1420802 (Refugee)

[2016] AATA 3880

1420802 (Refugee) [2016] AATA 3880 (30 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1420802

COUNTRY OF REFERENCE:                  Korea, Republic Of

MEMBER:Christian Carney

DATE:30 May 2016

PLACE OF DECISION:  Sydney

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

Statement made on 30 May 2016 at 5:38pm

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

BACKGROUND

1. The applicants are husband and wife and claim to be from the Republic of Korea (Korea).  They arrived in Australia in November 2004 and applied for a Protection visa in September 2006.  They claimed to fear being harmed in Korea for reasons of his past ‘socialist’ political activities.  That application was refused by a delegate of the Minister for Immigration [in] October 2006 and on review by a differently constituted Tribunal on 8 February 2007. 

2. Following the introduction of the ‘Complementary Protection’ criteria into the Migration Act in March 2012, and the subsequent decision of the Full Court of the Federal Court in SZGIZ v MIAC (2013) 212 FCR 235, the applicants were eligible to have their claims assessed against the Complementary Protection criterion, and, on that basis, they lodged a further application for a Protection visa [in] April 2014, which is the subject of the present review. Accordingly, the Tribunal must consider and decide whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to Korea, there is a real risk they will suffer significant harm. In considering these issues, the Tribunal has applied the law set out in Appendix 1.

   CLAIMS AND EVIDENCE

   Evidence to the Department

3. In their current application, only the first named applicant made specific claims to be owed protection.  He claimed that he came to Australia because he wanted a better life for his family.  He had worked as a [Occupation 1] from 1994 to November 2004.  A friend of his in Australia told him that he could help him get permanent residence here but that friend tricked him into selling his home in Korea and then took all of his money.  He fears that his children would suffer harm in Korea by having to perform military service.  His children were [ages] when they came here in 2004 and they have become Australian and would not fit into life back in Korea now.

4. He claimed that he had been arrested and detained by the police in Korea on several occasions for his participation in anti-government rallies with his colleagues who opposed the government’s treatment of human rights.  He claimed he was labelled a communist and that he had been unable to express his views about North Korea and re-unification.  He said that he was never physically mistreated by the authorities but he was ‘psychologically and mentally’ mistreated.  He fears being harmed on return for reasons of his past political activities. 

5. He was interviewed by the delegate in Sydney [in] November 2014.  The delegate’s decision record contains a summary of his oral evidence to the delegate, including that he told the delegate he had been arrested ‘several times’ and was detained by the police for attending anti-government rallies and that he had been regarded as a communist sympathiser.  He told the delegate that he was the [Occupation 2] of a transport company and also said that he was a high-level union official in a labourer’s union and had been an activist for the union.  When the delegate reminded him that, in his 2006 protection application, he made no reference to being arrested or detained in Korea, he said that he did not go to prison but was detained at the police station for his union activities.  When asked, he could not recall the details of when or where he was last arrested in Korea. 

6. The decision record indicates that, at the end of the interview, he told the delegate that he was not aware of the details of the applications he had made in Australia and said that he did what his [relative] told him to do, as his [relative] had promised him permanent residency in Australia.  When the delegate asked him what he thought would happen if he returned now, the applicant said that they could not live in Korea, as they had no money, no job, no family to support them and they would have financial difficulties. 

   Delegate’s decision dated [in] November 2014

7. According to the decision record, the delegate did not find the applicant to be a reliable witness and considered his claims to be vague and general and lacking in credibility, and did not accept that he had been a high-level union official or that he had been arrested or detained for his participation in a union. 

   Evidence to the Tribunal

8. The applicants gave the Tribunal a copy of the delegate’s decision.  They also provided a copy of three documents about his health and medical condition which state that he has had a [medical procedure] and suffers from [medical conditions]. 

   Hearing on 5 April 2016

9. The applicants appeared before the [Tribunal] on 5 April 2016 and gave evidence through an accredited Korean interpreter.  The second applicant confirmed that she had not made any claims to fear harm in Korea and that she relied on her husband’s evidence and claims. 

10. The first applicant confirmed the details of his identity, nationality, arrival in Australia, past application for a Protection visa, and their places of residence in South Korea and Australia.  He confirmed he has [medical conditions] but that his condition and symptoms would not affect his ability to participate in the hearing, however, he said he would need to stand up from to time.

11. He confirmed he finished school in Year [number] in about [year], after which he worked as a [Occupation 1].  His parents are deceased and his father-in-law is dead and his mother-in-law is in poor health.  He could not remember when he last had contact with anyone in Korea.  He has not had any regular contact with any person in Korea since he arrived in Australia. 

12. He has worked as a [occupation] in Australia but has not worked for a few years because of his illness.  He has been living off his savings from Korea and people from Seoul have helped him and his family by sending them money.  He sold everything before he came here, including his house, cars and property.  His wife has not worked since he stopped working in Australia.  They have spent all of their savings.  His mother-in-law sends them money from Korea.  They received about [amount] Korean Won from the sale of their house.  His [relative] was the person who tricked them and took most of their money.  His [relative] was living in Australia at the time they arrived. 

13. When asked what he feared would happen if they returned to Korea now, after almost 12 years in Australia, he said he has not thought about it that much and does not know what would happen.  His health is poor and it would get worse in Korea.  He also had some problems in the past when he worked as a [Occupation 1] and was in the union movement.  He said that, once a person is labelled as a union man in Korea, he is stigmatised for ever.

14. He stopped working as a [Occupation 1] about one year before he came to Australia.  Apart from that work, he also had his own business, running a [name].  He did that for about three years.  As a [Occupation 1], he worked for a private company.  He also acted as a [occupation] in that work and as an [official] for the union.  The Tribunal noted that in his past application he said he had been a [Occupation 2] of a transport company.  He said it is difficult to explain and understand.  He was a spy for the company and infiltrated the union movement on behalf of the company.  The company paid him a bonus on top of his normal salary to spy for them.  The Tribunal noted that the delegate’s decision and his written statement do not indicate that he had ever mentioned being a spy for the company.  He said it was difficult for him to explain it to the delegate.  He told the delegate the truth but was unable to articulate his claims.

15. When asked, he said he never had any trouble because of his union work.  Nobody knew about his role in the union.  The Tribunal asked if he had any trouble with the police or security forces in Korea.  He said he was arrested once when he was participating in a demonstration.  They were all put in the back of a truck and taken to the police station and held there for a few days.  He was not charged with a criminal offence.  Nothing happened to him at the station.  He was kept there for one or two days. 

16. When asked if anything else had happened to him in Korea, he said he was arrested three or four other times for being at a demonstration rally.  He does not know if he was charged with any offences.  He was never taken to court and was not formally charged.  There would be no record of his arrest or detention or being charged. 

17. The Tribunal noted that the delegate’s decision indicates that in his first application he did not make any reference to ever being arrested by the police.  He said that he does not know who prepared that application or what was written in it.  He is not sure if he signed it.  He had no knowledge of the application and did not attend his interview with the delegate or go to his RRT hearing.  The migration agent did it all without him knowing.  The Tribunal put to him that, on one view, it was difficult to understand and believe that he had had no knowledge of anything about that application, particularly when it contained his details and raised similar claims to his current application.  In response, he said that the person who did it was not a migration agent but it was his [relative] who did it all, and his [relative] kept telling them that he was extending their visas for them.  When asked if he told the delegate about this at his interview, he said that he thought he had told the delegate but when he listened to the recording of that interview it was not on the CD and he does not understand what happened.  The second applicant said that they had no knowledge of what her [relatives] did with their past application. 

18. The Tribunal asked the first applicant if he told the police in Korea that he was not really a union member and had been acting as a spy for his employer.  He said that he did not tell them about that, because there was no need to tell the police about it.  When asked why it was not necessary, he said that, when he looks back at what he did, he is ashamed of being a spy for company. 

19. The Tribunal asked him to give details of the other occasions that he was arrested and detained.  He said he could not remember when that happened.  When asked how long before his departure that the last arrest occurred, after a long pause, he said it was maybe three or four years before they left.  He confirmed that he remained working with the company until about a year before they left.  In that last year, he tried to get work with other transport companies but he had no success.  He came to believe that the reason he was not getting a job was because of his involvement in the union.  His friends told him that that was the reason he could not get work.  He did not tell anyone that he had been a spy and was not really in the union.  The Tribunal noted that his evidence about his claims had been vague, confused and inconsistent, which caused it to have concerns about the reliability of his evidence.  He said he has only told the truth. 

20. The Tribunal asked if he feared that those past matters would cause him to suffer harm if he went back now.  He said there are structural problems in the Korean labour market and his past union involvement could cause him problems.  The Tribunal asked if he would seek employment in the transport industry in the future.  He said he does not know what he would do.  He was not sure if he would try and get work in a transport company.  The Tribunal noted that the independent information it had consulted about Korea did not indicate that members of transport unions and employees associated with transport unions were discriminated against and denied employment in the transport industry because of their involvement with a union, and it asked him if he had any independent information or reports to support his claims in this regard.  He did not make any comment in response to this question.  The Tribunal noted that, on one view, it was reasonable to assume that, if such circumstances existed in a country with a vibrant independent media as Korea, there would be some reports available to support his claims.  After a long period of silence, he said that he has not looked for any reports. 

21. The Tribunal noted that, on one view, he had not really been a union member in the past, and had only pretended to be a member so he could spy for his employer, and, if he went back now, it was difficult to understand how that past conduct would cause him to be denied employment or to suffer harm.  In response, he said that the government does not like the labour unions and it treats the union leaders very badly.  The chairman of a union was recently arrested.  If he went back and joined a union, he would have difficulties finding work. 

22. The Tribunal asked if he feared harm in Korea for any other reason.  In response, he said his most important issue is his health.  His life is OK in Australia as the environment is good and free from pollution and dust, unlike Korea.  The Australian government treats people well and there is good health care here, unlike Korea.  If he goes back, he will die.  When asked to explain how and why that would happen, he said that he had a [medical procedure] [number] years ago, and other people who had one at that time and had remained in Korea have since died, but he is still alive because he came to Australia. 

23. The Tribunal discussed the complementary protection criteria and the requirement that it be satisfied that the significant harm was intentionally inflicted on him and that the risk he faced had to be personal to him, and not a risk faced by the population generally.  The Tribunal asked him to explain how he felt the pollution and dust would affect him, about who was at risk of suffering harm from the pollution and who was responsible for causing the dust and pollution.  The first applicant asked if his wife could respond on his behalf.  She said that his doctor in Korea told him he would only live for 10-15 years after the operation in [year] which is why they began to plan to leave Korea and come to Australia and why her [sibling] arranged for them to come.  She said that he became sick in 2014 and [medical event] and was hospitalised for two weeks.  The Red Cross helped them with their expenses.  He was told that his [organ] is functioning at [less than 100%].  That was the first problem he had had in Australia.  The first applicant said that he has collapsed twice in Australia but he is able to survive here. 

24. The Tribunal asked the applicants to comment on their sons’ military service and explain how that would cause them to suffer significant harm.  The second applicant said that their sons were young when they came and will have difficulties if they go back now.  Both applicants acknowledged that their sons’ situation was not directly related to their protection claims and that their sons had also recently made a separate application for protection. 

    Post hearing submissions and information

25. By email [in] April 2016 the applicants provided a copy of a number of reports about air pollution in Korea and dust warnings; about the levels of pollution causing health threats; about smog problems in Korea; about the life expectancy of [medical procedure] patients in the USA; general information about environmental indicators in Korea; as well as a report from the International Trade Union Confederation that ranks Korea below 139 countries for workers’ rights, despite being one of Asia’s ‘freest countries’; and a report by The Economist from 2010 about the issues facing the union movement in Korea. 

26. By email [in] April 2016 the applicants provided a copy of a NASA report about global air quality and an article stating that the Korean government ‘declares war on labour unions’. 

27. By email [in] April 2016 the applicants provided a copy of a July 2015 Amnesty International report on the arrest in Korea of two human rights defenders who organised public demonstration; an Amnesty International report from January 2015 about the use of national security laws in Korea to restrict freedom of expression; a statement by the Korean Confederation of Trade Unions from 2006 about the repression of workers’ rights by the Korean government; media reports on pollution levels and high smog posing health threats; an Amnesty International report about the issues surrounding the recent appointment of the new Human Rights Commissioner without consultation; and a copy of the recent Amnesty International World Report on Korea and an Amnesty International report on conscientious objectors in Korea.

    FINDINGS AND REASONS

    Assessment of the applicants’ claims and evidence about past events

28. 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

29. 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 [city], 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. 

30. On the basis of their consistent evidence the Tribunal accepts they were born in Korea on [date] (applicant one) and [date] (applicant two) and that they were married in Korea in 1986 and have [children] born in Korea on [date] and [date], and that all four of them entered Australia [in] November 2004 as the holders of [subclass] Business visas, and have remained in Australia since that time. 

    Claims to fear harm in Korea

31. As noted above, only the first applicant made claims to be owed protection and only he gave evidence to support those claims, and the second applicant confirmed at the recent hearing that her claims rest on his claims.  When asked at the recent hearing what he feared would happen if they returned to Korea, his initial response was that he had not thought about it much and that he does not know what would happen.  He claimed that he had been labelled as a union man in Korea and that that would cause him problems in the future, as it had in the past.  He claimed he participated in anti-government rallies with his colleagues who opposed the government’s treatment of human rights, and that he had been labelled a communist and that he had been unable to express his views about North Korea and re-unification.  He also said that he has serious health issues and that the pollution in Korea would cause him to suffer significant harm.   

32. With regard to his fears arising from his past union work and his political opinions, for a number of reasons discussed below, the Tribunal had serious concerns about the reliability of his evidence in support of his claims, as his evidence about a number of significant matters was confused, contradictory and inconsistent over time and, in many respects, vague and general and far from convincing. 

1. For example, in their first application lodged in September 2006, he claimed that he had been harassed in Korea by the National Security Agency because of his history of co-operating with the leaders of the Socialist movement and that he had been accused of being a Communist.  He made no mention in that application of being arrested or detained in Korea, nor did he refer to being a union member or a ‘high-level union official’, as he has claimed in the current application. 

2. According to the delegate’s decision record, when he was asked at his interview in November 2014 about the discrepancies between his past and current application, he responded by saying that he did not go to prison but was detained at the police station for his union activities.  He did not initially claim that he was unaware of the content of that first application, which is what he told the delegate towards the end of his interview, when he said that he just followed what his [relative] told him to do as his [relative] had promised to get him permanent residency.  However, at the hearing, when the Tribunal asked him to explain why he did not mention being arrested or detained in his first application, he initially said that he did not know who prepared that application or what was written in it and claimed that he had no knowledge of the application.  He then said that the migration agent did it all without him knowing. 

3. As can be observed, his evidence and responses were vague, confused and inconsistent, and when the Tribunal put to him that, on one view, it was difficult to understand and believe that he had had no knowledge of anything about that application when it contained his details and raised similar claims to his current application, he responded by saying that the person who completed his application was not a migration agent but was his [relative] who did it all and kept telling them that he was extending their visas.  When the Tribunal asked if he told the delegate about this at his recent interview, he said that he thought that he had told the delegate about it, but then when he listened to the recording of that interview it was not on the CD recording, and he does not understand what happened.  The second applicant said that they had no knowledge of what her [sibling] and [relative] did with their past application. 

4. In addition, in his current application, he declared that he had been a [Occupation 1] from 1994 to November 2004.  According to the delegate’s decision record, he told the delegate at the interview that he was the [Occupation 2] of a transport company, which is what he declared in his first application.  At the hearing, in his initial evidence about his past work, he said that, after he finished school, he worked as a [Occupation 1] and he did not mention that he did any other work.  He later said that he had worked as a [occupation] in the transport company and that he had stopped working as a [Occupation 1] about a year before he left Korea and then, for the first time, said that he had also owned and operated a [business] for three years. 

5. With regard to his claimed involvement in a labour union, in his written statement that accompanied his current application, he did not refer to or mention that he had been involved with or associated with a union.  However, according to the delegate’s decision record, he told the delegate at the interview that he was a ‘high level union official’ and that he had been a union activist, which is why he was arrested and detained.  At the hearing, he said he had been in a union when he was a [Occupation 1] and that he had been an [official] in the union. 

6. When the Tribunal noted that he had previously claimed he was the [Occupation 2] of a transport company, he said, for the first time, that he had actually been a spy for the transport company and had infiltrated the union movement in order to spy for his employer and had been paid a bonus for acting as a spy.  When asked why he had not before mentioned that he had been a spy, he said that it had been difficult for him to explain his circumstances to the delegate but that he had told the delegate the truth. 

7. The Tribunal has carefully considered his comments and explanation for why he was unable to give a consistent and detailed account of the circumstances of his past employment and claimed union involvement in Korea; however, it has concerns about the reliability of his responses and evidence, and, while it is prepared to accept that he may not have perfect memory recall and may not be able to recall precise details of events that happened in the past, and that he may have been nervous at his interview and at the hearing, having carefully considered the evidence before it, the Tribunal does not accept that his responses provide a satisfactory explanation for his inability to maintain a consistent account of his claims about these matters.  In the context of his claims to be owed protection, these were important matters, and, in the circumstances, if his evidence was based on his personal experiences, it is reasonable to expect him to have maintained a consistent account of who assisted him in preparing his first application, the type of work he did in Korea, whether he was involved with or a member of a transport or labour union, if so, whether that involvement was voluntarily or as a spy for his employer, and the reasons why he was subjected to harm in Korea, and his inability to do so, reflects poorly on his credibility and reliability as a witness. 

8. Further, his evidence about his claims to have been arrested and detained in Korea, was also vague, confused and inconsistent.  As noted above, he made no mention of these claims in his first application lodged in September 2006.  In his written statement that accompanied his current application, he said he had been arrested and detained by the police on several occasions.  According to the delegate’s decision record, he told the delegate at the interview that he was arrested and detained by the police on several occasions, but when asked to state when he was last arrested, he could not recall when or where he was last arrested, but later said that it occurred in Seoul, and when asked to be more specific, he said ‘somewhere near the Seoul train station’. 

9. When the Tribunal asked him at the hearing if he had ever had trouble because of his union work, he initially said answered ‘no, he had not had any problems’ because ‘no one knew about his role in the union’.  However, when the Tribunal subsequently asked if he had had any trouble with the police or security forces, he said ‘he was arrested once’ when he was participating in a demonstration and that ‘they were all put in the back of a truck and taken to the police station and held there for a few days’.  Despite his initial evidence that he was ‘arrested once’ he later said that he was arrested three or four other times for being at a demonstration rally. 

10. When the Tribunal asked him to give details of the occasions that he was arrested and detained, he said that he could not remember when it happened, and when asked how long before his departure the last arrest had occurred, after a long pause, he said it was ‘maybe three or four years before they left’ but was unable to give any other details.

11. When the Tribunal noted that his evidence in support of these claims had been vague, confused, inconsistent and lacking in detail, he said that he has only told the truth.  When the Tribunal asked if he told the police on being arrested and detained for several days that he was not really a union member and was a spy for his employer, in order to avoid being detained and / or mistreated, he said that he did not say anything to the police about it because there was no need to, and when asked why not, he said that when he looked back on his conduct he was ashamed. 

12. The Tribunal has carefully considered his comments and explanation for why he was unable to give a detailed and consistent account of his claims to have been arrested and detained in Korea; however, it has concerns about the reliability of his responses and evidence, and, while it is prepared to accept that he may not have perfect memory recall and may not be able to recall precise details of events that happened in the past, and that he may have been nervous at his interview and at the hearing, having carefully considered the evidence before it, the Tribunal does not accept that his responses provide a satisfactory explanation for his inability to maintain a consistent account of his claims about these matters.  In the context of his claims to be owed protection, these were significant matters, and, in the circumstances, if his evidence was based on his personal experiences, it is reasonable to expect him to have maintained a consistent and detailed account of the occasions that he claims he was arrested and detained, and his inability to do so reflects poorly on his credibility and reliability as a witness. 

13. Considered cumulatively, the concerns the Tribunal holds about his credibility on these matters lead it to find that his evidence about these claims was not reliable and that the account of events on which his protection claims are based is not credible.  As discussed above, his evidence about important aspects of his claims was inconsistent over time, and the Tribunal considers that on more than one occasion he was willing to adjust and adapt his evidence to fill in perceived gaps in his claims and reconcile otherwise inconsistent statements.  Further, at times he was confused and uncertain in the answers he gave to questions which, if the events claimed had taken place, the Tribunal would have expected clearer answers, and, at other times, he was hesitant and appeared evasive in giving responses and often did not provide clear or direct answers, but gave vague and general responses.

14. In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked, and has also taken into account the effect of the passage of time on his ability to recount his experiences.  It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’, and to the potential difficulties that can occur through giving evidence through an interpreter.  However, the Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that his evidence on these matters was unreliable. 

15. For all of the above reasons, the Tribunal has no confidence in accepting any of the applicant’s inconsistent and confused evidence about his claimed experiences of mistreatment and ‘union involvement’ in Korea and what occurred to him before his departure in November 2004.  In light of its finding that his evidence was unreliable, having regard to his inconsistent, confused and vague evidence about his circumstances in Korea, on the evidence before it, the Tribunal does not accept that he was a [Occupation 2] of a transport company in Korea, or that he was a ‘high level union official’ or a union member or that he joined a labour union as a spy for his employer, or that he was ever arrested or detained or otherwise came to the adverse attention of the police or security forces in Korea for any of those or any other reasons.  For these reasons, on the evidence before it, the Tribunal does not accept that at the time he left Korea he was a person of adverse interest to the Korean authorities or anyone else as claimed, and it does not accept that he had been labelled as a union man or a ‘communist’ or ‘socialist’ in Korea, or that he had participated in anti-government rallies with colleagues who opposed the government’s treatment of human rights, or that he had been unable to express his views about North Korea and re-unification, as claimed.

16. For all of the above reasons, on the evidence before it, the Tribunal does not consider there are substantial grounds for believing there is a real risk that either applicant will suffer significant harm because of his past work in Korea or for any event that occurred in Korea prior to their departure in November 2004.  Having found that he was not in the past a member of a labour union or a trade union, on the evidence before it, the Tribunal does not accept that he would wish to, or that he would, join a union in Korea in the future, and, it follows as a matter of logic that it does not accept that those reasons would cause either applicant any difficulties in finding work, and that it does not consider that there are substantial grounds for believing that there is a real risk that either applicant will suffer significant harm in the future for those reasons. 

17. With regard to their other claims, on the evidence before it, the Tribunal accepts that their [children], who are now over the age of 18, would be obliged to undertake two years of military service in the event they returned to Korea in the reasonably foreseeable future.  However, as discussed with the applicants at the hearing, their evidence does not indicate or suggest that those factors would be a reason why the applicants would suffer significant harm, and they did not offer or suggest any credible basis to consider that they would suffer significant as a result of the military service.  Accordingly, having carefully considered the information and evidence before it, the Tribunal does not consider there are substantial grounds for believing there is a real risk that either applicant will suffer significant harm because of their [children] undertaking military service in the future. 

18. With regard to his health issues, on the evidence before it, the Tribunal accepts that the first applicant had a [medical procedure] in Korea in about 1991 and that he suffers from [medical conditions].  At the hearing, he claimed that his most important issue is his health and that while his life is OK in Australia, as the environment is good and free from pollution and dust, unlike in Korea, and that, if he goes back, he will die.  When asked to explain how and why that would happen, he said that he had a [medical procedure] 25 years ago and that the other people who had the same operation at that time, and have since remained in Korea, have died, but he is still alive because he came to Australia.  When asked to explain how the higher levels of pollution and dust in Korea would affect him, the second applicant said that his doctor in Korea told him he would only live for 10-15 years after the operation in 1991, which is why wanted to come to Australia and why her [sibling] arranged for them to come.  She said that he became sick in 2014 and [medical event] and was hospitalised for two weeks.  The Red Cross helped them with their expenses.  He was told that his [organ] is functioning at [less than 100%].  That was the first problem he had had in Australia.  The first applicant said that he has collapsed twice in Australia but he is able to survive here. 

19. The Tribunal has carefully considered their claims in this regard, including the information and reports they have provided about the high pollution levels in Korea and the possible adverse impact that might have on the applicant’s condition.  However, they have not provided any medical evidence to explain or indicate how the applicant’s current medical condition would be adversely affected by his return to Korea.  The medical evidence they have provided does not indicate that he currently requires any particular ongoing medical treatment, nor does it provide a prognosis with regard to his condition in the future.  Indeed, the available medical evidence does not indicate that he requires any specialised medical treatment or medicines, or that he would be unable to obtain any particular medical treatment in Korea, and they have not provided any details of or referred to specific information about the treatment, services or medicines that they claim he requires and whether or not he would be able to access or afford in Korea.  The information before the Tribunal does not indicate that the Korean government denies or withholds access to health services or medical treatment to people for any particular reason.  While the Tribunal is prepared to accept that Korea has higher levels of pollution than Australia, the information and evidence before it does not indicate that, if the applicant were to return to Korea, the higher levels of pollution and smog would cause him to suffer significant harm.

20. For these reasons, having carefully considered the evidence and information before it, the Tribunal does not consider that there are substantial grounds for believing there is a real risk that either applicant will suffer significant harm because of his medical conditions or for any other related reason, in the event they returned to Korea now or in the reasonably foreseeable future.

21. With regard to their claims that they would return with no assets or money, and would have no place to live, and that, because of their age and lack of recent work experience, they would each have no prospects of finding work, and would have great difficulty in adjusting to life in Korea, as discussed with them at the hearing, the Tribunal has to assess whether there are substantial grounds for believing there is a real risk that either of them will, as a necessary and foreseeable consequence of returning to South Korea, suffer significant harm, as defined.  On the basis of their evidence at the recent hearing, the Tribunal accepts that that they have no assets in Korea or in Australia, and that, if they return to Korea after an absence of more than 12 years, they would be faced with a very difficult situation and would most likely have difficulty in finding employment and a place of their own to live.  However, their evidence indicates that her mother continues to live in Seoul and that she has provided them with financial support in the recent past.  As discussed with them at the hearing, while it appreciates their loss of connection to 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 12 years, the evidence and information before the Tribunal does not indicate that there are substantial grounds for believing that, as a necessary and foreseeable consequence of their return to Korea, there is a real risk that either of them will suffer significant harm. 

22. Accordingly, on the evidence before it, and having considered their claims individually and cumulatively, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to South Korea, there is a real risk that either of them will suffer significant harm. 

    CONCLUSIONS

23. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has complementary protection obligations and it finds that they do not satisfy the criterion set out in s.36(2)(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

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

    Christian Carney
    Member

    APPENDIX 1 - RELEVANT LAW

25. 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.

1. 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.  However, in SZGIZ v MIAC, the Full Federal Court held 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.  Applying the reasoning in SZGIZ v MIAC, the Tribunal does not have power to consider the Refugee Convention criterion in s.36(2)(a), and, accordingly, has proceeded on the basis that it can only consider the applicant’s claims under the Complementary Protection provisions in s.36(2)(aa) of the Act. 

2. 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.

   Complementary protection criterion

3. 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’). 

4. ‘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.

5. 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

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.