1417553 (Refugee)

[2016] AATA 3315

1417553 (Refugee) [2016] AATA 3315 (12 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417553

COUNTRY OF REFERENCE:                  Korea, Republic Of

MEMBER:Christian Carney

DATE:12 February 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 12 February 2016 at 10:26am

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

BACKGROUND

1. The applicants are [age] and [age] year old brothers who arrived in Australia [in] November 2004 with their parents, as the holders of dependent [temporary] visas with passports issued to them by the Republic of Korea (South Korea).  They were dependent applicants on a number of applications their parents made to stay in Australia, including a Protection visa application that was ultimately refused by the Refugee Review Tribunal (RRT) in March 2007.  They were both included as applicants in a judicial review application that was refused by the Federal Court in August 2008.  The applicants remained in the community without a visa from September 2008 to March 2014 when they lodged the current application.

2. They claim that they would be forced to undertake compulsory military service in Korea and that they would suffer harm through performing that service, and that they would suffer harm through the difficulties they would face from having lost familiarity with Korean culture and fluency in the Korean language.  They were both interviewed by a delegate of the Minister for Immigration in September 2014 who did not accept they were at risk of suffering harm and considered their claims that they ‘did not want to waste two years of their lives doing military service’ did not come within Australia’s protection obligations. 

3. The Tribunal must consider and decide whether they have a well-founded fear of being persecuted in Korea for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed from Australia to Korea, there is a real risk that they will suffer significant harm.  In considering these issues, the Tribunal has applied the law set out in Appendix 1. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence to the Department

4. According to the information in their Protection visa applications, the applicants were born in Seoul in [year] and [year].  They claimed they were ethnic Korean and Catholic and that they could only speak, read and write in English.  They claim that they only received education in Australia and did not provide details of having received any education in Korea.  They stated that their parents are both in Australia but they do not trust them so they have gone their own way.  They claimed they do not remember much about life in Korea and have forgotten about Korean culture and society and would not be able to fit in on return and would face considerable difficulties in adjusting to life in Korea.  They provided a copy of numerous documents evidencing their education and completion of Year 12 in Australia. 

5. They fear being forced to do the compulsory two years of military service if they return to Korea.  They have heard that soldiers in the Korean Army commit suicide or are beaten to death or die from other unnatural causes each year.  They also fear that, because of their poor language skills, they would not understand the orders they were given by superior soldiers and that would be punished and mistreated for not following orders.

   Interview with the delegate

6. They both attended an interview with the delegate in Sydney [in] September 2014.  The delegate’s decision record provides a summary of the evidence they gave at that interview. 

   Evidence to the Tribunal

7. The applicants gave the Tribunal a copy of the delegate’s decision with their application for review. 

8. In a pre-hearing submission dated 7 January 2016, the applicants’ migration agent summarised their background and claims and submitted their circumstances came within Australia’s protection obligations.  The submission refers to the concept of ‘wangtta’ or social discrimination and contended that, in light of their long absence and loss of language, the applicants would return as outsiders and would be ostracised and rejected by the community, and they would be bullied by their peers in society and in the army during their military service.  The letter attached a copy of an online report about ‘bullying in Korean schools and ‘wangtta’, and three online reports about suicide, bullying and mistreatment in the military including an incident when a solider shot and killed a number of his colleagues. 

9. They appeared before the Tribunal in Sydney on 21 January 2016 and gave evidence and arguments in support of their application.  Their migration agent attended the hearing with them. 

10. They each confirmed the details of their identity, nationality, arrival in Australia and their place of residence in South Korea.  Prior to coming to Australia in 2004 they lived with their parents in Seoul.  They both completed Year [level] in Australia.  They both claimed that their only remaining family in Korea was their grandmother.  They were not sure about cousins, however, their father has one [sibling] in Korea but they do not know anything about [him/her].  The first applicant completed school to Year [level] in Seoul.  The second applicant completed school to Year [level] or [level]; he said he could not remember exactly. 

11. When asked, the first applicant said he speaks to his parents in [Australia] in Korean and sometimes in English.  He said his Korean is not that good.  Since he finished school he has not done any work or further study.  He just sits at home and socialises with friends.  His parents give him money.  He also got money from his grandfather’s estate.  He had no knowledge until recently that he had lived in Australia for more than five years with no visa. 

12. When asked why he did not want to return to Korea, the first applicant said he has no friends there and would have no life.  He wants to stay here.  He has had no contact with anyone in Korea since he arrived in Australia. 

13. The second applicant said he finished Year [level] in [year].  He went to [college] for about six months but since then he has not done any work or study.  He stays at home and socialises with friends.  His parents give him money.  When asked why he did not want to return to Korea, the second applicant said he has been here too long and all his friends are in Australia.  He has no family in Korea apart from his elderly grandmother and there is nothing for him to do in Korea.  He wants to stay here.  When asked if there was any other reason he did not want to return to Korea, the second applicant said ‘I’m not sure.  No, not really’.  

14. When asked, both applicants subsequently confirmed that they would have to do two years of military service if they return to Korea and they would be bullied and ridiculed by other soldiers because they cannot speak Korean.  They said they would be ostracised and ridiculed by members of the community because they would be outsiders who did not understand the culture or language.  They both said they had given the Tribunal documents about this and they fear the things described in those documents.

15. The Tribunal noted that while it is reasonable to assume they had lost some of their fluency in Korean, it is also reasonable to assume that, having lived in Korea for the first 10 or so years of their lives and, having lived with their parents Korean in Australia and spoken to them in Korean for the past 11 years, it would not take them on return to regain fluency in the Korean language.  They both claimed that they could not speak it properly anymore.  The Tribunal noted that according to the delegate’s decision record they both told the delegate at the interview that they spoke in Korean with their parents at home.  The Tribunal noted that in their application forms they had both indicated they only speak English and not Korean.  When asked why they did not refer to Korean, they both said they are more fluent in English now.  The Tribunal put to them that it had some concerns about the reliability of their claims to have lost the ability to properly understand and speak Korean, and it put to them the evidence suggests they exaggerated this claim in order to try and strengthen their claims to protection.  They both said that they are not fluent anymore. 

16. The Tribunal discussed the reports they had given the Tribunal about ‘wangtta’ and bullying in the military.  They both claimed they would be bullied and mistreated and they were afraid it could lead them to commit suicide like has happened with other soldiers.  The Tribunal noted that it accepted that the conditions of military service are generally difficult in all countries and that they would have to give up a lot of their rights and freedoms in performing the duty.  It accepted that bullying and harassment occurred in the military in Korea, like it does in Australia, and that such mistreatment can and does lead to some people self-harming.  However, the Tribunal noted that it had to be satisfied that they faced a real chance of serious harm for a Refugee Convention reason or a real risk of significant harm.  In response, they said they would be mistreated because they would be outsiders now. 

17. When asked, both applicants were unable to describe or give any detailed knowledge about what they might have to do during the two years, and they both confirmed they had not done any research about the service or spoken with any person who had performed service.  The Tribunal noted that the laws relating to military service applied to all Koreans of a certain age and there was no information before the Tribunal to indicate they are being selectively enforced in anyway or form.  Neither applicant made any comment in response.  When asked if they had any objections to undertaking the service, they said they did not want to do it because it would be a waste of two years.   The Tribunal discussed with them the concept of conscientious objection to military service, but neither applicant made any comment in response, and confirmed that they did not want to waste their time doing it.  They both said they would not learn anything from doing it. 

18. The Tribunal noted that the armed forces of every country in the world required soldiers to follow orders and some form of punishment would occur if orders are not followed.  In response, they said they would be punished unfairly if they do not understand the commands they were given.  The first applicant said that he had watched a reality television show in which a white Australian man who married a Korean woman and goes to live in Korea and joins the military, and, because that man could not understand the language that well the other soldiers and officer ridiculed him.  They both said they did not want that to happen to them. 

19. Their agent submitted that it would be difficult for them to return and they would suffer harm for being outsiders.  It was possible they would be bullied and mistreated in the military. 

20. Following the hearing, by letter dated 2 February 2016, the applicants submitted a co-signed letter in which they state that they came to apply for protection after they were told they had no visas.  They want to stay here as they have become Australian over time.  Their father was in the army a long time ago, and the stories he told them about what happened in the army always frightened them.  Their mother sent them to a school in Seoul that was run by a teacher from [country] and they came to Australia on her recommendation.  They began to learn English before they came here.  Life would be very difficult for them in Korea now.  Their mother’s [sibling] is an Australian citizen and [scammed] their mother out of money and this broke their grandfather’s heart.  They fear Korean people and life in Korea. 

    FINDINGS AND REASONS

    Assessment of the applicants’ claims and evidence about past events

21. The Tribunal’s first task in determining whether the applicants are owed protection is to make findings of facts on relevant matters.  The task of fact-finding often involves an assessment of an applicant’s credibility.  In this context, as set out in Appendix 1, the courts have made it clear that the Tribunal must be sensitive to the potential difficulties faced by asylum seekers in putting forward their claims, and that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility and afford the benefit of the doubt to asylum seekers who are generally credible but unable to substantiate all of their claims.  However, the Tribunal is not required to accept uncritically any and all claims made by an applicant. 

    Nationality and general background

22. The applicants have consistently maintained that they are citizens of South Korea.  They submitted a copy of the details page of the passports they were issued in Australia in 2010 by the South Korean Consulate in [Australia], and, in the absence of any evidence to the contrary, the Tribunal accepts they are both nationals of South Korea and has assessed their claims against South Korea. 

23. On the basis of their consistent evidence the Tribunal accepts they were born in Seoul on [date] (applicant one) and [date] (applicant two) and that they entered Australia with their parents [in] November 2004 as the holders of dependent subclass [temporary] visas, and have remained in Australia since that time. 

    Claims to fear harm in South Korea

24. The applicants have both made the same claims to be owed protection and have given essentially the same evidence in support of those claims.  In summary, they claim to fear harm in Korea because they have lost the ability to speak fluently and understand the Korean language and that, because of their long absence, they would be outsiders in Korea and would be ostracised, ridiculed, harassed and bullied.  They also claimed they would have to do two years of military service, which they do not want to do, and that because of their language problems, they would not be able to properly understand orders and they would be punished and mistreated by their superiors and that, because of their language issues and unfamiliarity with Korean society and culture, they would be ostracised, ridiculed, harassed and bullied by other soldiers, and would be at risk of self-harming. 

25. On the evidence before it, the Tribunal does not accept that the applicants have lost the ability to speak or understand Korean, as they initially suggested at the hearing and to the delegate at the interview, and as they implied in their application forms by not declaring they could read, write or speak in Korean.  As put to them at the hearing, the Tribunal considers they exaggerated this claim in order to try and strengthen their claims to protection.  Indeed, as discussed with them, their evidence indicates and the Tribunal accepts that prior to their entry to Australia they had lived their entire life in Korea and, as [age] and [age] year old children, it is reasonable to assume they would have been fluent in the Korean language at the time of their arrival in Australia in 2004.  Moreover, since that time, they have lived with their parents and conversed with their parents in Korean.  The Tribunal does not accept that they only speak or sometimes speak English with their parents at home as claimed.  While it accepts that they have both become fluent in English through their years of education in Australia, the evidence before the Tribunal does not indicate that their parents received education in Australia, and in the Tribunal’s view, it is more likely than not that they have only ever communicated with their parents in Korean. 

26. While the Tribunal is prepared to accept that both applicants have lost their familiarity with contemporary Korean culture and that, at least initially, they would feel and be viewed as outsiders on return to Seoul, and would face a number of difficulties in reintegrating into Korean society, on the evidence and information before it, the Tribunal does not accept that, in their circumstances as [age] and [age] year old men, there is real chance that either applicant would suffer serious harm, or a real risk that either applicant would suffer significant harm, for reasons of their long absence from Korea and their unfamiliarity with contemporary Korean culture and society.  On the evidence before it, the Tribunal does not accept that there is a real chance they would be ostracised, ridiculed, harassed and bullied because of any language difficulties they might initially experience or because they would appear to be outsiders and foreigners, or that they would suffer ‘wangtta’, as claimed. 

27. With regard to military service, on the evidence before it, the Tribunal accepts that both applicants, as Korean citizens born in [year] and [year], would be subject to the obligation to perform military service and that, on return, they would both have to perform that service in the reasonably foreseeable future.  Apart from their claim they did not want to ‘waste their time’ in doing the service, neither applicant put forward any credible objection to having to do the service and neither of them said that they would not do the service.  While the Tribunal accepts that they do not wish to undertake military service and are fearful of going into the army, having carefully considered their claims and the evidence as a whole, the Tribunal does not accept that either applicant is a genuine conscientious objector or that they hold political views opposed to the army or government that do or would genuinely form the basis for an objection to military service, and it does not accept there is a real chance or a real risk that they would be subjected to serious or significant harm for any of those reasons if they served in the military. 

28. As noted above, on the evidence before it, the Tribunal considers that their real objections to military service are their loss of freedom by having to serve in the army for two years and the associated harsh and strict conditions of the service.  While the Tribunal accepts that the conditions of military service in Korea are difficult and harsh and that having to serve in the armed forces would involve a loss of freedom and, in many ways, humiliation and arbitrary treatment from superior officers, nevertheless, on the evidence and information before it, in all the circumstances, the Tribunal does not accept that they would suffer serious harm for those reasons or in that way, and it does not consider there are substantial grounds for believing there is a real risk they will suffer significant harm, as defined, as a result of or because of their military service in the event they return to Korea and perform the service.   

29. In making these findings the Tribunal has also considered their claim about the arbitrary nature and policies of the army and the arbitrary punishments inflicted on those who disobey orders, and that they are likely to be punished for not understanding orders; however, for the reasons noted above, the Tribunal does not accept that they have lost their fluency in the Korean language and it does not accept that they would be unable to understand or follow orders.  It has also taken into account their vague evidence about their father’s experiences in the army.  However, in the Tribunal’s view, the applicants have not provided any credible independent information to support those claims, and having carefully considered the evidence and information before it, the Tribunal does not accept they would suffer serious harm and does not consider there are substantial grounds for believing there is a real risk they will suffer significant harm through the arbitrary application of a policy or rule of the army or through being punished in an arbitrary manner for not following orders during their service, as claimed. 

1. Moreover, with regard to their claims that they would be ostracised, ridiculed, harassed and bullied in the army because of their language difficulties and because they would appear to outsiders and foreigners, or that they would suffer ‘wangtta’, for the reasons noted above, the Tribunal does not accept that, in their circumstances as [age] and [age] year old men, there is real chance that either applicant would suffer serious harm, or a real risk that either applicant would suffer significant harm, for reasons of their long absence from Korea and their unfamiliarity with contemporary Korean culture and society, from or by or on behalf of the other soldiers serving in the military.  In considering this issue it had taken into account the ‘reality TC show’ they referred to and the circumstances of the ‘white man’ who joins the Korean army and is ridiculed by his peers and superiors because he could not understand the language and orders he was given and was an outsider; however, it does not accept that evidence supports their claims that they would be at real chance or real risk of suffering serious or significant harm in those circumstances.  On the evidence before it, the Tribunal does not accept that there is a real chance they would be ostracised, ridiculed, harassed and bullied in the army because of any language difficulties they might initially experience or because they would appear to be outsiders and foreigners, or that they would suffer ‘wangtta’, as claimed. 

2. On the basis of their evidence at the recent hearing, the Tribunal accepts that that they have no assets in South Korea or in Australia, and that, if they return to South Korea after an absence of more than 10 years, they would be faced with a difficult situation and, initially, would most likely have difficulty in finding employment and a place of their own to live.  However, the evidence before the Tribunal indicates that their grandmother lives in Seoul, and, in the event it became necessary, the Tribunal considers they would be able to access assistance and support from their extended family in Korea.  As discussed with them at the hearing, while it appreciates their loss of connection to South Korean culture and society, and that they both feel a much closer and stronger connection to the Australian community, through their residence here for over 10 years, the evidence and information before the Tribunal does not indicate that there is a real chance they would suffer serious harm or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of their return to South Korea, there is a real risk that either of them will suffer significant harm. 

3. Accordingly, on the evidence before it, and having considered their claims individually and cumulatively, the Tribunal does not accept that there is a real chance the applicants would suffer persecution for a Convention reason if they return to Korea now or in the reasonably foreseeable future, or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed from Australia to Korea, there is a real risk that either of them will suffer significant harm.   

   CONCLUSIONS

4. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations and it finds that they do not satisfy the criterion set out in s.36(2)(a) or (aa).  There is no suggestion that either applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a Protection visa.  Accordingly, the applicants do not satisfy the criterion in s.36(2) for a Protection visa.

   DECISION

5. The Tribunal affirms the decision not to grant the applicants a Protection visa.

   Christian Carney
   Member

   APPENDIX 1 - RELEVANT LAW

6. Section 65(1) of the Act provides that a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.  The criteria for a Protection visa are set out in s.36 of the Act.  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 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), or on other ‘complementary protection’ grounds, or is a member of the same family unit as a person in respect of whom Australia has protection obligations under s.36(2) and that person holds a Protection visa of the same class.

7. 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.

   Refugee criterion

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

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

9. The High Court of Australia has considered this definition in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA (2000) 201 CLR 293, MIMA v Haji Ibrahim (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222 CLR 1, Applicant S v MIMA (2004) 217 CLR 387, Appellant S395/2002 v MIMA (2003) 216 CLR 473, SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51. Sections 91R and 91S of the Act qualify certain aspects of Article 1A(2) for the purposes of the application of the Act and Regulations to a particular person.

10. There are four key elements to the Convention definition.  Firstly, an applicant must be outside his or her country.  Secondly, the applicant must fear persecution, which, according to s.91R(1) of the Act, must involve ‘serious harm’ and ‘systematic and discriminatory conduct’.  The expression ‘serious harm’ includes, for example, a threat to life or liberty; significant physical harassment or ill-treatment; or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2).  The High Court has said that persecution may be directed against a person as an individual or as a member of a group.  The persecution must have an official quality, in the sense that it is official, or officially tolerated or condoned or be incapable of being controlled by the authorities of the country of nationality.  However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.  Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by their persecutors.

11. Thirdly, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition: race, religion, nationality, membership of a particular social group or political opinion.  The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution.  The persecution feared need not be solely attributable to a Convention reason.  However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a).

12. Fourthly, an applicant’s fear of persecution for a Convention reason must be ‘well-founded’.  This adds an objective requirement to the requirement that an applicant must in fact hold such a fear.  A person has a ‘well-founded fear’ of persecution under the Convention if they have a genuine fear founded on a ‘real chance’ of being persecuted for a Convention reason.  A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation.  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.

13. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence.  The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad.  Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

    Complementary protection criterion

14. 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’). 

15. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).  A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.  ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

16. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country.  These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B).

    Credibility

17. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.  In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions including Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997), Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.

18. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Foster J stated at 482 that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.” Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

19. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed at [25]:

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not.  An over-nice approach to the standard of proof to be applied here is undesirable.  It betrays a misunderstanding of the way administrative decisions are usually made.  It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination.  It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

20. The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  In Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997), the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”  Nevertheless, as Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

21. Indeed, as the Full Court noted in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs (unreported, 17 September 1998) “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”  On this point, the Tribunal also takes into account the comments of Professor Hathaway in The Law of Refugee Status" (1991, Butterworths) at pages 84-86.  Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case. However, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true: see MIMA v Rajalingam (1999) 93 FCR 220. The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [191]:

    … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.