1500901 (Refugee)

[2016] AATA 3545

1500901 (Refugee) [2016] AATA 3545 (11 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500901

COUNTRY OF REFERENCE:                  Korea, Republic Of

MEMBER:Lesley Hunt

DATE:11 March 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 11 March 2016 at 1:26pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of the Republic Of Korea, applied for the visa [in] October 2013 and the delegate refused to grant the visa [in] January 2015.

3. The applicant appeared before the Tribunal on 10 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

7. Australia is a party to the Refugees Convention and generally speaking, 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.

8. 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’).

9. 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.

   The Issue

10. The issue in this case is whether the applicant has a real chance of serious harm, or is at real risk of significant harm, as a result of his parents owing money to money lenders. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of Nationality and Receiving Country

11. The applicant submitted a certified copy of his Republic of Korea Passport, Republic of Korea Resident Registration Certificate, and Republic of Korea Certificate of Military Service with his visa application.  The Tribunal is satisfied that the applicant is a national of the Republic of Korea for the purpose of s.36(2)(a) and the Republic of Korea is the receiving country for the purpose of s.36(2)(aa).  The Tribunal has assessed his claims against the Republic of Korea accordingly. 

12. The Tribunal is satisfied that the applicant does not have the right to enter and reside in any country other than the Republic of Korea.  He is therefore not excluded from Australia’s protection by s.36(3) of the Act.

    Claims for protection

13. The applicants’ claims and evidence are set out in the departmental file and the Tribunal file.  The departmental file includes the application for protection, a number of identification documents, a recording of the applicants’ interview with the department [in] January 2015, and the delegate’s decision record. Evidence to the Tribunal includes the review application, a copy of the delegate’s decision record provided by the applicant to the Tribunal, and the applicant’s oral evidence at the hearing conducted on 10 March 2016. 

14. The delegate’s decision record, a copy of which was provided by the applicant to the Tribunal with the review application, sets out the applicant’s migration history as follows.  He was granted a [temporary visa] [in] February 2009 and first arrived in Australia [in] April 2009.  He was granted a second [temporary] visa [in] May 2010.  The visa ceased [in] April 2011 and the applicant departed Australia on the same day.  He returned to Australia [in] May 2011 after being granted a [different temporary] visa [in] May 2011.  He applied onshore for a [different temporary] [visa] however the visa was refused [in] August 2011.  He applied for a protection visa [in] October 2013 and was granted an associated [Bridging] visa [in] October 2013.

15. The Tribunal has carefully considered all the claims and evidence in this matter and has summarised the applicant’s claims as follows. 

16. The applicant lived with his parents and [sibling] in [Korea].  He completed [number] years of formal education including a year at [a] University.  He completed his military service from June 2004 to the end of May 2006. He did not complete his university studies and worked as [occupation] and doing other jobs before coming to Australia in April 2009.

17. The applicant stated that his family were not wealthy; however he did not want for anything during his childhood.  His father was [an occupation] and his mother worked at a [business].  They purchased an apartment and the family lived there comfortably.  In 2001 the applicant’s father invested in the stock market.  At first this produced income; however a “swindler” enticed his parents into a bad investment and as a result his parents had to sell their home and [other property] and borrow money from a financial service.  This happened when the applicant was at [school].  After the applicant completed his military service he worked hard to save money for his studies however he was harassed by the moneylenders.  He was not able to work anymore and fled to Australia.  He returned to his home in Korea in April 2011 after his second [temporary] visa ceased; however he was very anxious and could not sleep because he was afraid of the moneylenders.  For this reason he came back to Australia. He applied for protection in Australia because he was afraid that the moneylenders would threaten, harm and mistreat him if he returned to Korea.  He was incapable of paying the absurdly high amount of money they demanded.  The government and police are reluctant and passive when it comes to personal debt matters. 

18. The delegate’s decision record indicates that the applicant stated at his interview with the delegate that his parents had owed [an amount] won.  They were subjected to a lot of pressure to repay the money with interest.  The pressure involved threats and intimidation from people coming around to their home and workplaces.  The applicant was taken out of a university class and taken away in a car and beaten.  He was threatened and beaten again when he returned to Korea in 2011.  However the situation for his family had improved compared to before and he thought that within a year his parents will have sorted out their problems as they are paying off the debt.  He was not sure how much money remained owing to the moneylenders.  He would return to South Korea and resolve the issues there and then move to [Country 1] to live with his partner; a [Country 1] woman he met in Australia.

19. At the Tribunal hearing the applicant provided the following information in response to questions from the Tribunal.  He confirmed that his parents and [sibling] live together in an apartment in [the] City; his father works as [an occupation] for a company and his mother works in a [business].  His [sibling] works for a [service] company. 

20. The applicant clarified that his parents borrowed money from moneylenders; not from a bank.  As a result they received a lot of pressure to repay the loan with high interest.  He stated that he did not know how much of the debt his parents had repaid and did not know how much of the debt remained outstanding.

21. The Tribunal asked the applicant if he had any documentary evidence supporting his claim that his parents borrowed money from moneylenders at a high rate of interest.  He responded that he did not; however he thought he could obtain documentary evidence of the sale of the family home and the [other property]. 

22. The Tribunal put to the applicant that it is reasonable to assume that if his parents borrowed money from a money lender there would be something to document the loan and the rate of repayment, how the repayments were to be made and the identity of the money lender, etc.  The Tribunal put to the applicant that he lodged his claim for protection [in] October 2013 and his claims are based on the existence of the debt.  It is now March 2016 approximately two and a half years since he applied for the visa.  In the Tribunal’s view the applicant has had ample time in which to obtain evidence to support his claims and has been provided with a sufficiently clear indication, through the delegate’s decision record, that documentary evidence supporting his claim would assist his application.  That he has not submitted evidence supporting his claim raises a concern as to the veracity of his claims regarding the debt. The applicant responded that he is not the debt holder so the documents are not his.  The Tribunal put to the applicant that he is the protection visa applicant and it is up to him to try to substantiate his claims and that he has not obtained any documentary evidence of the loan raises a concern about the credibility of the claim.

23. The Tribunal asked the applicant if anything adverse had happened to his parents as a result of the actions of the moneylenders.  He responded that up to two years ago there were some incidents; however it is now under control.  When he phones home now his father does not refer to any incidents involving the moneylenders.  He stated that his [sibling] was also threatened by the moneylenders but his [sibling] would not tell him any of the details.  The applicant referred to the incident where he was taken from university and put in a car and driven to a location and beaten and demands were made for the money owed.  He stated that he was threatened numerous times and received numerous phone calls from the moneylenders about the money owed.

24. The applicant stated that he did not know how much of the debt remained.  He knew that a lot of the debt had been repaid.  However he still suffered a lot of fear and anxiety because of the things that had happened in the past. The Tribunal advised the applicant that it had to make an assessment regarding the chance of the applicant being seriously harmed in the reasonably foreseeable future.  He responded that previously there was a real danger; however now it is more about the psychological difficulties for him. He becomes extremely anxious and has bad memories. 

25. The Tribunal asked the applicant if he or any member of his family had reported the actions of the money lenders to the police.  The applicant responded that they had reported to the police however they were told that as there is an outstanding debt the police could not do much about it.  The Tribunal asked the applicant if the police responded to the threats and intimidation perpetrated by the moneylenders.  The applicant responded that because there was no murder or physical assault not much could be done. 

26. The applicant stated that when he returned to Korea in 2011 he could not sleep because of his high anxiety.  He thought he should leave Korea and so he returned to Australia.

27. The applicant stated that he did not know about any recent incidents of threats and intimidation against his family; he was not sure if there was any debt remaining; the moneylenders might still be making demands on his family; his family do not tell him the specific details but they say that the situation has normalised.  He clarified that his parents know that he has applied for protection in Australia; they have not given him any specific information regarding the remaining debt or actions of the debt collectors.  They have indicated that the debt is getting repaid and they told him that it is almost all resolved. 

28. The Tribunal asked the applicant what he thought would happen if he returned to his home in Korea. He stated that previously he felt a real danger; however he now thinks it might be okay.  A lot of bad things have happened since his childhood so he becomes very anxious. He is planning on going to live in [Country 1].

29. The applicant clarified that he is more worried about his emotional state if he returns to Korea.  He is not sure that he would be emotionally normal because of the past events occurring since his childhood.  He does not want to live in Korea and he becomes nervous and anxious when he thinks about having to return there.  He stated that he is not certain about his home situation exactly.  He felt safe in Australia. 

30. The Tribunal put to the applicant the following independently sourced country information and asked him for his response to or comments about the information.  The Korean government enacted the 2002 Moneylending Registration Act.  Under Article 10 of the Act, moneylenders shall not assault or threaten borrowers to collect money, nor can they significantly harm the private or work life of the borrower by causing fear or uneasiness to either the borrower or to people connected to the borrower.  Moneylenders also may not visit the borrower, or those connected to the borrower, without just cause.  Those who breach this law may be subject to a maximum prison term of either three or five years or fines of up to KRW 50 million or KRW 30 million, depending on the nature of the offence.[1]  Also, a report in the Washington Post in February 2014 indicates the government of South Korea launched a task force to crack down on the moneylenders and loan sharks.[2]

    [1] Canada: Immigration and Refugee Board of Canada (LIRB) 2007, Nature and extent of loan-sharking; protection available for victims of loan sharks.

    [2] Harlan, C 2014, ‘south Korea tries to curb household debt and avert a crisis’, Washington Post, 24 February.

31. Also there is a Financial Supervisory Service (FSS) in Korea which manages a hotline with the help of the police and municipalities so that people could call and report loan sharks.  Koreans can also obtain assistance from the Korea Legal Aid Corporation.[3] 

    [3] Kim, T 2012, ‘Loan sharks corner low income earners’, Korea Times, 22 May.

32. The Tribunal put to the applicant that the independent information indicates that while debt collection methods are identified as a serious problem in Korea, the government has enacted legislation and other mechanisms for the protection of people pressured by loan sharks / moneylenders. 

33. In response the applicant thanked the Tribunal for providing the information.

34. The Tribunal put to the applicant the following concerns about his claims for protection.  The first concern is that he has not submitted any documentary evidence supporting his claim that his parents owe money to moneylenders in Korea.  He did not depart Korea for approximately six weeks after the grant of his first [temporary] visa in early 2009.  He returned to Korea in April 2011 and remained there for approximately six weeks.  He stayed in Korea for sixteen days after the grant of his [different temporary] visa in May 2011.  He did not apply for protection until [October] 2013 – more than four years after first arriving in Australia and more than two years after his second entry to Australia in May 2011.  The Tribunal’s concern is that these actions are not indicative of a person in fear of serious harm or significant harm in Korea.  In addition the Tribunal notes that the applicant is unclear as to whether or not there remains an outstanding debt and his fears of being seriously harmed or significantly harmed appear to have diminished.

35. In response the applicant stated that he was preparing himself for his return to Korea and was hoping for time to finalise things before going.  He wants to go to [Country 1] in May 2016. 

    FINDINGS AND REASONS

36. After assessing all the evidence the Tribunal has made the following findings. 

37. The Tribunal has concerns as to whether or not the applicant’s claims were truthful that his parents had or have an outstanding debt and were / are being pressured, threatened and intimidated by money lenders to repay the money owed.  The concerns arise from the fact that the applicant has not submitted any corroboratory evidence in support of this claim in spite of several years having passed since he applied for protection.  In the Tribunal’s view it is reasonable to assume that if the claim were true, and if the applicant held a genuine fear for his safety and well-being in Korea as a result of this claim, he would have endeavoured to obtain some documentation of the loan and written confirmation from his parents regarding the intimidation and threats from the moneylenders.  The fact that the applicant delayed his departure from Korea for six weeks after being granted a visa for Australia in early 2009; his return to Korea in April 2011; and his delay in applying for protection in Australia also undermine the veracity of the claim. 

38. However the Tribunal is prepared to give the applicant the benefit of the doubt and accepts that the applicant’s parents owed money to moneylenders and were subjected to intimidation and threats as a result.  The Tribunal is also prepared to accept that the applicant was subjected to intimidation, threats, and physical assault by the money lenders. However, as put to the applicant at the hearing, the Tribunal is required to assess the chance / risk of the applicant being subjected to serious harm or significant harm in the reasonably foreseeable future in Korea.  For the following reasons the Tribunal has determined that the applicant does not face a real chance of serious harm, or a real risk of significant harm from moneylenders in Korea.

39. The applicant’s evidence to the Tribunal is that he is unclear if there remains a debt and if there is a debt remaining he is unclear as to how much money is owed.  He stated that his parents told him that the debt is “getting repaid” and “it is almost all resolved”.  The applicant told the Tribunal that previously he felt a real danger; however he now thinks it might be okay.  The applicant stated that he is worried about his emotional and psychological well-being in Korea because of what happened to him in the past when he was assaulted and intimidated by the money lenders.  The Tribunal finds on the basis of these statements by the applicant that the chance of him being subjected to serious harm by moneylenders in the future in Korea is remote. 

1. The Tribunal notes the applicant’s claim that his past experiences will cause him emotional and/or psychological harm if he returns to Korea.  The Tribunal accepts that the applicant’s past experiences may have an emotional and psychological effect on him, however for the following reasons the Tribunal finds that any emotional / psychological effect will not amount to serious harm.  The applicant returned to Korea in 2011 and remained there for approximately six weeks and does not claim to have been emotionally and / or psychologically affected to an extent that could be regarded as serious harm.  He delayed departing Korea for approximately two weeks after being granted a visa for Australia and in the Tribunal’s view if the applicant was suffering serious emotional / psychological harm he would have departed at the first opportunity.  He does not claim to have required any medical or psychological treatment on return to Australia or at any time thereafter. In addition, the threat of further intimidation, threats and assaults is greatly diminished given that either all or a significant amount of the debt has been repaid.  After assessing all the evidence, the Tribunal is satisfied that any emotional or psychological issues that may arise for the applicant in Korea would not amount to serious harm. 

2. In addition, as put to the applicant at the hearing, independent sources of information indicate that the government of Korea has enacted legislation governing the actions of creditors seeking loan repayments from debtors and their family members.  The 2002 Moneylending Registration Act, states at Article 10, that money lenders shall not ‘assault or threaten’ borrowers to collect money, nor can they ‘significantly harm’ the private or work life of the borrower by causing ‘fear or uneasiness’ to either the borrower or to people connected to the borrowers.  Moneylenders also may not visit the borrower, or those connected to the borrower, without just cause.  Those who breach this law may be subject to a maximum prison term of either three years or five years, or fines of up to KRW 50 million or KRW 30 million depending on the nature of the offence.[4]

   [4] Canada: Immigration and Refugee Board of Canada (IRB) 2007, Nature and extent of loan-sharking; protection available for victims of loan sharks. 

3. The Washington Post reported in February 2014 that the South Korean government has created a government task force to deal with loan sharks / creditors.  On the evidence before it, the Tribunal finds that the government has acted to protect people from money lenders and loan sharks and to regulate their methods of debt collection.  Under the legislation, money lenders who assault or threaten or cause fear or uneasiness, money lenders who breach the law, are liable for imprisonment or a significant fine. 

4. In assessing the effectiveness of the implementation of the law, the Tribunal noted the following independent information.  The Financial Supervisory Service (FSS) managed a hotline with the help of the police and municipalities so that people could call and report loan sharks.  From the opening of the hotline on 18 March 2012 until 22 May 2012, the line had received more than 20,000 calls.  The cases of more than 5,000 of the callers were being handled by the police, with another 3,300 taken to the Korea Asset Management Corporation, and 560 of the callers being supported by the Korea Legal Aid Corporation.[5]  The FSS also had consultation teams in marketplaces and poor neighbourhoods with a high demand for illegal private loans in efforts to reach people who may find it difficult to report damage by telephone or over the internet.[6]Police were investigating cases of lenders who ‘severely damage debtors’ private lives causing them to feel fear or anxiety through repeated phone calls and threats’.  The FSS requested police and prosecution to investigate some cases and arranged long-term, low-interest loans or free legal consulting services for others by informing the Korea Asset Management Corporation.[7]

   [5] Kim, T 2012, ‘Loan sharks corner low income earners’, Korea Times, 22 May.

   [6] ‘Loan shark crackdown gets massive response’ 2012, Korea Herald.

   [7] Ibid.

5. In addition, the United States Department of State (USDOS), Country Report on Human Rights Practices for 2014 in Korea states that civilian authorities have maintained “effective control over police” and the government has “effective mechanisms to investigate and punish police abuse and corruption.”[8]

   [8] USDOS 2015, Country Report on Human Rights Practices 2014 – Republic of Korea, 25 June, Section. 

6. Given the laws in place specifically to protect debtors, their family members, and other people connected to them, the independent information regarding the general effectiveness of police in South Korea, and the mechanisms in place to assist low-income earners to repay debts from private money lenders, the Tribunal is satisfied that the chance of the applicant being seriously harmed by money lenders in Korea is remote. 

7. The Tribunal assessed the applicant’s claims individually and cumulatively.  Given the findings above, the Tribunal is satisfied that the applicant does not have a real chance of serious harm from money lenders in the reasonably foreseeable future in Korea.  Accordingly the Tribunal finds that the applicant’s fears of persecution in the future in Korea are not well-founded.

   Complementary Protection

8. The Tribunal then considered the applicant’s claims under the complementary protection legislation. In so doing the Tribunal considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Korea, there is a real risk that he will suffer significant harm, as it is defined in s.36(2A) and s.5(1).

9. The Tribunal considered the applicant’s claims that he will be subjected to harm, in particular emotional and psychological harm, by the money lenders. The Tribunal notes the applicant’s evidence that he is unclear about how much of the debt remains, if any, and that his parents have indicated that the debt is “getting repaid” and “it is almost all resolved”.  The applicant also stated that previously he felt a real danger; however he now thinks it might be okay.

10. The Tribunal also notes the laws in place specifically to protect debtors, their family members, and other people connected to them; and the independent information regarding the general effectiveness of police in Korea; and the mechanisms in place to assist low-income earners to repay debts from private money lenders.  After assessing all the evidence, the Tribunal is satisfied that the significant reduction in the amount of money owing and the level of protection offered by the South Korean authorities reduces the risk of significant harm to the applicant to less than a real risk.

11. In any event, in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition.[9] Given the Tribunal’s findings above, that the applicant does not face a real chance of serious harm in Korea, the Tribunal is satisfied that the applicant does not face a real risk. 

    [9] MIAC v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].

12. The Tribunal notes that ‘significant harm is different from the concept of serious harm in the context of s.36(2)(a). With regard to the applicant’s claims of emotional and psychological harm, the Tribunal accepts that the applicant’s past experiences may have an emotional and psychological effect on him.  In assessing whether this amounts to significant harm the Tribunal is notes that the types of harm that amount to ‘significant harm’ are exhaustively defined by s.36(2A). Under this provision, a person will suffer significant harm if he or she will be arbitrarily deprived of his or her 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.  The terms “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” are further defined n s. 5(1) of the Act and require “severe pain or suffering” and in the case of degrading treatment or punishment, “extreme humiliation”.  After assessing all the evidence the Tribunal is satisfied that the applicant does not face a real risk of significant harm from money lenders in the future and/or as a result of his past experiences at the hands of money lenders. 

13. The Tribunal considered the applicant’s claims separately and cumulatively.  The Tribunal is satisfied that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Korea, he will be at real risk of significant harm. 

    CONCLUSION

14. 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).

15. 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).

16. 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

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

    Lesley Hunt
    Member