2203843 (Refugee)
[2024] AATA 2865
•12 July 2024
2203843 (Refugee) [2024] AATA 2865 (12 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Chaofeng Guan
CASE NUMBER: 2203843
COUNTRY OF REFERENCE: Mongolia
MEMBER:Linda Pearson
DATE:12 July 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Statement made on 12 July 2024 at 8:51am
CATCHWORDS
REFUGEE – protection visa – Mongolia – blamed for cousin's death by extended family members – victim of domestic violence – physical and sexual violence from father – mental health condition – religion – atheism – renounced shamanism and Buddhism – particular social group – women in Mongolia – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2CASES
MIMA v Khawar (2002) 210 CLR 1
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 March 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Mongolia, arrived in Australia [in] January 2013 and applied for the protection visa on 3 May 2016. The delegate refused to grant the visa on the basis that she was not satisfied that the applicant was a person to whom Australia owes protection obligations under s 36(2) of the Act.
The applicant appeared before the Tribunal on 3 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], a friend.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing, and provided written submissions after the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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 themselves 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 the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
CLAIMS AND EVIDENCE
The issue in this case is whether [the applicant] is either a refugee or a person who meets the criteria for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection.
Protection claims
The applicant provided a statement with her protection visa application in which she outlined her claims, stating that she had been threatened by community members and physically attacked because she did not belong to any religion, and that the police had refused to help a non-believer.
In a statutory declaration dated 20 July 2021 the applicant stated that that statement, drafted during a short interview at a lawyer’s office and signed without having an interpreter, was unreliable and should be disregarded.
In the statutory declaration the applicant stated that if forced to return to Mongolia she feared serious harm:
· By her family or people of shamanism because she is an atheist and because she has publicly refused to follow shaman and Buddhist practices; and
· By her family because she is a woman who has been subjected to long-term ongoing domestic violence.
In post-hearing submissions the applicant’s representative confirmed that the applicant’s claims are that she fears harm from her father; and from her cousin’s parents and relatives who blame her for the death of her cousin because she refused to comply with a request to send him to a shaman; and because her atheism will expose her to physical, psychological and emotional assaults.
Evidence before the Department
In her protection visa application the applicant stated that she was born in Ulaanbaatar, Mongolia. She provided no details of her family, other than to list as “Father [named]”, date of birth [date]. She stated that she had no contact with relatives outside Australia. She stated that she studied a “Bachelor [degree]” at [University 1] between [year range]; and provided no details of employment.
In her statutory declaration of 20 July 2021 the applicant stated by way of background:
· she was born on [date] in Ulaanbaatar, the capital of Mongolia. The population is around 3 million, and very few live outside the capital city; she has extended family who live in the countryside;
· her father used to have a business importing [products] from [Country 1] and after that business failed worked as a [Occupation 1]; her mother stayed at home and [sold products];
· she has an older sister who is a [Occupation 2], and a younger brother who is a [Occupation 1];
· at university she studied a Bachelor [degree], a course similar to [Discipline 1], and after graduating in [year] obtained a job with the [government];
· she has publicly renounced shamanism and Buddhism, but her immediate family have not; her parents and siblings believe in a mix of shamanism and Buddhism and her cousins aunties and uncles who live outside of Ulaanbaatar are very religious and follow shamanism.
The applicant outlined her claims based on family violence as follows:
· growing up, her father was a very violent alcoholic, and she remembers him screaming and hitting her from when she was 7 years old. His violence was primarily directed towards her mother and herself. Her father had always hated her and often said she was not his child. He was never violent to her siblings, only to her;
· her father was violent towards her approximately once per month and that continued until she left home in about July 2012 when she was working in the [government];
· when she started working for the government her parents expected her to bring more than her salary home because the government was well known to be corrupt and to accept bribes. She gave her parents about a third of her salary at the time but they asked her to steal money for them. She refused, which made her a target of her father’s violence;
· about once a month, usually when he was drunk, her father asked her for money. On one occasion he forced her out of the house, and another time he pulled her hair and kicked and hit her. Her mother and siblings did not intervene because in Mongolia the father is the owner of the household;
· she regularly suffered injuries including a swollen face, cuts and bruises and had to go to hospital twice, including in 2012;
· she called the police or went to the police station approximately 5 times however the police did nothing. The police in Mongolia are corrupt and usually only take action if you bribe them, and she was also reluctant to go to the police because her father had threatened to kill her if she reported him;
· after she was hospitalised in 2012 she found an apartment with flatmates and moved out;
· her father sexually abused her since she was a child, and threatened her that if she told anyone about it he would kill her. Even after moving out she hid where she was living from her family because she was fearful of them. Her siblings never offered to help her and if any of her family members or relatives knew where she was living they would tell her parents and she would get into danger;
· once when she was going home her father found out where she was living and attacked her outside the apartment and said he would kill her. He sexually abused her, and it was so violent she lost consciousness.
The applicant outlined her fears of harm based on her religious views:
· at university she refused to attend the Buddhist society and prayer meetings, and she received threats and was attacked on 3 occasions while at university. The incidents were, first, a person pushed her and threatened her; secondly two students pushed her and she fell and they kicked her; and thirdly, a student threatened her with a knife;
· after the third incident she went to the police who did not take any action, and she stopped publicly speaking her views about religion.
The applicant provided details of the death of her cousin:
· in 2012 a cousin on her father’s side came to the city from the countryside to study at university; they were close friends and he lived with her and her flatmate;
· About one month after moving in he developed a fever. She took him to a doctor and the hospital and was told that because he was young he would recover. The fever became worse; two weeks later she took him to the hospital again and he was diagnosed with tuberculosis (TB). After the diagnosis he survived only 2 months, and once it moved into his brain he did not leave hospital. She paid for some of his treatment herself, and his parents gave her money to take him to a shaman. Initially she said she would not take him to a shaman but on the third request she agreed; however she used the money to pay the hospital for his treatment;
· when her cousin’s parents came to the city they went to the shaman who confirmed she had not been to see him. Most of her relatives believe in the power of the shaman and that she is responsible for her cousin’s death. Her parents said it was her fault. She could not attend the funeral because her extended family threatened to kill her and her parents would not protect her, except for her aunty;
· her aunt on her father’s side hid her at her house and she did not see friends or other family. Her aunt helped her apply for a student visa, and they lodged the application on 14 November 2012; the visa was granted on 30 November 2012.
The applicant stated that she arrived in Australia [in] January 2013 and studied English for one year. During 2014 and 2015 she completed a [Qualification 1] and an [Qualification 2]. Her student visa was cancelled in May 2014 and she was unsuccessful in having it extended. She did not apply for a protection visa when she arrived in Australia because she did not know they existed. During the appeal process in 2015 she learned about the existence of the protection visa from the agent who helped her appeal to the Migration Review Tribunal; she did not apply until there was a final decision about her student visa as she was hopeful it would be extended.
In addition to the statutory declaration, on 26 July 2021 the applicant provided to the Department the following documents:
· Report dated 22 July 2021 by [Dr C], general practitioner, who provides pro bono medical care at the Asylum Seekers Centre (ASC);
· Referral dated 9 January 2020 by [Dr D], general practitioner, for an opinion and management of depression under a mental health care plan (MHCP).
[Dr C] states that the applicant was referred to the ASC health clinic by the casework team in 2018 as they were concerned for her mental wellbeing. She found the applicant to be severely depressed, with suicidal ideation, flat affect, insomnia, poor appetite with weight loss and poor concentration; she saw her regularly over the subsequent few months and improved with antidepressant medication but found it difficult to engage with psychosocial therapy as it was extremely difficult for her to speak about her past trauma. [Dr C] notes that over time it was clear that the applicant had been subjected to significant trauma before he departure from Mongolia. In May 2020 she completed a SPRINT assessment with her and her PTSD score was 26/32, consistent with severe disease. She was experiencing hypervigilance and avoidance most of the time, including flashbacks and nightmares, feeling fearful and on “high alert” all of the time; all well-described symptoms of PTSD. [Dr C] stated that the applicant’s PTSD would have a good prognosis if she can find assurance that she is safe and secure. She has found the applicant to be an intelligent woman who has mastered English well and has the potential to recover from her trauma given the right circumstances, and in her opinion remains at risk of relapsing into severe depression and possibly suicide if threatened to return to Mongolia.
[Dr D]’s referral for psychological counselling notes that the applicant was then currently on antidepressant medication.
Departmental interviews
The applicant was interviewed on 26 July 2021 and on 12 August 2021 by telephone. Her representative appeared by telephone, and the interview was conducted on both occasions with the assistance of an interpreter in the Mongolian and English languages. The Tribunal has listened to the recording of both interviews.
At the first interview the applicant gave evidence as to her background and previous travel. Asked why she waited from 2013 to 2016 to apply for a protection visa the applicant said that she came on a student visa to educate herself but when that was refused she decided to explore other ways to stay in Australia legally; she hoped that her family would forgive her while she was here on a student visa. She is not on social media, as she is worried that family members might contact her. She thinks her parents and siblings are in Mongolia; she rarely contacts them, once a year she calls and usually speaks to her mother. She does not know if she has any relatives living in Australia. The applicant gave evidence as to her education and employment in Mongolia consistent with that in her statutory declaration.
The delegate questioned the applicant about her application for a student visa. The applicant said her first intention was to study and improve her English and then study a Masters degree; she hoped that while she was studying in Australia her family would forgive her and the situation would become better, but she was wrong and the family has not forgiven her yet. They blame her for her relative’s death. The sponsor for her application was an aunt, a sister of her father but not direct, the daughter of her grandfather’s older brother.
Asked why she feared harm the applicant said reason number one is her father. From when she was young she was scared, almost every day he drank and he threatened her and would physically abuse her; he would ask her for bribes from the [government job]. Before she came to Australia due to fear she moved to a new place, because if he found her he is capable of killing her. In 2012 he managed to find her when she was outside her apartment and he beat her, assaulted her and raped her. That happened outside her place near the garage where people don’t walk around. She lost consciousness.
The delegate asked about the address she had given for her apartment, which she had not provided in her protection visa application. The applicant said that the address in the application is one that she partially owns and she thought she needed an official address for the visa. The new address was a temporary location to hide from her family at the time, and if she provided that address her family has influence and they would check and find her. The delegate questioned the applicant’s compliance with the requirement to provide all addresses, and the applicant said that she was absent minded because of all the things that had happened to her, and when she applied for the protection visa she only had half an hour and her English was poor. The delegate commented that the applicant had applied for the student visa herself and she had checked and signed the protection visa application. The applicant responded that at the time she applied for the student visa she had looked up every word and tried her best; for the protection visa she had the help of a lawyer and thought they would do the job properly.
The delegate asked the applicant who she feared harm from. The applicant responded that a relative had died and his parents and relatives blamed her for his death and they want to exchange her life for his life, and they threaten to end her life. She fears harm especially from her father and the parents and older sister of the deceased relative. She fears harm from people in Mongolia like the people at university who threatened her because she said she did not have any religion.
The interview on 26 July 2021 ended when the telephone interpreter was no longer available, and a further interview was scheduled for 12 August 2021. At the second interview the delegate asked for further detail about the applicant’s claim relating to family violence. Asked why she thought her father was violent towards her the applicant said that since she was young her appearance was different to her siblings, and he claimed she was not related to them. Her father loved her siblings more than her. She does not remember her siblings facing violence from him, but when he abused her mother and her they would do nothing, just crying. She always envied them. Asked if she tried to report it to the police the applicant said sometimes they would report it and the police would take him away for one or two days and he always came back, which made him more angry. Her father has someone high in the police and often uses him for support. Because of his violence and aggressive behaviour her neighbours would sometimes call the police but every time he would come back and get angry, and they are also afraid of him.
The delegate asked the applicant what her father did to her, and she responded that it was all types of violence, he would threaten her with a knife, hit or slap her and even rape her. She remembered the violence from about age 7, the rape was when she was around 13 because she was becoming a teenager and her breasts were getting bigger. The physical violence would often happen in front of her siblings so they were aware, and her father told them to stay out of it and they were afraid of him. They were not aware of the rape, that happened in secret and he said if she told anyone he would kill her. She moved out of home in May 2012, and that was when his behaviour was the worst.
The applicant said that her mother funded her university studies. She started working in 2009 and it took until 2012 to move out because her salary was not high and the costs were high. She moved to a place close to work and did not tell her family members the address. Her father called and texted her. She could not change her phone number because that was known by her colleagues and she thought it would be OK if she did not take his calls. Mongolia is a small place and he somehow found out the address and one day at the end of October 2012 he came and waited for her. He was physically violent, and raped her and she was unconscious on the road. After that she moved to a work colleague’s place for a temporary stay and after that went to a friend’s place. She did not provide the addresses on her application form because she thought he might find out about the new addresses, and the people who gave her temporary shelter did not want their address included. She hid herself well so she did not see her father again.
The delegate asked whether the applicant had any evidence to support her claim and the applicant said that when she was in Mongolia she had the text messages and photos but when she was here in Australia she told herself to start afresh and deleted them; at the time she did not know she would apply for protection.
The delegate asked about the death of her relative. The applicant said her cousin’s relatives blame her for his death. He was her cousin on her father’s side, and she is not sure how they were related because she has about 100 relatives. They used to live in the countryside. He died in early November 2012. They blame her because they are religious and believe in shamanism, and asked her to take him to a shaman; she spent the money on medical treatment. Her cousin was in Ulaanbaatar in order to study. He was the child of her grandfather’s brother’s grandchild. Even though they were distantly related they were quite close and friendly, he and she had similar opinions and values and he wanted to live with her when he came to Ulaanbaatar to study. The relatives lived in the countryside and did not have many relatives in Ulaanbaatar so he came to her and she was in charge of all his medical related costs. Because he was young he and the family thought he could be treated so everybody was optimistic, but his condition became worse fast and when his parents found out she did not go to the shaman they were angry with her. At the hospital they physically assaulted her and the police arrived, and she ran away and hid from them. Her immediate family members were not harmed, even they blamed her for his death.
The delegate asked the applicant about her religious beliefs. She said she would go with her family to religious activities but when she was university she started to express her religious concerns clearly and there was conflict with other students about religious opinion.
The delegate asked why the applicant delayed her arrival in Australia 2 months after her student visa was granted and she said that the director at work insisted that she prepare for the end of the calendar year and so she had to finish things before she could leave.
Asked what she feared would happen if she returns to Mongolia, the applicant said that they would threaten her life or kill her because her relatives would say how could she run from all of this after she made their son die; and she is afraid of her father and the people at university.
After the interview the applicant’s representative provided to the Department details of her mother and her siblings, and the addresses where she had lived in Mongolia and Australia.
Departmental decision
In considering the applicant’s claim that she was subject to domestic violence in Mongolia, the delegate stated that she found the applicant’s responses to be vague and lack clarity and detail. The delegate noted that the applicant remained with her parents until she was [age] years old, and during that time was able to complete a university degree and secure a position in the government sector, and was working for three years while living with her parents; that she had travelled with her mother and father to [Country 1], [Country 2] and [Country 3] for her father’s business; that she confirmed she is still in contact with her mother; and that she delayed in lodging her protection visa application. The delegate accepted that domestic violence is prevalent in Mongolia, and noted the country information relating to criminal sanctions, and resources available to combat domestic violence. The delegate did not find the applicant credible with regards to her claim, and did not accept that the applicant was subject to domestic violence in the manner claimed or that that would cause her to have a subjective fear of harm on return to Mongolia.
The delegate noted the applicant’s testimony that people were angry about her religious views, and that they had threatened her, but found her testimony inconsistent, and lacking documentary evidence in support. The delegate did not accept the applicant’s claims that she was harmed because of expressing her religious views in the manner and circumstances described and that that would cause her to have a subjective fear of harm on return to Mongolia.
The delegate considered the applicant’s claim to fear harm from her cousin’s family who blame her for his death, noting that the applicant had initially stated she could not remember the name of the hospital to which she had taken her cousin. The delegate did not accept that the applicant’s cousin died in the manner and circumstances described and that she was subject to harm from his family owing to that reason, and did not accept any of the claims made in relation to that incident noting that she was unable to provide any documentary evidence or detailed responses to questions relating to basic information.
The delegate considered whether the applicant’s mental health issues as referred to in the documents provided on 26 July 2021 impacted on her ability to provide evidence at interview. She noted that the applicant had stated on a few occasions that she was having difficulty recalling dates and some events, which may have been in part explained by her anxiety and mental health concerns, but was nevertheless satisfied that she was able to provide detailed answers and recall past events; and that neither she nor her representative had indicated she was not in a fit state to be interviewed at the time. The delegate accepted that the applicant has sought advice for her mental health concerns, however did not consider the claims of fear of harm based on domestic violence to have been the cause of her mental health concerns. The delegate placed little weight on the general practitioner’s letters and assessment in respect of the conclusions drawn on the cause of the applicant’s symptoms and experiences in Mongolia as those were prepared based on information provided by the applicant.
The delegate did not accept the applicant’s claims about her experience of domestic violence, her cousin’s death or her religious views and did not accept that she had a real chance of persecution for any other reason on return to Mongolia. The delegate was not satisfied that there was a real risk of the applicant suffering significant harm.
Evidence provided to the Tribunal
The applicant applied for review on 17 March 2022, providing a copy of the delegate’s decision.
The Tribunal listed the matter for hearing on 3 May 2024. Her representative returned the response to the Pre-hearing information request, and as requested, an interpreter in the Mongolian language was arranged.
Conduct of the Tribunal hearing
At the commencement of the hearing the applicant stated that she had not requested an interpreter and that she did not want to have an interpreter. Her objection was not based on the identity of the interpreter, stating that she did not know her; but because she would have to talk about sensitive matters. The Tribunal explained that the interpreter was a professional accredited interpreter who was bound not to disclose anything that took place during the hearing, and that it was essential that the applicant and the Tribunal could communicate so that she could give her evidence effectively. The applicant stated that she had studied English and [Discipline 2] before trying to extend her student visa, and she was insistent that she preferred to communicate with the Tribunal in English.
The Tribunal provided an opportunity for the applicant to discuss with her representative her wish to participate in the hearing in English. Following some further discussion, the Tribunal commenced the hearing in English, advising the applicant that if it became clear that there were issues in conducting the hearing in English, the interpreter would be asked to assist. The applicant’s representative concurred with that approach.
The hearing proceeded in English. The Tribunal was independently satisfied that the applicant was able to communicate appropriately in English in giving her evidence. There was no indication throughout the hearing that the applicant was experiencing any difficulty in understanding the Tribunal or providing her evidence.
Evidence given at the Tribunal hearing
The applicant confirmed that she relied on her statutory declaration of 20 July 2021, which was prepared with the assistance of her present representative. She had read that document and signed it, and its contents are true and correct. She corrected a reference in paragraph 17 to an injury inflicted by her father, stating that it was to the outside of her right leg not the inside.
The applicant confirmed her current address, stating that she had lived there since 2023 sharing with [Ms A]. The Tribunal asked about her university studies, and the applicant said that she lived at home while studying between 2005 and 2009, travelling each day to the university which was about a half hour walk away. She had only one job in Mongolia after graduating, with the [government department]. She believes her mother and father still live at that address, and that her name is still on the register. She owns a parcel of land in Mongolia, in [specified nieghbourhood], which was given to her by her boss because she was the best employee.
The Tribunal asked about her family in Mongolia. She thinks that her parents are still there. She never speaks to her father. She speaks to her mother in January when she phones to wish her a happy birthday; she does not think that her mother has her telephone number. She last contacted her sister before the Department interview, when she sent a message saying it would be helpful if she could provide a letter of support. She last spoke to her brother 2 years ago when she phoned her mother and he was next to her.
The Tribunal asked about her extended family. The applicant said that about 1 ½ million people live in Ulaanbaatar. She has relatives everywhere. On her father’s side she has about [number]-[number] cousins and [number] aunts and uncles. Her mother is one of [number] siblings and she has more relatives on her mother’s side, around [number] aunts and uncles and [number]-[number] cousins. The applicant indicated on a map of Mongolia the area where her relatives live, predominantly in the [named] region in south western Mongolia.
The Tribunal asked about her cousin coming to stay with her. The applicant said that she did not tell anyone her address, only her cousin. They usually talked on the phone, and she said to let her know if he wanted to live with her in Ulaanbaatar. He called her saying he had finished high school and wanted to study. The academic year in Mongolia starts in September and he came to her apartment in August. She picked him up from the bus station. It was three weeks before he became sick. He told his family he was living at the campus. Asked whether he told anyone where she was the applicant said his parents talked with her and sent money through the bank. She took him to the hospital and they sent him home, and she took him back. Once he had been diagnosed with TB at the end of October he stayed in hospital.
The applicant said that after his death she stayed with her aunt, who has a couple of apartments. Her family did not know where she was. Her aunt provided financial support for her student visa application, and she had copies of her educational records with her. She did not tell her family she had applied for a student visa.
The Tribunal asked the applicant about her employment in Australia, and she said she is a [Occupation 3] with an organisation called [Organisation 1]. [Details deleted]. She has been doing this work since September 2022 and before then was working as a [Occupation 4] at a [workplace], and [other work].
The Tribunal asked whether the applicant is still seeing [Dr C]; she said the last time she saw her was July 2021. She went once to the psychologist after the referral by [Dr D]. She is not taking antidepressant medication as she does not want to see a doctor to get a prescription. She stopped taking the medication in 2020. She has a life coach who has taught her to talk about the future, so she does not have to talk about the past. She has taught her a technique where she moves pictures around and then puts them in an album. She has not seen anyone at the ASC since before the Department interview; she has made some donations. She feels she is not alone when she is with her clients with mental health issues.
The Tribunal asked the applicant about her reasons for fearing harm. She said that she fears she will be killed by her cousin’s parents and others who say his death is her fault, as she was living with him, and responsible for taking him to hospital. She did not think he would die, and thought he would be cured. Her parents and her aunt and uncle screamed at her and pushed her and she fell over, so the hospital called the police. The police stopped them and she is not sure what happened after that. Her aunt took her. They tried to contact her, tried to call her, and said they wanted to kill her. Since she has been in Australia she does not use social media, and they do not know her phone number in Australia. Asked if anyone knows her number in Australia, the applicant said her sister. She uses an international card to call her mother. When she talks to her mother she asks how her cousin’s family are, and she says they still blame her; he was their only son.
The applicant said the second reason she fears harm is from her father. He was violent towards her since she was a child, and it became more serious and more violent, and he hurt her because she did not take bribes. He says he will kill her, and has seriously hurt her. He says she is not his biological child and that her mother cheated on him. Their second child should have been a boy, and she was not. When she talks to her mother she says that he still tells her she is a prostitute, and the applicant will be a prostitute. He has sexually assaulted her many times since she was a teenager, and she does not want to tell her mother. He has threatened her with a knife. Her main fear is from the family of her cousin because they believe she was responsible for his death.
The applicant said that she still fears harm because of her religious beliefs. She was quiet when she was at university because she was trying to hide bruises from her father, and some people thought they could target her and bully her. She stopped talking about religion once she was working. Ulaanbaatar is a small city and people from university see her. She experienced serious harm from a person from university while she was working, in 2011. She reported that to the police, and was told they would find the person, but she did not hear the outcome.
The applicant said she had reported her father to the police a couple of times, they arrested him, and he became more violent afterwards; he has a friend in the police department.
The Tribunal asked the applicant where she would live if she returned to Mongolia, and she said she would rent an apartment in Ulaanbaatar; she feared living in the countryside. She was not sure what work she would be able to do. Asked if she could live anywhere else in Mongolia, the applicant said she has family members everywhere.
The Tribunal discussed with the applicant the country information to the effect that bribery of government officials in Mongolia is criminalised, and her comment was that her father has a good friend in the police. The Mongolian community is very small, and bribery is easy. The Tribunal discussed the country information concerning rates of religious adherence in Mongolia, and the applicant said that she fears harm from the people who harassed her while she was at university. Everyone knows everyone. She had sought police protection before, but she thinks the police can be bribed.
The Tribunal spoke to [Ms A] by telephone. [Ms A] stated that she met the applicant in 2020, and they have shared a house since 2023. She does not know the detail about the applicant’s past as every time she speaks about it she gets upset and it is hard to continue the conversation. The applicant is fearful, and worried and distressed about the possibility of going back to Mongolia. She worries for her if she returns to Mongolia. The applicant has a couple of clients who rely on her and she is a caring person.
The applicant’s representative made brief oral submissions to the effect that corruption is an issue, and enforcement of the law is an issue. His submission is that the applicant is a member of a particular social group. He disagreed with the delegate’s decision that there was no evidence and a lack of detail. The focus of his submissions was on whether there was a ‘real chance’ of serious harm, noting that the applicant may be forced to live with her parents if she returns, and that it would be almost impossible for her to live in a remote area. Ulaanbaatar is a small community and the applicant has many relatives. While the country information is that 40 percent of the population states that they have no religion, most of the applicant’s relatives are religious and perhaps will harm her. Psychological harm could be an issue. The representative agreed to provide further submissions in writing.
The representative provided written submissions on 4 May 2024, submitting that the applicant’s claim to fear harm from her father is due to her membership of a particular social group, which might be described as Mongolian women who have a non-biological father. That claim also has components of political opinion because the applicant refused her father’s request to take bribes, which resulted in her being assaulted both physically and sexually. The representative submits that the claims relating to fear of harm from her cousin’s family members, and her atheism (lack of religious beliefs) which will expose her to physical, psychological, and emotional assaults, are related to her atheism and they constitute her fearing persecution for reasons of religion.
The representative submitted that all three involve serious harm, as they are instances of serious harm referred to in s 5J(5), in particular paragraphs (b) and (c), namely significant physical harassment of the person, and significant physical ill-treatment of the person; and they also involve systematic and discriminatory conduct.
The representative submitted that there is a real chance that the applicant’s fears will materialise again, and she cannot avoid such harm anywhere in Mongolia; and that the measures available in her home country are not effective. The country information shows that although the law in Mongolia states that family violence is a crime and the constitution provides for freedom of religion, family violence is still prevalent, and one may still incur significant physical harassment or ill treatment for a lack of religious belief. This might be due to widespread corruption or traditional values regarding the male’s role in a home and the role of religion in their lives. The applicant cannot take reasonable steps to modify her behaviour to avoid a real chance of persecution.
Further, the harms the applicant will suffer when she returns to Mongolia are significant harms defined in s36(2A) because she will be subjected to inhuman or degrading treatment as defined in s5 of the Act.
Post hearing s424A information
At the hearing the applicant provided her father’s full name and date of birth. After the hearing the Tribunal put in writing information obtained from the Department records concerning the travel of the applicant’s parents and siblings, and invited her to comment or respond. That information was as follows:
· The applicant’s [father] (DOB [date]) was in Australia [between] April 2017 [and] March 2018
· The applicant’s [mother] (DOB [date]) was in Australia [between] August 2013 [to] June 2014
· The applicant’s [brother] (DOB [date]) has travelled to Australia [between] September 2022 [and] August 2023, and arrived back in Australia [in] August 2023
· The applicant’s [sister] (DOB [date]) travelled to Australia [between] August 2016 [and] October 2019, and [between] November 2019 [and] January 2023, and returned to Australia [in] February 2023.
The invitation to respond or comment stated that the information was relevant to the review because the presence of the applicant’s family members in Australia at various times since she arrived in 2013 may cast doubt on the credibility of the evidence at hearing that she had had no contact with them other than a telephone conversation with her mother in January and a message in 2021 before the Departmental interview requesting that her sister provide a letter of support for the application. That may lead the Tribunal to find that the claims to fear harm from her family members in particular her father should she return to Mongolia are not credible, and that that part of the claims should not be accepted.
The applicant responded, stating that she was completely unaware of her father’s presence in Australia [from] April 2017 [to] March 2018, and his unexpected arrival and presence here were deeply unsettling for her; fortunately, there was no contact between them during this period. She suspected her sister might have informed him that she did not have her contact information, thereby ensuring her safety. Her mother and aunt both visited her in Australia, a visit she was aware of and deeply appreciated. Their trip was primarily intended to ensure her safety and offer support. She was not aware of her brother’s recent travels to Australia, and they have had no contact. Similarly, she had no knowledge of her sister’s multiple entries into Australia and has maintained no contact.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of nationality
The applicant provided to the Department a copy of her Mongolian passport and Mongolian National ID card. The delegate was satisfied that the applicant had provided sufficient evidence of her identity consistent with her narrative and biometrics and that she is a Mongolian citizen. There is no evidence to the contrary, and the Tribunal finds that the applicant is a Mongolian citizen, and that Mongolia is her receiving country for the purposes of assessing her claims for protection.
Personal background
The applicant is a [age] year old woman born in Ulaanbaatar, Mongolia. She arrived in Australia in January 2013 as the holder of a TU572 Student Visa. As found by the delegate, in 2015 she applied for a further Student visa, and that application was refused on the ground that the application was not made within 28 days after the day on which her previous visa expired. An application for review to the then Migration Review Tribunal was unsuccessful. Departmental records confirm that the applicant has held a Bridging visa since then.
The applicant’s evidence is that she is the second child of her parents, with an older sister and a younger brother, and that she lived with her family in Ulaanbaatar until moving to an apartment in 2012. After completing her high school education the applicant studied from [year range] at [University 1], graduating with a [specified degree], and after graduating she worked at the [government] department until her departure for Australia.
The Tribunal accepts that evidence, which has been consistently provided.
Credibility
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Applicants may have difficulty presenting evidence due to experiences in their home countries, as recognised by the Full Court of the Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
…refugee cases may involve special considerations arising out of problems in communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
The Tribunal has had regard to the Guidelines on the Assessment of Credibility, the Department’s Refugee Law Guidelines, and the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and the Guidelines on International Protection,[1] which emphasise that the Tribunal should be mindful of the various factors which may impact on evidence. The Tribunal should approach the assessment with an open mind, and give the benefit of the doubt to an applicant who is generally credible. The Tribunal’s Guidelines on the Assessment of Credibility note in particular that presentation of evidence may be impacted by cultural behaviours, mental health issues or levels of education, as well as levels of stress caused by separation from home and family. The Tribunal does not consider things such as minor changes in dates, minor details omitted from claims in the written application or supporting submissions, or minor mistakes or omissions from an applicant’s personal history would, on their own, undermine an applicant’s credibility.
[1] Guidelines on the Assessment of Credibility, Administrative Appeals Tribunal Migration & Refugee Division, July 2015; UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, February 2019.
The applicant’s claims in this matter include claims of past and feared future physical and sexual violence from her father, and her fear of harm from her extended family members. The Tribunal has approached the assessment of credibility bearing in mind the difficulty often experienced for women in talking about their experiences of domestic and family violence.[2] The applicant’s difficulty in talking about her experiences in Mongolia was apparent in her evidence to the Tribunal, in particular her reluctance to speak of those experiences before an interpreter and her need for breaks during the hearing. It is consistent with how the Departmental interviews proceeded, with the applicant becoming noticeably distressed at times. And it is also consistent with [Dr C]’s observations in 2021 that the applicant had found it difficult to engage with psychosocial therapy as it was extremely difficult for her to speak about her past trauma.
[2] Australian Government Attorney General’s Department, Australian Institute of Judicial Administration, University of Queensland & University of Melbourne National Domestic and Family Violence Bench Book June 2021 (National Domestic and Family Violence Bench Book), 5.1.
The Tribunal has considered the medical evidence provided to the Department. The Tribunal accepts that [Dr C] is a General Practitioner with experience in providing medical care to asylum seekers through the Asylum Seeker’s Centre. On first assessment in October 2018, [Dr C] noted that the applicant was severely depressed, with suicidal ideation. There was some improvement with antidepressant medication. In May 2020 a SPRINT assessment confirmed a diagnosis of PTSD. [Dr C] noted that the applicant was experiencing hypervigilance and avoidance most of the time, with flashbacks and nightmares about past incidents, and was fearful and on high alert all the time; all well-described symptoms of PTSD. [Dr C] commented that it was clear that the applicant had been subjected to significant trauma before her departure from Mongolia. The applicant confirmed at the hearing that she has not engaged with health professionals, or taken medication as prescribed by them, since 2021, preferring to manage her mental health issues by positive thought techniques taught by a life coach. While the applicant stated that she finds this approach helpful, the Tribunal notes the conclusion expressed by [Dr C] that the applicant remains at risk of relapsing into severe depression.
The delegate accepted that the applicant had sought medical advice for her mental health concerns, however placed little weight on [Dr C]’s conclusions as to the cause of the applicant’s symptoms and experiences in Mongolia as the assessment was prepared based on the information provided by the applicant. The delegate did not accept that the applicant’s claimed experiences in Mongolia were the cause of or exacerbated any mental health concerns.
Having listened to the recordings of the Departmental interviews, having read her written statements, and having heard her oral evidence at hearing, the Tribunal is satisfied that the applicant has been materially consistent in her claims and evidence throughout the proceedings. At times the applicant has found it difficult to recall precise detail, such as her explanation at interview for not including all her addresses in Mongolia that her head was “messy”, and that she was absent minded. The Tribunal does not regard those occasional lapses as indicating a lack of truthfulness, but rather as consistent with the supporting medical opinion as to past trauma and the diagnosis of PTSD. In assessing the applicant’s credibility the Tribunal places weight on [Dr C]’s opinion, provided by an experienced and qualified practitioner and based on an engagement with the applicant over a period of time together with a formal psychological assessment, in addition to what the applicant told her.
The Tribunal does not share the delegate’s credibility concerns, and finds that the applicant’s claims to be credible and her account with respect to the central issues reliable.
Analysis, reasons and findings
The applicant’s claims for protection are, in summary, based on her fears of serious harm:
· from her father, based on past experiences of physical and sexual violence;
· from the family of her cousin, based on their blaming her for his death; and
· because of her lack of religious belief.
The applicant’s fear of harm from her father
The applicant has been consistent in her evidence about her relationship with her family and the violent and controlling behaviour to which she was subjected by her father. The Tribunal accepts her evidence that his verbal and physical abuse began when she was a young child, directed primarily at her and her mother, because her father maintained, based on her physical appearance, that she was not his biological child. The Tribunal accepts the applicant’s evidence that that violence took the form of hitting and slapping, and pulling her hair, and threats to use a knife; that she sought medical attention for cuts and bruises; that the violence was exacerbated when her father was drunk; and that while her siblings were aware, they could not or would not intervene. The Tribunal accepts the applicant’s evidence that she and her mother sought help from police on more than one occasion, however when her father returned after being arrested he was more violent than before.
The Tribunal acknowledges that there is no corroboration of this account from any family member. The Tribunal accepts the applicant’s evidence that her sister was unwilling to provide supporting evidence. The National Domestic and Family Violence Bench Book notes that different children in the same family may give dramatically different statements and testimony as a consequence of different experiences, for example, one child may be the targeted child, another may be the protected child.[3] The Tribunal accepts the applicant’s evidence that she was unaware of her father’s presence in Australia in 2017-2018, and that she has no contact with him or with other immediate family members apart from her mother by telephone. Her efforts to sever, and to not maintain, contact with other family members is consistent with the assessment of [Dr C], who noted that her hypervigilance and avoidance are symptoms of PTSD.
[3] National Domestic and Family Violence Bench Book,4.4.3.
The Tribunal accepts the applicant’s evidence that her father’s abuse and physical violence manifested itself in sexual assault from around the time of puberty, and continued while she was living in the family home; and that that was not known by her mother or other family members. Her father’s abusive behaviour continued after she graduated and refused to demand bribes in her employment. The Tribunal is satisfied that the violence occurred, notwithstanding that the applicant did not leave the family home as soon as she found employment; the Tribunal accepts her explanation at interview that she had to wait until she could afford to do so. The Tribunal accepts that while the applicant attempted to keep secret her new address after moving out of the family home in 2012, her father was able to track her down in October 2012, and he assaulted and raped her.
The coercive, controlling and violent behaviour that the applicant experienced from her father over many years is properly characterised as family violence, which is a complex pattern of violent and abusive behaviours that seek to isolate, degrade, exploit and control victims. Family violence often takes place between intimate partners, but may also occur between immediate and extended families and other communal or extended kinship relationships of mutual obligation or support; and while family violence can affect a person irrespective of gender, it is widely acknowledged that women are significantly more likely than men to experience family violence.[4] A victim leaving an abusive relationship may be viewed by the perpetrator as a direct threat to the perpetrator’s ability to maintain control over the victim, and research has shown that one of the most dangerous times for a victim is in the months after separation when the perpetrator may use a variety of tactics to reassert control over the victim.[5]
The applicant’s fear of harm from her extended family
[4] National Domestic and Family Violence Bench Book, 3.1.
[5] National Domestic and Family Violence Bench Book, 4.1.
The applicant’s fear of harm from her cousin’s family is based on their blaming her for his death in November 2012. The applicant’s evidence that her cousin came to live with her in Ulaanbaatar when he started university studies in mid 2012, that he became unwell, and that she sought and obtained medical assistance for him until his death in hospital from TB in November 2012, has been consistent. The Tribunal accepts that evidence.
The applicant asserts that the family conflict arose because of her refusal to seek treatment for her cousin from a shaman. She claims that while she has renounced Buddhism and shamanism, her immediate family believe in a mix of shamanism and Buddhism, and her extended family members living outside Ulaanbaatar are very religious and follow shamanism.
The Mongolian Constitution provides for freedom of conscience and religion, prohibits discrimination based on religion, and mandates separation of the activities of state and religious institutions.[6] Buddhism is the most commonly practised faith in Mongolia, and where there is negative public sentiment towards ‘foreign’ religious groups, that term is used to refer to non-Buddhist and non-shamanist religious groups.[7] The US Department of State reports that of the estimated population of 3.3 million in Mongolia, 59.4 percent of those aged 15 and over identify as religious, while 40.6 percent state they have no religious identity. Of those who express a religious identity, 87.1percent identify as Buddhist, 5.4 percent as Muslim, 4.2 percent as shamanist, 2.2 percent as Christian; and many individuals practice elements of shamanism in combination with other religions, particularly Buddhism.[8]
[6] US Department of State International Religious Freedoms Report for 2023.
[7] US Department of State International Religious Freedoms Report for 2023.
[8] US Department of State International Religious Freedoms Report for 2023.
The Tribunal accepts the applicant’s evidence that she has no religious faith. That is the situation for nearly half the population of Mongolia. On the evidence before the Tribunal, the applicant’s fears of harm from her cousin’s family are attributable to their anger at her cousin’s death because of her failure to follow their wish that he be treated by a shaman, rather than her lack of religious belief as such. The Tribunal accepts that as a consequence of that anger and desire for revenge there was an incident at the hospital at the time her cousin died when her relatives assaulted her and the police were called; and there have been ongoing threats to kill her, relayed in phone calls with her mother.
The applicant’s fear of harm based on her lack of religious belief
As noted above, the Tribunal accepts that the applicant has no religious belief, in circumstances where her immediate family share religious beliefs in common with a majority of those in the country who state that they have a religious identity, and where close to half the population do not.
The specific harm asserted by the applicant based on her lack of religious belief comes in the form of incidents while at university, when she felt able to publicly state that was the case. The Tribunal accepts her evidence that her public statement of lack of religious belief made her a target for harassment by some of her fellow students while at university, and subsequently when recognised by former fellow students.
Assessment against the refugee criterion
The Tribunal must consider whether the applicant has a well-founded fear of persecution for one or more of the reasons specified in s 5J(1)(a) if returned to Mongolia. The Tribunal must decide whether it is satisfied that there is a real chance that, if the applicant is returned to Mongolia, she would be persecuted for one or more of the reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal must decide if it is satisfied that the real chance of persecution relates to all areas of Mongolia, and whether effective protection measures are available to the applicant in Mongolia.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted for one or more of the reasons of race, religion, nationality, membership of a particular social group or political opinion. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[9]
[9] Chan v MIEA (1989) 169 CLR 379.
The Tribunal accepts that the applicant fears that her father will abuse her and mistreat her if she returns to Mongolia. She has taken steps to avoid contact with him, and regards herself as being safe while away from him. The Tribunal accepts that she claims to fear her cousin’s family members, and that she hid with the assistance of an aunt after being assaulted in the hospital when her cousin died until her departure for Australia. The applicant’s delay in applying for a protection visa, in the context where she was hoping that the family circumstances would improve while she continued her studies, does not in the Tribunal’s assessment diminish the subjective fears held by the applicant.
The independent country information, considered further below, supports a finding that the fears held by the applicant are objectively well founded. There is a high rate of gender based violence and a lack of psychosocial and other support available in Mongolia. There have been amendments in 2017 to the Law to Combat Domestic Violence criminalising domestic violence and providing measures to protect survivors and witnesses and accredit non-governmental organisations to provide services, and the Mongolian Police has a new division in charge of preventing crimes, explicitly including domestic violence, established in March 2017 which is responsible for training officers in the new law.[10] However, notwithstanding those changes, enforcement and cultural change remain an issue. While new temporary shelters and one-stop centres for victims of domestic violence have been established, there are only 20 shelters and 17 one-stop service centres for domestic violence survivors run by police, NGOs, local government agencies and hospitals, and a relatively small number of shelters located in rural areas.[11] The UN Committee on the Elimination of Discrimination against Women found in 2022 that there had been a low number of cases prosecuted under the revised Law to Combat Domestic Violence; that judges, police and others have limited understanding of the dynamics of domestic violence and their responsibility to address it; that the provision of multidisciplinary services remains inconsistent and limited; and there is a lack of specialised courts dealing with cases of gender-based violence.[12]
[10] DFAT Cable ‘Country of Origin Information Request – Mongolia – Part 2 of 2’ CXC90406612315, 11 August 2017.
[11] US Department of State Country Reports on Human Rights Practices for 2023, p 19.
[12] United Nations Committee on the Elimination of Discrimination against Women ‘Concluding observations on the tenth periodic report of Mongolia’, 12 July 2022; US Department of State Country Reports on Human Rights Practices for 2023, pp18-19.
The Tribunal accepts that the applicant’s father and her extended family continue to be motivated to harm her. The violence and abuse directed at her from her father and his controlling behaviour continued from childhood into her adulthood, and included his locating her after she had left the family home. The threats from her extended family members have continued, relayed to her by her mother.
100. The Tribunal is satisfied that the applicant has experienced at least some of the instances of serous harm identified in s 5J(5) at the hands of her father, namely significant physical harassment and significant ill treatment, and that there is a real chance that she would again if returned to Mongolia now or in the foreseeable future. In the context of the incident of harm at the hospital in 2012 and the threats continuing over the years since her cousin’s death, the Tribunal is satisfied that there is a real chance that the applicant will also be subjected to serious harm, including threats to her life or liberty and significant physical harassment, from her extended family.
101. In considering whether the real chance of serious harm is for one or more of the reasons specified in s 5J(1)(a), the Tribunal has considered the applicant’s claims on the basis that the harm she fears is directed at her for the reason of her gender and her membership of the particular social group ‘women in Mongolia’. The Tribunal is satisfied that the group ‘women in Mongolia’ is identifiable by the characteristics of gender and nationality, and meets the elements of the definition in s5L of the Act, for the following reasons:
· there is a characteristic shared by each member of the group and the applicant, which is the female gender (s5L(a) and (b));
· the characteristic is innate (s 5L(c)(i));[13] or
[13] Noting that the Explanatory Memorandum to the Bill which introduced s 5L stated that gender is innate: Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), at [1220].
· the characteristic distinguishes the group from society (s 5L(c)(iii));[14] and
[14] Codifying the decision in Applicant S v MIMA (2004) 217 CLR 387.
· the characteristic is not a fear of persecution (s 5L(d)).
102. The courts have consistently found that the term ‘particular social group’ should be interpreted broadly, and on the whole have accepted that women, or a subgroup of women, can comprise a social group. In MIMA v Khawar (2002) 210 CLR 1 the High Court accepted that women or a subgroup of women can comprise a particular social group, Gleeson CJ finding that it was open for the Tribunal to determine that women in Pakistan were a social group and that the size of the group did not stand in the way, as ‘women in any society are a distinct and recognisable group and their distinctive attributes and characteristics exist independently of the manner in which they are treated’.[15] The Tribunal is satisfied that the applicant is a member of the particular social group of women in Mongolia.
[15] (2002) 210 CLR 1 at [35].
103. The Tribunal finds that if the applicant were to return to Mongolia, there is a real chance that she would be subjected to serious harm at the hands of her father and members of her extended family, including threats to her life, and significant physical harassment and ill-treatment. That harm falls within the definition of family violence, and is gender based.
104. The applicant’s claims about her experiences of family violence are consistent with independent country information about the situation for women in Mongolia. The US Department of State reports that domestic violence is a serious and widespread problem in Mongolia.[16] In 2017 a national study on gender-based violence in Mongolia was published by the National Statistics Office of Mongolia and the United Nations Population Fund. Women viewed Mongolian society as patriarchal and that men impose their wants and desires and demand that women should comply.[17] The study found that 58 percent of women in Mongolia have experienced some form of violence (physical, sexual, emotional, economic and/or controlling behaviours) by an intimate partner.[18] Societal attitudes and a culture of entrenched male dominance have been noted by the most recent report by the UN Committee on the Elimination of Discrimination against Women, which concluded that while there had been some progress in undertaking legislative reforms, Mongolia still lacked a comprehensive strategy aimed at eliminating discriminatory stereotypes against women, and a lack of funding for multidisciplinary services resulted in the inadequate prevention of and response to domestic violence.[19]
[16] US Department of State Country Reports on Human Rights Practices for 2023.
[17] ‘Breaking the silence for equality: 2017 National Study on Gender-based Violence in Mongolia’ UN Population Fund, 1 June 2018, 20210122154145.
[18] ‘Mongolian women get help to escape violence even amid pandemic’ UN Population Fund, 17 December 2020, 20210210114528.
[19] United Nations Committee on the Elimination of Discrimination against Women ‘Concluding observations on the tenth periodic report of Mongolia’, 12 July 2022.
105. Taking into account that contextual information, and the applicant’s individual circumstances, the Tribunal finds that the essential and significant reason for the harm that will be directed at the applicant by her father is her gender and her membership of the particular social group of women in Mongolia. The Tribunal accepts that the applicant was the target of her father’s abuse and violence because she was not a son and because she did not resemble other family members. The applicant’s father was also violent towards her mother, accusing her of infidelity and of being a prostitute as part of his accusations that the applicant was not his biological child. The Tribunal accepts that past attempts to seek police protection only exacerbated the abuse. The Tribunal is satisfied that the applicant fears harm from her father because she is a woman and she is afraid that he will inflict harm on her because he is aware that the state will not protect her.
106. The harm the applicant fears from her cousin’s family members is more difficult to characterise. At the time her cousin came to Ulaanbaatar to start his university studies, the applicant was aged [age], had been employed for three years, and was Iiving independently. She had responsibility for her cousin’s care while he was in Ulaanbaatar, as his family sent her money when he became unwell. In all the circumstances, and in the context of entrenched societal discriminatory stereotypes as referred to above, the Tribunal finds that the harm the applicant fears from her extended family is directed at her for the combined reasons of her gender and a desire for revenge for her failure to comply with their instruction that she seek help from a shaman.
107. In contrast to the circumstances of past and feared harm from her father and extended family, the Tribunal does not regard the past harassment by former fellow university students based on her lack of religious belief as rising to the level of serious harm.
108. The Tribunal is satisfied that the harm the applicant fears from her father and her extended family falls within the definition of family violence referred to above, involves systematic and discriminatory conduct, is gender based, and will be directed to her for the essential and significant reasons of her membership of the particular social group ‘women in Mongolia’.
109. The Tribunal is required to consider whether the real chance of persecution relates to all areas of the receiving country: s 5J(1)(c). Mongolia is the most sparsely populated country in the world. Half of its population of 3.3 million live in Ulaanbaatar; and while the economy traditionally was based on herding and agriculture, the mining sector now accounts for over 25 percent of the country’s gross domestic product.[20] The applicant’s evidence was that should she return to Mongolia she would live in Ulaanbaatar, and she would be too scared to live in the non-urban areas of the country. The Tribunal accepts that as an educated, single woman, the applicant’s prospects for employment and accommodation would mean she would be likely to return to Ulaanbaatar. In assessing whether she is at risk of harm in Ulaanbaatar or elsewhere in Mongolia, the Tribunal accepts her evidence that she has a large extended family, and many relatives on both her father’s and her mother’s sides. While one relative, described by her as an ‘aunt’ and related through her grandfather’s older brother, was prepared to assist her with her student visa application and with accommodation, the Tribunal accepts that that attitude would not be shared by all. The applicant has extended family members in rural areas of Mongolia. The Tribunal finds that given the large number of family members likely to be in a position to recognise her, both in Ulaanbaatar and outside the capital, it is likely that she would be recognised and that her father and other extended family members would be able to locate her. Given her experience of harm when her father located her five months after she moved out of the family home in 2012, the Tribunal accepts that her father has the necessary level of motivation to locate and access the applicant wherever she is living. While she was able to remain undetected for the approximately two months while living with her aunt before she left Mongolia, that was a relatively short period of time. The Tribunal accepts that her fears of being located, and as a consequence harmed, should she return to live in Mongolia, are realistic.
[20] United States Congressional Research Service, ‘Mongolia In Focus’, 26 October 2022 The Tribunal is satisfied that the real chance of persecution relates to all areas of the receiving country. The Tribunal is not satisfied that there is a safe place of relocation for the applicant. Based on the country information discussed above, and her past experiences of contact with police, the Tribunal is not satisfied that effective protection measures are available to the applicant in Mongolia. The country information referred to above indicates that despite some progress over the years, the existing laws and enforcement mechanisms for responding to domestic and family violence do not provide adequate protection for victims.
111. It follows that the applicant faces a real chance of persecution if she returns to Mongolia, now or in the reasonably foreseeable future. The Tribunal finds that if the applicant were to be removed to Mongolia there is a real chance she would face threats to her life or liberty, significant physical harassment and significant ill-treatment at the hands of her father and extended family members. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act, and that that harm involves systematic and discriminatory conduct as required by s 5J(4)(c). The Tribunal is satisfied that the real chance of persecution relates to all areas of Mongolia, and that the essential and significant reason for her fear of persecution is her membership of the particular social group of women in Mongolia. There is no evidence before the Tribunal to indicate that the applicant has a presently existing right, however expressed, to enter and reside in any other country, and accordingly s 36(3) of the Act does not apply.
CONCLUSION
112. For the reasons above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. She meets the definition of refugee in s 5H of the Act, and accordingly satisfies the criterion in s 36(2)(a).
DECISION
113. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Linda Pearson
MemberATTACHMENT - 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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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