1419800 (Refugee)

[2016] AATA 3377

1419800 (Refugee) [2016] AATA 3377 (24 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419800

COUNTRY OF REFERENCE:                   Republic of Korea

MEMBER:Susan Pinto

DATE:24 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 24 February 2016 at 10:34am

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. The applicant is a citizen of the Republic of Korea. He is aged in his [age range]. He arrived in Australia as a dependent on his mother’s Student visa [in] April 2008. The applicant applied to the Department of Immigration for the Protection visa [in] February 2014.The applicant’s mother, who is aged in her [age range], and his sister who is in her [age range], are both residing in Australia. The applicant’s mother and sister made applications to the Department for Protection visas as dependents of the applicant. They did not seek review of the decisions to refuse to grant them Protection visas.

2. The delegate of the Minister for Immigration refused to grant the visa [in] November 2014. 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).

3. A summary of the relevant law is set out in an attachment to this decision. The issues in this review are whether the applicant has a well founded fear of persecution 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 him being removed from Australia to Korea, there is a real risk that he will suffer significant harm. If the Tribunal is not satisfied that the applicant has a well founded fear of persecution, the Tribunal must consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Korea that there is a real risk that he will suffer significant harm.

   CLAIMS AND EVIDENCE

   Application to the Department

4. The applicant indicated on the application form that he speaks reads and writes both English and Korean. In response to a question on the application form as to what he fears will happen if he returns to Korea, the applicant stated that he has a “military problem”. He stated that “it is a law to get into military for 2 years”. He also stated that his “mum’s sick and I have been living in Australia for 7 years. I have no family and friends there so I want to stay in Australia”.

5. In a submission accompanying the application, the applicant’s representative submitted that the applicant has been in Australia with his family for over 7 years. During this time he has “acclimatised to the relative safety and security of Australia, being far removed from the tensions of North East Asia and in particular those tensions aroused by a “bellicose North Korean regime”. It is further submitted that South Korea has a long and strictly instituted system of national service for young men upon reaching the requisite age of 18. The applicant is now past that age and there are fears for the stability of the Peninsula with an increasingly hostile and belligerent North Korean regime. The applicant feels that the threat of war is now “palpable with the pique” and there has been a frequency of “aggressive posturing by the North Korean dictatorship rising sharply in recent months”. Key points in time include the nullifying of the long standing Armistice with South Korea on 11 March 2013 and a declared state of war with South Korea on 30 March 2013.

6. It is further submitted that the reluctance of the applicant to return to South Korea to undertake military service obligations places him within membership of a particular social group of conscientious objectors. It is this membership that enlivens this claim for protection under Australia’s international humanitarian obligation.

7. The applicant was interviewed by the delegate [in] November 2014. The Tribunal has listened to the CD Rom recording of the interview. The applicant told the delegate that he his mother was involved in an accident in Australia and needs considerable care. The applicant does not want to undertake compulsory military service because his mother who has a permanent [specific] injury needs his care. The applicant’s mother has been given a compensation payment. The applicant’s father is deceased and he has responsibility for caring for his sister and mother. The applicant stated that if he returns to Korea he will have no friends or family members to assist him and his family. He will be unable to attend university because he will be unable to afford the associated costs.

8. The applicant was asked to provide medical documents in relation to his mother’s [specific] injury. However, no further documents were provided.

9. The delegate accepted that the applicant had a genuine concern for the wellbeing of his mother and sister and considers it his responsibility to care for them. The delegate also accepted that the applicant did not wish to undertake compulsory military service, but found that this is a law of general application and his reasons for not wishing to undertake military service did not indicate that he is a conscientious objector or has any political or religious objections to undertaking military service. The delegate was not satisfied that the applicant’s claims had any connection to the Refugees Convention. The delegate was also not satisfied that any harm the applicant feared or would face amounted to significant harm in accordance with the Complementary Protection provisions.

   Application for review

10. No further evidence was provided when the application was lodged with the Tribunal.

11. On 15 January 2016, the Tribunal wrote to applicant and invited him to appear before the Tribunal to give evidence and present arguments. The applicant responded to the hearing invitation indicating that he and his mother and sister would appear before the Tribunal on 23 February 2016. However, shortly before the hearing the Tribunal received notification from the representative that the applicant did not wish to appear before the Tribunal and wished for a decision to be made “on the papers”.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Is there a real chance of serious harm or a real risk of significant harm if the applicant returns to Korea?

12. As stated above, the Tribunal must consider whether the applicant has a well founded fear of persecution in the Republic of Korea for one or more of the five Convention reasons, and if not whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Korea that there is a real risk that he will suffer significant harm. In this matter, the applicant has essentially claimed that he does not wish to undertake military service in Korea because of his commitments to his family. He also will have no friends, family or support and his educational and employment opportunities will be reduced.

13. The Tribunal accepts that the Republic of Korea has compulsory military service and does not allow alternative service or conscientious objection.[1] The Tribunal accepts that the conditions of military service are generally difficult in all countries and requires conscripts to give up a number of rights and freedoms in performing the duty and that there is some threat from North Korea which may arise in the future. However, at this time there is no evidence indicating that there will be increased conflict between North and South Korean armed forces. Furthermore, had the applicant attended a hearing the Tribunal would have explained that it must be satisfied that the applicant faces a real chance of serious harm for a Convention reason or a real risk that he would suffer significant harm. In terms of the Refugees Convention, the Tribunal would have also explained that the laws relating to military service applies to all Koreans of a certain age and there is no information before the Tribunal to indicate they are being selectively enforced in any way or form.

    [1] United States Department of State, ‘2014 Report on International Religious Freedom – Republic of Korea’, 14 October 2015.

14. On the evidence before it, the Tribunal accepts that the applicant does not wish to undertake military service due to concerns for his mother and sister, but is not satisfied that the applicant is a genuine conscientious objector or he will be viewed as such, or that there is any evidence he holds views opposed to the army or government that form the basis for an objection to military service. The Tribunal is not satisfied on the evidence before it that the applicant will be a conscientious objector or that there is a real chance that the applicant will be persecuted for a Convention reason in relation to the requirement that he would undertakes military service. The Tribunal is, therefore, not satisfied that there is a real chance that the applicant would be subjected to serious or harm whilst undertaking military service. Nor is the Tribunal satisfied that there is a real risk that the applicant would suffer significant harm due to the requirement that he undertake military service. Nor is the Tribunal satisfied that any difficulties he may have in providing financial assistance and care for his mother and sister whilst undertaking military service constitutes serious or significant harm.

15. The Tribunal accepts on the evidence before it that the applicant does not wish to return to Korea and prefers to stay in Australia where he has lived for over 7 years. The Tribunal accepts that this is due to his concern for his mother and due to his fear that he will have reduced employment and educational opportunities. However, on the evidence before it the Tribunal is not satisfied that this falls within the Convention reasons or that he will suffer significant harm due to any reduced employment or educational opportunities or difficulties in readjusting to life in Korea after a substantial period of time in Australia.  

16. Accordingly, on the evidence before it, and having considered their claims individually and cumulatively, the Tribunal is not satisfied that there is a real chance that the applicant would suffer persecution for a Convention reason if he 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 that there is a real risk that he will suffer significant harm.

    CONCLUSIONS

17. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

18. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

19. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Susan Pinto
    Member

    
    

    ATTACHMENT - RELEVANT LAW

21. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

    ‘(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 under the Refugees Convention as amended by the Refugees Protocol; 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.

    Refugee criterion

22. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.

23. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a 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.’

24. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:

    (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.

    Complementary protection criterion

25. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

    Ministerial direction

26. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.