and that he participated in some high profile and potentially dangerous operations. These included the arrest of former [government official] at in 2012, and his pursuit of a drug gang in 2014 (although the Tribunal finds that he did not ‘infiltrate’ it in the manner claimed).
The Tribunal accepts that this work was physically and mentally demanding. However, it does not accept that the applicant’s work led to multiple assaults or credible threats against him; or that there were other, unexplained incidents that led him to believe he was in harm’s way. The Tribunal accepts the applicant suffered injuries in mid-2015 and that these may have been caused by an assault, but it does not accept that this was linked with his [employment] (including his involvement in the 2012 or 2014 incidents). Similarly, the Tribunal does not accept that the applicant was subject to assaults, threats or other harm from the targets of his [work] – such as other beatings, receiving a severed puppy’s head, being ‘demoted’ at work or indirect warnings such as his wife’s car accident.
The Tribunal accepts that the demanding nature of the applicant’s work may have influenced his decision to leave Mongolia, but it does not accept that he fled potential harm, including from specific threats or the cumulative effect of any ‘warnings’, or that he genuinely feared persecution or significant harm.
Assessment – Refugee Criterion
The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct, and relevant country information, whether he has a well-founded fear of persecution for any reason set out in s.5J(1) of the Act, on his return to Mongolia, now or in the reasonably foreseeable future.
The applicant claims to fear serious harm from: (a) former [government official] at and his associates, including his (former) bodyguard, due to his (the applicant’s) role in his high profile arrest in 2012; and (b) the crime boss [Mr E] and his associates, after the applicant played a critical role in [Mr E]’s arrest in February 2014. Although the applicant highlighted these operations, because his identity was disclosed during the course of them, a fair reading of his claims and evidence suggests that he claims to face more general risks, although he is unable to pinpoint them.
At hearing, the applicant was unsure what he would do if he returns to Mongolia, but it would not involve work for the Mongolian [government]. He thought he might work with a friend in a [business]. For the reasons stated above, the Tribunal accepts that he would not work as a [government employee] on his return. It finds that a key reason for this is that the applicant no longer wishes to do such work. It does not accept that this reflects any friction with the Mongolian [government], or any fear that he is at risk from within it.
The applicant has presented a range of country information about conditions in Mongolia, including organised crime and corruption in that country. The material before the Tribunal also includes reports on the high-profile operations that the applicant was involved in, the individuals concerned and some information about the structure of the [applicant’s employer]. Unsurprisingly, however, the Tribunal has not found specific information about the [department]’s operations, or security arrangements for current or former [employees].
In considering whether the applicant faces a real chance of serious harm in the reasonably foreseeable future, arising from his role in past operations, the Tribunal takes into account the following:
§ The Tribunal accepts that the applicant found some aspects of his work with the Mongolian [public service], such as his role in high profile and potentially dangerous operations, stressful; that this informed his decision to leave Mongolia; and that it contributed to his personal problems after he arrived in Australia.
§ In relation to his role in the arrest of ex-[government official in] 2012 and in the pursuit of the drug gang in February 2014, the Tribunal does not accept that the applicant was subject to any physical harm, threats or other adverse treatment in Mongolia in the wake of these operations. It also does not accept that, even cumulatively, he suffered serious harm amounting to persecution as a result of these or other operations (including harm from persons who might be linked with other cases).
§ The Tribunal considers that the passage of time – more than eight years have passed since [government official]’s arrest, and six years since [Mr E]’s, and three years since the applicant’s departure from Mongolia – further reduces any personal risks that might otherwise have arisen from his previous work.
§ The applicant drew attention to two factors that could point to ongoing risks: (a) [Mr E]’s release from prison last year, and (b) the fact that he would no longer be a [government employee] on his return to Mongolia.
- He claimed that, following his arrest in February 2014, [Mr E] was released from prison in June 2019. He expressed concern that [Mr E] has the money and thugs to go after him and others involved in his earlier arrest and conviction. There are no details or supporting evidence to support this claim, such as examples of [Mr E] targeting others involved in his arrest. And, as noted above, the Tribunal does not accept that [Mr E] or others acting on his behalf were involved in any attack in June 2015 or other incidents that the applicant claimed happened to him.
- The applicant also said that, while his work as a [government employee] afforded him some degree of protection, his return to Mongolia as a civilian will leave him exposed to greater risks. The applicant claimed to have felt relatively safe at work, that is, in uniform and with his colleagues, but unsafe and anxious when off-duty. He managed to avoid further attacks by spending most of his time at work. The Tribunal found this response improvised and unpersuasive. In its view, it does not adequately explain how the applicant avoided harm when off-duty in the years from 2014 to 2017, or why the applicant now fears that his return to Mongolia as a civilian a further three years later puts him at risk of persecution.
Taking all of these factors into account, the Tribunal finds that there is no real chance of the applicant facing serious harm amounting to persecution, in the reasonably foreseeable future, for any reason linked with his past work with the Mongolian [public service]. In relation to these claims, he therefore does not meet s.5J(1)(b). As such, the Tribunal does not need to consider whether such harm, which the applicant characterised as ‘retribution’, is for one or more of the reasons set out in s.5J(1)(a).
The applicant has also claimed that the Mongolian Police Force and other authorities will be unable to protect him from harm arising from his past work. Having found that he does not face a real chance of serious harm as a result of this work, the Tribunal concludes that the applicant will not need to rely on the national or local police forces to protect him, and s.5LA is therefore not applicable.
Other claims
In his submission of 9 July 2020, the applicant wrote that he fears that the Mongolian authorities will view his return there as suspicious, due to his having worked ‘on an exclusive job and sworn to secrecy’; and a source of embarrassment. He linked this with his ‘unceremonious resignation’ from the [public service]. He claimed to fear that the Mongolian authorities will punish him as a result.
At hearing, the applicant stated that he did not fear harm other than from the people he had worked against during [his employment]. While he spoke of the need for secrecy in relation to [his employment] (for instance, he could not give details of his work to even family members or friends), there is nothing in his evidence or his previous trips abroad to suggest that the Mongolian [government] or other authorities consider his work as a whole to be sensitive. Also, for the reasons stated above, the Tribunal does not accept that the applicant’s resignation from his work was ‘unceremonious’, or a matter of current or future adverse interest to the Mongolian authorities. The applicant’s advice at hearing that he would not work for the police on his return, but rather find work in a [business] or elsewhere, contained no hint that he feared harm from the authorities. This reinforces the Tribunal’s view that he does not have any genuine or well-founded fear of harm from the Mongolian authorities.
The Tribunal accepts that the applicant has had substance abuse problems (alcohol) and other personal issues in Australia. The applicant did not claim, and there is no other material before the Tribunal to suggest, that he a well-founded fear of persecution as set out in s.5J(1) related to any future medical needs, his experiences in Australia or any other factors.
In sum, the Tribunal finds that Mongolian criminals, politicians or others who have been the subject of [government] actions that the applicant led or was involved in have no ongoing adverse interest in him, for any reason at all, including for any or the reasons set out in s.5J(1). It does not accept that he has neither a genuine nor well-founded fear of serious harm amounting to persecution from the Mongolian authorities. In sum, it finds there is no real chance of him being subject to persecutory harm for any s.5J(1) reason, and that he has no genuine fear of such harm.
The Tribunal has considered the applicant’s claims and evidence cumulatively, including his prospects on return to Mongolia and relevant country information. It finds that he does not have a well-founded fear of persecution within the meaning of s.5J(1), and he does not satisfy s.36(2)(a).
Assessment – Complementary Protection
The Tribunal has considered whether on the evidence before it, there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Mongolia.
The Tribunal refers to the findings of fact above, its assessment of the applicant’s future conduct and its views of any associated risk. Most significantly, it does not accept that any of the targets of his past [employment] have an ongoing adverse interest in him. Having regard to his circumstances and relevant country information, the Tribunal is not satisfied that there are substantial grounds for believing that the applicant - as a former member of the Mongolian [public service] who was involved in high profile operations, or due to any other circumstance - will face a real risk of being arbitrarily deprived of his life, that the death penalty would be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment.
Accordingly, 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 he will suffer significant harm: s.36(2)(aa).
Overall conclusion
The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
James Silva
Member

ATTACHMENT - 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.84, 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.
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.
…
5H   Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:    For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36    Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2020] AATA 4704

14 August 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness