1409613 (Refugee) [2015] AATA 3533 (21 October 2015)

Last Updated: 6 November 2015

1409613 (Refugee) [2015] AATA 3533 (21 October 2015)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1409613

COUNTRY OF REFERENCE: Mongolia

MEMBER: Linda Symons

DATE: 21 October 2015

PLACE OF DECISION: Sydney

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

Statement made on 21 October 2015 at 12:38pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant, who claims to be a citizen of Mongolia, arrived in Australia [in] January 2008 as the holder of a Mongolian passport in the name of [Mr A]. He arrived in Australia as the holder of a Visitor visa. His Visitor visa expired [in] February 2008 and he thereafter remained in Australia as an unlawful non-citizen. [In] February 2008, he was granted a Bridging visa in association with his first application for a Protection visa which was lodged in the name of [Mr B]. He was granted [several] further Bridging visas the last of which expired [in] August 2011. He thereafter remained in Australia as an unlawful non-citizen. [In] September 2013, he was granted a Bridging visa. He has been granted two further Bridging visas since then.
3. The applicant lodged his first application for a Protection visa with the Department of Immigration and Border Protection (the Department) [in] February 2008. This application was lodged in the name of [Mr B] and he claimed to be a citizen of China. This application was refused by the delegate [in] May 2008 on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention. The applicant applied to the Tribunal on 26 May 2008 for review of that decision. On 22 August 2008, the Tribunal (differently constituted) affirmed the decision of the delegate.
4. [In] October 2008, the applicant made an application to the Minister for Immigration and Citizenship (as it was then called) for Ministerial intervention under s.417 of the Act. This application was unsuccessful. [In] September 2011, the applicant made a second application to the Minister for Immigration and Citizenship (as it was then called) for Ministerial intervention under s.417 of the Act. This application was unsuccessful [in] October 2011. [In] March 2013, the applicant was detained under s.189 of the Act. [In] May 2013, he lodged a request under s.48B of the Act. [In] May 2013, he made a third application to the Minister for Immigration and Border Protection for Ministerial intervention under s.417 of the Act.
5. The applicant lodged his current application for a Protection visa with the Department [in] October 2013, pursuant to SZGIZ v MIAC [2013] FCAFC 71; (2013) 212 FCR 235 (SZGIZ), and the delegate refused to grant the visa [in] April 2014. On 30 May 2014, he applied to the Tribunal for review of this decision.
6. The applicant appeared before the Tribunal (differently constituted) on 23 April 2015 to give evidence and present arguments. Unfortunately, the Member constituting the Tribunal was unable to finish the review before he stopped being a Member.
7. The applicant appeared before the Tribunal as presently constituted on 20 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.
8. The issue that arises on review is whether Australia has protection obligations to the applicant under the complementary protection criterion.

RELEVANT LAW

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

Refugee criterion

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

Complementary protection criterion

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

Section 499 Ministerial Direction

12. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment 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.

Further application for a Protection visa made before 28 May 2014

13. Section 48A imposes a bar on a non-citizen making a further application for a Protection visa while in the migration zone in circumstances where the non-citizen has made an application for a Protection visa which has been refused. The Full Federal Court in SZGIZ has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a Protection visa which duplicates an earlier unsuccessful application for a Protection visa, in the sense that both applications raise the same essential criterion for the grant of a Protection visa.

CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

First application for a Protection visa lodged [in] February 2008

14. The applicant’s claims in his first application for a Protection visa lodged with the Department [in] February 2008 are summarised as follows:
    • His name is [Mr B] and his date of birth is [date]. He is a citizen of China.
    • He believes that he can no longer maintain a normal life in Mongolia without constant fear for his life and safety. He left his country fearing persecution for reason of his political opinion.
    • During 1960, the Chinese government had a policy where Chinese men were made to settle down with Mongolian girls. The main purpose of this policy was to destroy minorities’ languages, cultures, religions and nationalism and assimilate minorities into the main ethnic group which was Chinese. Mongolian girls were forced to marry and live with Chinese men.
    • At that time, Chinese nationals were allowed to work in administration in the Inner Mongolian government to implement the policies of the Chinese government and the Chinese Communist party. Those who did not comply with their policies were punished. His [father] was a Chinese man. That is all he knows about his father.
    • Since he was a child he has [done certain work]. In [year] he started primary school in a local Chinese school. There are no Mongolian primary schools. Due to language difficulties and the strict rules of the school, he left the school. In his visa application, he claimed that he attended High School between September [year] and May [year].
    • Although Inner Mongolia had an autonomous government, the Chinese government and the Chinese Communist Party ignored it and behaved arrogantly towards them. Some young people establish the “[name deleted]” group in 1987 to oppose the policies of the Chinese government and the Chinese Communist Party and to preserve the Mongolian language, culture and nationality.
    • He agreed with the intentions of the [group] and worked with them in secret. Although their activities were carried out in secret, five of them were arrested by the government. At that time, there was a ban on organised movements, groups, meetings and demonstrations. Government officials bound their eyes, handcuffed and put them into different prisons. The prison conditions were very difficult. His cell was full of water, cold and dark at night. He was rarely let out of his cell to see the sun and smell the wind. He was given half a cup of rice with water once a day.
    • After seven days, his eyes were bound again and he was moved to a different prison. When gaol officers interrogated him, he was asked to sit on a high chair for extended periods and was whipped with a wooden whip, stabbed with a spear, hit by hard things such as chairs and burnt by cigarette flames. Because he could not speak the Chinese language, he was hit more. As a result of these beatings, he was left with scars. His health deteriorated day by day. In order to be released, he lied and told them that he did not know anything about the group and had just passed on a letter to someone. In January 1989, he was released from prison after having been detained for two months. He was made to promise that he would not participate in any anti-government or any anti-Chinese Communist Party activities.
    • When he returned home he stayed at home to improve his health. He found out that when he was in gaol, Chinese government officials had gone to his home and taken away his documents. After a while, he heard news about the men who were arrested with him. One of them died in a car accident. Three of them were still in prison and some of their organs were taken away for foreigners.
    • The Chinese government secret agency officials followed him everywhere he went and were ready to arrest him at any time he made a mistake. As he did not wish to be tortured, murdered or have his organs removed, he decided to follow his mother’s advice, and go to Outer Mongolia in secret and illegally. He travelled to Outer Mongolia by horse and crossed into Outer Mongolia unlawfully at the end of March 1989. While living in Mongolia illegally, he tried not to come to the notice of Mongolian government officials. There is an agreement between Mongolia and China in relation to the unlawful crossing of the border. If the Mongolian authorities caught him, he would have been detained and deported to China where he would have been imprisoned.
    • Even though he was able to leave more freely after the democratic movement, he felt that Mongolians hated and discriminated against Chinese people. From August 1993 to November 2006, he worked as a [driver]. Whilst riding his [vehicle], he met [the] director of [a finance company]. In order to increase his savings, he deposited the sum of 13,000,000 tugrog for six months. At the end of the six months he was not able to get his money back and was instead offered a [house]. He took the offer and moved into the house. The company was subsequently found to have committed many breaches, the general director was arrested and the company’s business activities were stopped.
    • [In] October 2006, several Police officers went to his home early one morning, arrested him and him into gaol. He had no documents to prove that he had purchased the house with his own money. They also suspected him of corruption in relation to [the finance company]. The Mongolian Police and secret agency offices did not allow him to have a lawyer because he was Stateless and lived in Mongolia unlawfully. They investigated him and mistreated him. He was pushed from chairs to the floor and kicked. As a result he broke his nose and was taken to hospital for surgery. He escaped from the hospital and hid at a friend’s house for a year.
    • He travelled to Australia using someone else’s passport. If he had not come to Australia he would been arrested and sent to a Chinese gaol where his life would have ended. He left with the intention not to return.
    • The Chinese government authorities will not protect him if he returns to China because he was a member of a group which was opposed to the Chinese government’s policies. As soon as the Chinese government becomes aware that he has returned to China, government officials will detain him. He will be considered to be a rebel against the government, to have betrayed his country and to have committed treason.

Tribunal hearing on 1 August 2008 in relation to the first application for a Protection visa

15. The evidence given by the applicant during the Tribunal hearing on 1 August 2008 is summarised as follows:
    • He wrote the statement lodged in support of his application for a Protection visa himself in Mongolian and it was translated into English by a Mongolian student. Everything in his visa application and statement are true, as far as he is aware, and he did not wish to make any changes to those documents.
    • He established a group called [name deleted] with four of his friends. The purpose of the group was to maintain Mongol traditions, land and autonomy from Chinese control. The group was engaged in propaganda and encouraged people to speak out. They explained the situation to people and encouraged them to take action to regain leadership. His role was to recruit people to the group. He did this through posters, flyers and having meetings.
    • Despite carrying out their activities in secret, the members of the group were detected and arrested. He was held in a small room and given little to eat. Because he could not speak Chinese, he was insulted and burned with cigarettes. He was moved to another location for some time and prevented from sleeping. His health declined and he lost weight. He experienced various forms of torture. He was questioned but claimed that he knew nothing and had been simply asked to pass an envelope to someone. He was released after two months. He was the only member of the group who was released. One of them had died accidently and he had not heard from the other members.
    • After his release, he returned home to recover his health and found out that the police had searched his house and removed many papers. He felt better after a month and ventured out. He realised he was being followed. He decided to leave Inner Mongolia and he crossed over the border into Outer Mongolia on horseback.
    • When asked what he feared would happen if he returned to China, he responded that he could not stand the situation in Inner Mongolia where the Mongol people had lost everything to the Chinese. They hardly retained any land or cattle. If he returned to China, he knew he would do something and this would lead to him being caught because he was being followed everywhere he went. He would not come out of gaol alive. He did not fear harm in China for any other reason.
    • He was born in Inner Mongolia. He had no documents to prove his identity because they were taken by the Police when he was in gaol. He did not have any close relatives left in Inner Mongolia and had had no contact with his family since leaving. He was not married.
    • He travelled to Australia using another person’s passport. He paid some money to a friend to obtain a passport. He asked his friend to get the passport for him as he was living in hiding in Mongolia in a place far from the city and could not venture out. His friend also organised the Australian visa for him. He did not have the passport with which he entered Australia and had obtained it on the condition that he would return it to Mongolia after his arrival in Australia. His passport was taken to Mongolia by a Mongolian student. This was the student who helped him with his application for a Protection visa.
    • He did not think [the group] was still operating in Mongolia and had not heard anything since he left. He still kept track of what was happening in Inner Mongolia. Things are getting worse and the Chinese are maintaining very tight control. He has no hope that things will improve. There are activist groups in Japan and America and he has looked at their websites. He met someone through a website for Mongolian activists. He has never spoken publicly about the situation in Inner Mongolia. He has not joined any groups in Australia working to liberate Inner Mongolia.
    • He did not think he could live if he returned to Inner Mongolia. He has kept silent over the last 20 years because he was illegal and living in hiding.

Second application for a Protection visa lodged [in] October 2013

16. The applicant’s claims in his second application for a Protection visa lodged with the Department [in] October 2013 are summarised as follows:
    • His name is [Mr A] and he is a citizen of Mongolia. He was born in Ulaanbaatar in Mongolia on [date]. He has [children] who are also Mongolian citizens.
    • He met a dangerous group of criminals in February 2001. Until then he had his own business in Mongolia. He imported [products] from [other countries] and sold them. After he met the group of criminals, his life turned upside down and he lost his business and his family.
    • The group of criminals demanded money from him repeatedly. They borrowed his [products] and money [and] did not return his money. He was subjected to beatings and threats for six months, was terrified and was living in fear. They threatened him that if he did not follow them they would “play” with his family. That is why he decided to separate from his family to save them. He escaped from Mongolia as he had no other option.
    • He left Mongolia in January 2002 and lived in [Country 1] from March 2002 to November 2006. He applied for refugee status in [Country 1] in March 2002 and his application was refused. He returned to Mongolia in November 2006. He started a new life and got a new job. He was employed as [occupation] at [a company] in Ulaanbaatar in Mongolia from January 2007 to December 2007.
    • After six years, he met the same group of criminals in the Mongolian taxation office. They contacted him constantly. Sometimes they “demanded me to the face contract under my company name which I was working.” When he refused, he was taken to the outskirts of the city where he was punched, beaten, had his nose broken and was threatened that he would be killed. He had an operation on his nose and was in hiding until he got his visa.
    • He fears harm from a group of dangerous criminals, who are well organised and powerful people, if he returns to Mongolia. They have power over the police, in Parliament and over many Mongolian authorities. The police are corrupt and would not act against well-organised groups of criminals who have power and control everywhere. They are powerful and rich. Journalists do not write about these groups of criminals in the newspaper because it is too dangerous for them.
    • He would have to stay in hiding or he will be killed in Mongolia. He has escaped from them twice and they would try to take revenge on him for not complying with their demands.
17. The applicant did not attend an interview with the delegate. His second application for a Protection visa was refused [in] April 2014.
18. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated [in] April 2014. He has also provided the Tribunal with a letter from his treating [doctor] of [a named medical practice] dated [in] April 2015. It indicates that he was successfully treated for a [medical condition] in July 2010 [details deleted]. [Details deleted]. He also provided the Tribunal with an undated ‘Review GP Management Plan Team Care Arrangement’ in the name of [Mr A].

Findings

Applicant's identity and nationality

19. The records of the Department indicate that the applicant entered Australia [in] January 2008 on a Mongolian passport in the name of [Mr A].
20. In his first application for a Protection visa filed [in] February 2008, the applicant claimed that his real name was [Mr B] and that he is a citizen of China. He claimed that he came to Australia [in] January 2008 under a false name using a false passport. In his second application for a Protection visa filed [in] October 2013, he stated that his real name is [Mr A] and that he is a citizen of Mongolia.
21. During the hearing on 20 October 2015, he gave evidence that all the information contained in his first application for a Protection visa, including his name and nationality, is false. He stated that his name is [Mr A] and that he is a citizen of Mongolia.
22. On the evidence before it, the Tribunal finds that the person [Mr B] and the person [Mr A] are one and the same person. The Tribunal finds that the applicant assumed the false name of [Mr B] and false Chinese nationality for the purpose of his first application for a Protection visa lodged [in] February 2008.
23. The Tribunal accepts that the applicant’s name is [Mr A] and that he is a citizen of Mongolia for the purpose of this application. The Tribunal will access his claims against Mongolia.
24. The Tribunal finds that the applicant is a citizen of Mongolia and that he is outside his country of nationality. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than his country of nationality.

Refugees Convention

25. Pursuant to the decision of the Full Court of the Federal Court in SZGIZ, an applicant who had previously applied for and been refused a Protection visa on the basis of one of the criteria was enabled to make a further application for a Protection visa on the basis of one of the other criteria. Thus an applicant who had previously been refused a Protection visa on the basis of the Refugees Convention (s.36(2)(a) of the Act) was able to apply for a Protection visa on the basis of complementary protection (s.36(2)(aa) of the Act).
26. The applicant was previously refused a Protection visa [in] May 2008 on the basis of the Refugees Convention. [In] October 2013, the applicant lodged a second application for a Protection visa. Applying the reasoning in SZGIZ, the Tribunal finds that it does not have the power to consider the applicant's claims under the Refugee Convention criterion in s.36(2)(a) of the Act and has proceeded on the basis that it can only consider his claims under the complementary protection provisions in s.36(2)(aa) of the Act.

Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

27. The applicant gave evidence to the Tribunal on 20 October 2015 in relation to his claims. He stated that his claims in his first application for a Protection visa lodged [in] February 2008 were fabricated. He stated that he did not wish to proceed with any of the claims made in his first application for a Protection visa.
28. The applicant stated that he prepared the second application for a Protection visa lodged [in] October 2013 himself and that he did not get any help as he did not need it. He stated that the information in his second application for a Protection visa is accurate and that he did not wish to make any changes to his visa application.
29. The Tribunal found the applicant’s evidence to be contradictory, implausible and unconvincing. The Tribunal formed the view that he was fabricating some of his evidence as he was giving it. The Tribunal has serious concerns in relation to his credibility and the veracity of his claims for the reasons that follow.
30. In his second application for a Protection visa lodged [in] October 2013, the applicant disclosed for the first time that he had lived in [Country 1] from March 2002 to November 2006. During the hearing on 20 October 2015, he gave evidence that he entered [Country 1] unlawfully and then applied for protection in [Country 1]. He stated that he did not know about applying for refugee status at that time and spoke to an interpreter who advised him to claim protection. He stated that he did not wish to disclose the truth about himself as Mongolia is a small country and he was worried about things. He stated that he told the interpreter that he did not wish to tell the truth about himself and the interpreter helped him to create a story. He stated that he agreed to do that because he escaped from his country, was at risk from a group of criminals and did not want it known that he was in [Country 1].
31. The applicant gave evidence that his application was refused after two years and that he thereafter remained in [Country 1] unlawfully. He stated that he subsequently decided to return voluntarily to Mongolia in 2006. He stated that he hoped things had changed in Mongolia.
32. The applicant’s willingness to provide false information about himself and fabricate claims for protection in his application for refugee status [in Country 1] in 2002 raises concerns for the Tribunal in relation to his credibility and the veracity of his claims in his current application for a Protection visa lodged [in] October 2013.
33. The Tribunal asked the applicant about his first application for a Protection visa lodged [in] February 2008. He responded that he wrote out his statement of claims in Mongolian and gave it to a Mongolian interpreter who translated it into English. He stated that these claims were not true. He stated that he could not remember whether he or the interpreter filled out the application form (Form C). When asked why he assumed a false identity and nationality and fabricated the claims, he responded that his father was a well-known person and held responsible jobs. He stated that his father used to be the head of a Department and [an official]. He stated that he did not want to reveal his true identity because Mongolia is a small country and his father is well known.
34. When the Tribunal pointed out that he had previously made an application for a Protection visa in [Country 1] and should have been aware of the confidential nature of his application, the applicant responded that he was not aware of that. He stated that when he was in [Country 1] he did not know what to do or what was happening and was in a bad mental state. The Tribunal referred to his earlier evidence that when he first arrived in Australia he obtained immigration advice from [an agent] and noted that he could have discussed his concerns about confidentiality at that time.
35. The applicant responded that [the agent] did not fill out his first application for a Protection visa. He stated that when he first arrived in Australia he inquired about how he could lodge an application for a Protection visa and was referred to an interpreter who helped him. He stated that he was advised to make an appointment with [the agent]. He stated that he did so, gave them his completed application and they forwarded it to the Department. He stated that he did not obtain any immigration advice from [the agent].
36. The Tribunal does not accept this evidence. Firstly, the applicant’s evidence that he did not obtain any immigration advice from [the agent] when he first arrived in Australia contradicts his earlier evidence that he did so. Secondly, the Tribunal would expect that, if the applicant had concerns about disclosing personal information and confidentiality, he would have discussed these issues and obtained advice about it when he attended the appointment with [the agent]. Thirdly, the Tribunal would expect that, having previously unsuccessfully applied for refugee status in [Country 1], the applicant would understand the importance of his application for a Protection visa, the need to understand the process and obtain legal advice. Fourthly, the reasons given by the applicant for not disclosing his identity do not explain why he needed to fabricate his claims.
37. The applicant’s willingness to provide a false identity and nationality and fabricate claims for protection in his first application for a Protection visa lodged [in] February 2008 raises concerns for the Tribunal in relation to his credibility and the veracity of his claims in his current application for a Protection visa lodged [in] October 2013.
38. The applicant applied for a Visitor visa [in] December 2007 to travel to Australia. In that application he stated that he was married and has [children]. He stated that he worked at [a company] in Mongolia for 7 years and 2 months and that this company was providing him with support for his visit to Australia. He provided a number of supporting documents including a Labour Contract between him and [the company] dated March 2000. Another supporting document was a work reference from the General Director of this company stating that he was employed at this company as [occupation] from 2000 to 2005 and as their representative in Ulaanbaatar since then.
39. This information is not consistent with information he subsequently provided the Department. In his first application for a Protection visa, he claimed that he was employed as a [driver] from August 1993 to November 2006. In his second application for a Protection visa, he claimed that he lived in [Country 1] from March 2002 to October 2006 and worked as [occupation] at [a company] in Mongolia from January 2007 to December 2007. He made no mention in any of his visa applications that he worked as [another occupation] in Mongolia. This raises serious concerns about his credibility and the veracity of his current claims.
40. When this information was put to the applicant, pursuant to s.424AA of the Act, he responded that there is nothing contradictory about this information. He stated that everything he said in his first application for a Protection visa is false. He stated that a woman in Mongolia assisted him with his application for a Visitor visa. He stated that when he told her that he had only been working in his current job for a few months she told him that his prospects of getting the Visitor visa were better if he had worked in his job for longer and was able to show stability. He stated that he just changed the dates in his application to show that he had worked there for a longer period.
41. When the Tribunal pointed out that the Labour Contract and the work reference that he provided in support of his Visitor visa application also contained false information, the applicant responded that when he obtained the work reference he asked for the dates to be changed to increase his prospects of getting the Visitor visa. He stated that the Labour Contract is correct but the dates are incorrect. He stated that all the information is correct. He stated that in his second application for a Protection visa he disclosed that he had a [business].
42. The Tribunal does not accept that all the information that the applicant provided in his application for a Visitor visa and the supporting documents he provided are correct. Based on the applicant’s own evidence, the Tribunal finds that he provided false information and bogus documents in his application for a Visitor visa.
43. The Tribunal referred the applicant to his second application for a Protection visa (Part C), question 41 which required the applicant to provide details of all his past employment. The Tribunal noted that he did not provide details of his employment as [another occupation] in his second application for a Protection visa as claimed and that the only employment he disclosed in question 41 was his employment at [a company] as [occupation] from January 2007 to December 2007. He responded that because it is a new application he thought that he only needed to provide details of his employment after he returned to Mongolia from [Country 1]. He then stated that he did not think he needed to disclose his [business] because it was his own business and he was not employed by someone else. He stated that in Mongolia if you have your own business it is not part of your employment history.
44. The Tribunal does not accept this explanation. Firstly, the applicant’s initial evidence that he disclosed in his second application for a Protection visa that he had a [business] contradicts his subsequent evidence that he did not think it was necessary to disclose this information because he was self-employed. Secondly, it makes no sense and is implausible that the applicant thought he was only required to disclose his employment after he returned to Mongolia from [Country 1] when the question required him to provide details of all his past employment. The applicant’s failure to mention his [business] in response of question 41 of his application for a Protection visa raises concerns in relation to the credibility of his claims in relation to this business.
45. The Tribunal raised with the applicant its concerns in relation to his willingness to provide the Department with false information in relation to his application for a Visitor visa and his first application for a Protection visa in order to obtain those visas. The Tribunal raised with him its concerns that he may be doing the same thing in relation to his second application for a Protection visa. He responded that the woman who assisted him with his application for a Visitor visa advised him to increase the period of his employment and he did so and he provided bogus documents for the purpose of getting the visa. He questioned how else he could get the visa. He stated that he is an honest man.
46. When his first application for a Protection visa lodged [in] February 2008 was unsuccessful, the applicant lodged his first application for Ministerial intervention under s.417 of the Act [in] October 2008. He provided the Department with a supporting Statutory Declaration dated 1 May 2009. In that Statutory Declaration he stated that he never knew his father and did not know whether he was alive or dead. He stated that his mother had passed away. He stated that he was an only child. He stated that he had never married and had no children. During the course of his evidence to the Tribunal on 20 October 2015, he stated that his parents currently live in Ulaanbaatar, that he has [siblings] who also currently live in Ulaanbaatar and that he has [children]. He stated that he was married and separated from his wife. He stated that after he came to Australia his wife contacted him and informed him that she wished to divorce him and he agreed. He stated that he is not sure if he is divorced.
47. When the Tribunal put this information to the applicant, pursuant to s.424AA of the Act, he responded that he thought that the information he gave the Minister had to be based on his first application for a Protection visa. The Tribunal noted his earlier evidence that his second application for a Protection visa lodged [in] October 2013 was true and correct and yet he did not disclose that he had any close relatives living outside Australia in response to question 13 in Form B. He responded that he probably thought that the question was about relatives living in Australia. When the Tribunal noted that the previous question (question 12) asked about close relatives living in Australia and question 13 asked about close relatives living outside Australia, he responded that his lack of English made him misunderstand the question. The Tribunal does not accept this explanation. Firstly, throughout the hearing on 20 October 2015 the applicant chose to answer many of the questions in English despite having the assistance of a Mongolian interpreter and did so in fluent English for the most part. He also gave evidence that he did not seek assistance when completing his second application for a Protection visa lodged [in] October 2013 because he did not need to.
48. The applicant’s willingness to provide false information in relation to his family to the Minister of Immigration and Citizenship (as he was then called) in his first application for Ministerial intervention raises concerns for the Tribunal in relation to his credibility and the veracity of his claims in his current application for a Protection visa lodged [in] October 2013.
49. The applicant was interviewed by the Department [in] September 2010. During that interview he maintained that his name was [Mr B] and that he did not use any other name. He was interviewed by the Department again [in] June 2013 in relation to his identity. He was informed that the Mongolian authorities had confirmed with the Department that he is a Mongolian citizen and his real name is [Mr A] .He continued to deny that this is his name and insisted that his name is [Mr B]. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, noted that he had not been forthcoming with the Department, its concerns in relation to whether he was being honest with the Tribunal and its concerns in relation to the credibility of his current claims.
50. The applicant responded that this information was all true. He stated that he provided false information in his first application for a Protection visa filed [in] February 2008 and stuck to this story during his subsequent interviews with the Department. He stated that when he was in the detention centre officers from the Department told him that they could identify him. He stated that he subsequently decided to tell the truth and admit his true identity. He apologised for telling lies and stated that he is speaking the truth in his second application for a Protection visa. He stated that he understood the Tribunal’s concerns about his credibility. He stated that he grew up in an educated and respected family and is an honest person. He stated that he did not tell any lies in his life. He stated that he only lied here to get a visa and his situation required him to do so. When the Tribunal reminded him of his earlier evidence that he did not tell the truth in his application for refugee status in [Country 1] either, he responded that he was forced to do these things to survive. He apologised for it.
51. Towards the end of the hearing on 20 October 2015, the applicant stated that he has many things on his mind, is mentally stressed and cannot remember things. He stated that he is under “mental treatment”. When asked about this treatment, he stated that he used to attend counselling in 2004. He then stated that he still goes to counselling. He stated that it has been a long time and it is difficult to remember things. The applicant has not provided the Tribunal with any current evidence in relation to his mental state or him undergoing counselling. He has provided the Tribunal with an undated document titled “Review GP Management Plan Team Care Arrangement” from [a named medical practice] in the name of [Mr B]. This document sets out the details of his care providers and makes no reference to him attending on a counsellor, psychologist or psychiatrist. It refers to him having a problem with depression, being tasked to take medication as prescribed, maintain good physical health to improve psychological health and the avoidance of alcohol and non-prescribed medication to prevent depression and control significant alterations in mood.
52. The Tribunal had the opportunity to observe the applicant throughout the hearing. He was articulate, composed and alert throughout the hearing. His answers were responsive to the questions asked. He was able to participate effectively throughout the hearing. The Tribunal is satisfied that he was not prevented by any physical or mental problem from giving evidence and presenting arguments relating to the issues in his case.
53. The Tribunal has a number of concerns in relation to the credibility of the claims made by the applicant in his current application for a Protection visa lodged [in] October 2013 for the following reasons. Firstly, as referred to above, he did not disclose that he was employed as [another occupation] in response to question 41 (details of his past employment) in his visa application. Secondly, in his visa application, he claimed that he imported [products] from [other countries] which he sold in Mongolia. However, during the hearing on 20 October 2008, he gave evidence that he imported [products] from [a different country] and sold them in Mongolia. Thirdly, in his visa application, he claimed that a dangerous group of criminals beat him, terrified him and threatened his family for a period of six months. During the hearing on 20 October 2015, he was asked a number of questions in relation to his interactions with the group of criminals. He gave evidence that they demanded money from him, damaged his [products], borrowed his [products] and returned them with [damage], occasionally borrowed his [products] and did not bring them back and threatened him. He made no mention of being beaten by the criminals as claimed in his visa application. He claimed that he was harassed by these criminals for about twelve months. However, in his visa application he claimed that he was harassed by them for six months.
54. Fourthly, despite his claims that this dangerous and powerful group of criminals threatened him, his life was in danger, he lived in fear and they would take revenge on him if he returns to Mongolia, the applicant voluntarily returned to Mongolia and lived in Ulaanbaatar, the same city he had lived in previously. Fifthly, in his visa application he claimed that when he returned to Mongolia in 2006 he met this same group of criminals in the Mongolian taxation office. However, he gave evidence at the hearing on 20 October 2013 that when he visited the taxation office he ran into an acquaintance by the name of [Mr C] and they re-established their relationship. His evidence was that [Mr C] asked him to use his employer’s resources to fabricate a fraudulent contract and he refused to do so.
55. Sixthly, in his visa application the applicant claimed that when he refused the demands of the group of criminals they took him to the outskirts of the city, punched him, beat him, broke his nose and threatened to kill him. However, during the hearing on 20 October 2013, he gave evidence that they did not do these things to him but it could have happened to him because this group of criminals do anything for money. For the above reasons, the Tribunal has concerns in relation to the applicant’s credibility and the veracity of the claims made in his second application for a Protection visa filed [in] October 2013.
56. Towards the end of the hearing, the Tribunal asked the applicant what he thought would happen to him if he returned to Mongolia. He responded that he would see the group of criminals again. He stated that he was against them and used to fight with them. He stated that at his age it would be difficult for him to find employment in the government and he would have to set up his own business. He stated that the same problems would happen again. He stated that he threatened to shoot them and kill them. He initially stated that he purchased a gun and then stated that he purchased two guns. When the Tribunal noted that this occurred in 2001 and it was now 2015, he agreed that it happened a long time ago. He stated that they are still there and if he returns he will meet them again. This is inconsistent with his earlier evidence to the Tribunal that he has had no contact with the gang of criminals and does not know whether they still exist.
57. The applicant’s claims that he purchased a gun, or alternatively two guns, and threatened the gang of criminals that he would shoot and kill them are new claims that he has not made previously. His failure to make these claims previously raises concerns in relation to the credibility of these claims. The Tribunal is also of the view that if the gang of criminals wished to take revenge on the applicant for making these threats, they would have done so when he returned to Mongolia in November 2006. He continued to live and work in Ulaanbaatar until he left for Australia in January 2008 without the gang of criminals taking revenge on him.

Findings

58. Having considered all the applicant’s claims and the evidence, the Tribunal is of the view that the applicant is not a witness of truth. The Tribunal is of the view that he fabricated his claims in his second application for a Protection visa filed [in] October 2013 and was manufacturing some of his evidence as he was giving it. The Tribunal is of the view that he was prepared to say anything to obtain a Protection visa without any regard for the truth. The Tribunal finds that the applicant is not a credible witness.
59. The Tribunal does not accept that the applicant owned a business selling [products] in Mongolia. It follows that the Tribunal does not accept that the applicant came into contact with a gang of criminals because of this business and does not accept any of his claims in relation to the gang of criminals that flows from this. The Tribunal does not accept that the applicant purchased a gun or, alternatively, two guns and threatened a gang of criminals that he would short and kill them. The Tribunal does not accept that the applicant left Mongolia in 2001 or 2002 to escape from a gang of criminals.
60. The Tribunal accepts that the applicant went to [Country 1] unlawfully in 2002 and lodged an application for refugee status in [Country 1]. The Tribunal accepts that this application was unsuccessful. The Tribunal accepts that the applicant thereafter remained in [Country 1] unlawfully for an extended period. The Tribunal accepts that the applicant voluntarily returned to Mongolia in November 2006 and lived and worked in Ulaanbaatar.
61. The Tribunal does not accept that, after the applicant returned to Mongolia, he was approached by [Mr C] or, alternatively, the gang of criminals and demands were made of him to commit unlawful acts. It follows that the Tribunal does not accept that [Mr C], or alternatively, the gang of criminals took the applicant to the outskirts of the city, punched him, beat him, broke his nose and threatened to kill him. The Tribunal does not accept that he was in hiding until he obtained his visa to come to Australia.
62. The Tribunal does not accept that [Mr C] and/or a gang of criminals will take revenge on the applicant if he returns to Mongolia. The Tribunal does not accept that the applicant is at risk of significant harm from [Mr C] and/or a gang of criminals if he returns to Mongolia now or in the reasonably foreseeable future.
63. The Tribunal accepts that the applicant’s parents, [siblings] and [children] live in Ulaanbaatar in Mongolia. The Tribunal accepts that the applicant maintains contact with his [sibling and one child]. The Tribunal accepts that it may be difficult for the applicant to obtain employment in the government at [his age]. However, the applicant has proved himself to be very resourceful. He has managed to live in [Country 1] and Australia for several years without any family support. His evidence is that he is able to read, write and speak Mongolian, English and Russian and this may enhance his prospects of obtaining employment. He has previously returned to Mongolia after several years absence and re-established himself and found employment.
64. In view of the Tribunal’s findings in relation to the applicant’s credibility and, for the reasons given above, the Tribunal rejects the entirety of the applicant’s material claims. The Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons put forward by him.
65. Having considered all of the applicant’s claims, individually and cumulatively, the Tribunal is not satisfied, for the reasons given above, that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Mongolia now or in the reasonably foreseeable future.
66. Accordingly, the Tribunal is not satisfied that 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 as defined. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa).

CONCLUSION

67. The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa).
68. 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 s.36(2)(aa) and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

69. The Tribunal affirms the decision not to grant the applicant a Protection visa.

Linda Symons
Member