1420802 (Refugee)

This matter concerned an application for a Protection visa by a family, the subject of review by the Tribunal. The applicants had previously applied for a Protection visa in 2006, which was refused. Following the introduction of complementary protection criteria into the Migration Act in March 2012, and the Federal Court's decision in *SZGIZ v MIAC* (2013) 212 FCR 235, the applicants became eligible for assessment against these new criteria and lodged a further application in April 2014. The primary applicant claimed he sought a better life for his family and had been deceived by a friend in Australia. He expressed fear for his children's well-being in Korea due to mandatory military service, noting they had become Australianised since their arrival in 2004. He also claimed past arrests and detention in Korea for anti-government rallies, labelling as a communist sympathiser, and psychological mistreatment by authorities, though no physical abuse was alleged. He stated he was a union official and activist, but could not recall specific details of past arrests when questioned by the delegate.

The legal issues before the Tribunal were whether Australia owed complementary protection obligations to the applicants, and specifically, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to Korea, they would suffer significant harm. The Tribunal was required to consider the applicants' claims in light of the complementary protection criterion under section 36(2)(aa) of the Migration Act, as the Full Federal Court in *SZGIZ v MIAC* had determined that section 48A of the Act confined the Tribunal's jurisdiction in this instance to the complementary protection grounds, precluding consideration of the Refugee Convention criterion under section 36(2)(a). The Tribunal was also directed to consider relevant policy guidelines and country information.

The Tribunal's reasoning focused on the complementary protection criterion. It found that the applicants had not satisfied the criterion set out in section 36(2)(aa) of the Migration Act. The Tribunal was not satisfied that there were substantial grounds for believing that the applicants would suffer significant harm upon return to Korea. The Tribunal noted the applicant's inability to recall specific details of past arrests and detentions, and that no physical mistreatment was alleged. Furthermore, the Tribunal found no suggestion that either applicant satisfied section 36(2) on the basis of being a family member of a person who met the criteria under section 36(2)(a) or (aa) and held a Protection visa.

Consequently, the Tribunal affirmed the decision not to grant the applicants a Protection visa, concluding that they did not satisfy the criteria for such a visa.