1502514 (Refugee)

[2016] AATA 4050

1502514 (Refugee) [2016] AATA 4050 (5 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502514

COUNTRY OF REFERENCE:                  Korea, Republic Of

MEMBER:Tania Flood

DATE:5 July 2016

PLACE OF DECISION:  Sydney

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

Statement made on 05 July 2016 at 3:06pm

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of the Republic of Korea (Korea), applied for the visas [in] February 2014 and the delegate refused to grant the visas [in] February 2015.

   THE LAW

3. 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.

4. 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).

5. 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.

6. 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’).

7. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

8. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether there is a real chance the applicants will suffer serious harm on return to Korea or alternatively whether there are substantial grounds for believing that there is a real risk, they will suffer significant harm if removed from Australia to Korea.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Summary of claims

10. The applicants are a de facto couple.  The second named applicant claims to be a member of the same family unit as the principal applicant but makes no specific claims of her own. 

11. In his application for a Protection visa, the primary applicant makes the following claims:

12. He left Korea because of his parents’ failed business and pressure and threats from their creditor’s to pay debts.

13. His father ran a [certain] business and when the financial crisis hit Korea in 1997 he was only in year [number] and too young to know that his father’s business was failing.  When he was in junior high school he no longer knew in which part of the country his father was living.  It was difficult to see him even once a month.

14. Around the time he entered high school his house was often visited by people looking for his father.  This situation intensified when he was in year [number].  All valuable properties were tagged for confiscation and money brokers raided his school.

15. He barely graduated from high school and joined the army to escape.  For the first year he was not disturbed by his father’s acquaintances or money brokers.  After that they began to visit him at the army barracks and threatened him frequently to pay back the money his father owed.  He could not carry out his army duties any longer.

16. After he was discharged from the army he poured all his superannuation into paying the debt however it was not enough and the creditors required him to pay it all back as his parents could not do so.

17. Whenever he joined a new company he was chased up and threatened to pay.  He could not get any help from any institutions on the grounds that he had money to pay back debts.

18. He has been threatened several times and humiliated in front of his workplace.  They also took things from his home that could be sold for money and threw things at him to scare him or break them.  They also threatened to bury him alive in the mountains if he moved to another place or hid.  One day he was followed to the subway, dragged into a toilet, shown advertisements to recruit people who wanted to sell their body organs and threatened to sell his organs in order to pay the money.

19. If he returns to Korea they will continue to chase him and take away all his things.  They will think he has made a lot of money because they know he went overseas.  He will not be able to cope with the pain of continual observation and extortion.

20. He has heard from his friends that they are still after him and he is sure they will come to see him as soon as he steps on Korean soil.  There is no way he can hide from them in Korea.  They will find out where he is from informers.  They will use violence, take away his money and sell his organs.

21. The Korean authority concerned is not interested in individual petitions for protection for they are obsessed with the security of the pro-right wing regime that came to power through an illegal election campaign.

    Review application

22. The primary applicant was invited to attend an interview with the Department of Immigration and Border Protection [in] October 2014.  [In] February 2015 the Delegate refused to grant the visa.

23. The applicants lodged an application for review with the Tribunal [in] February 2015.  The applicants did not provide any supplementary information with the review application.

24. By letter dated 26 May 2016 the Tribunal wrote to the applicants, via the nominated representative, advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone.  The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 28 June 2016 at 10.00am ([Australian State] time).  The applicants were advised that if they did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on their case without further notice.  The applicants did not reply to the invitation.

25. The applicants did not appear before the Tribunal on the day and at the time and place at which they had been scheduled to appear, nor did they contact the Tribunal about their failure to attend.   The Tribunal is satisfied the applicants were properly notified in the manner indicated on their application for review. In these circumstances, pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review, without taking any further action to enable the applicants to appear before it.

    FINDINGS AND REASONS

26. Attached to the Department file are photocopies of the applicants Republic of Korea passports.  In the absence of any evidence to the contrary the Tribunal accepts the applicants are nationals of the Republic of Korea and has assessed their claims against that country.

27. The Delegate was satisfied on the information before her that the applicants are de facto partners.  Based on the same information, the Tribunal is also prepared to accept that the second named applicant is the de facto spouse of the primary applicant and therefore meets the definition of a member of the same family unit.

28. The mere fact that an applicant claims to fear harm for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason/s claimed.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[1]  Although the concept of onus of proof is inappropriate to administrative inquiries and decision-making[2], the relevant facts of the individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the Tribunal to establish the relevant facts.  The Tribunal is not required to make an applicant’s case for them[3], nor is it required to accept uncritically any and all of the allegations made by an applicant[4].  The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, it is satisfied it is also materially applicable to the assessment of complementary protection claims.

    [1] MIEA v Guo & Anor (1997) 191 CLR 559 AT 596

    [2] Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288

    [3] Prasad v MIEA (1985) 6 FCR 155; Luu & Anor v Renevier (1989) 91 ALR 39 at 45

    [4] Randhawa v MILGEA (1994) 52 FCR 437 at 451

29. The Tribunal notes the Delegate found the primary applicant to be generally credible and accepted that his father owes a substantial amount of money to lenders who are now pursuing him for that money to be repaid.  Further the Delegate accepted the primary applicant was harassed and intimidated at his school and workplace, physically assaulted and threatened with being buried alive and having his organs harvested to sell.

30. Despite the Delegate’s findings the Tribunal considers certain of the primary applicant’s claims are substantially lacking in detail and unexplained.  For instance, he did not, in the Tribunal’s view adequately explain why the debt collectors pursued a school aged child, with no regular income, to make loan repayments on behalf of his father.  Further, he did not explain why he was unable or unwilling to seek assistance from his superiors in the Korean army and/or the police when harassed, threatened and intimidated into making payments by the lenders at his school and place of work.  Nor has he provided detailed information about how he knows the lenders are still looking for him or will continually observe and harass him, when they last enquired about him and how they would immediately learn of his whereabouts if he returns to Korea despite them being unable to locate his father, the person with utmost responsibility for the debt.

31. While the Tribunal accepts, based on information[5] before it, that illegal money lenders in Korea can and reportedly do inflict or threaten various degrees of harm on borrowers who are unable to make repayments or who default on loans, it also notes the following:

    [5] DIBP, Standard Q&A, South Korea:  KOR43022 – Loan Sharks – State Protection, 10 February 2014

32. Generally speaking country information[6] indicates that South Korea has the institutions and capacity to effectively protect its citizens.  South Korea performs well internationally in terms of rule of law, security and effective criminal justice.

    [6] The US Department of State 2013, Country Reports on Human Rights Practices for 2012 – Republic of Korea; The World Justice Project 2010, Rule of Law Index 2010

33. Unlawful debt collection methods are spelled out in the 2002 Moneylending Registration Act, and include that 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.[7]

    [7] Canada: Immigration and Refugee Board of Canada (IRB) 2007, Nature and extent of loan-sharking; protection available for victims of loan sharks CISNET CX314171

34. Further there is independent information before the Tribunal which indicates that the South Korean authorities have taken steps to attempt to protect victims of money lenders, and to increase the level of regulation of the financial sector in recent years.  For example:

35. The Washington Post reported in February 2014 that the government launched a task force to deal with loan sharks, who sometimes visit borrowers at night and threaten them with assault.[8]

    [8] Harlan, C 2014, ‘South Korea tries to curb household debt and avert a crisis, Washington Post, 24 February

36. In September 2013 the Korea Times reported that financial authorities were moving to crack down on moneylenders who charge unreasonably high interest rates and engage in illegal debt collecting practices.[9]

    [9] DIBP, Standard Q&A, South Korea:  KOR43022 – loan sharks – state protection, 10 February 2014

37. In December 2012 the Korea Times reported that over 10,000 loan sharks were caught in an 8 month intensive crackdown on illegal private lending practices resulting in 290 having criminal charges brought against them.  In addition, the government reportedly stated that it had extended support for victims such as long term loans and legal counselling.[10]

    [10] ‘Over 10,000 loan sharks nabbed in 8 months’ 2012, The Korea Times,

38. In April 2012 the Korea Herald reported that a call centre established to assist victims of loan sharks received over 5,600 complaints in the three days it opened.  Of these complaints, over 5,100 were handed to the Financial Supervisory Service, with the remaining reports passed to police and local officials.[11]

    [11] Rahn, K 2013, ‘Regulators to probe loan sharks’, The Korea Times, 8 September

39. The Herald further reported that under the law on interest limits, unregistered lenders that charge an annual interest of more than 30 per cent are subject to imprisonment of up to a year or fines of up to 10 million won.[12]

    [12] ‘Loan shark crackdown gets massive response’, 2012, the Korea Herald, 22 April

40. According to information cited by the Immigration and Refugee Board of Canada in 2011 Korean authorities were attempting to provide assistance to those subject to threats or harm from loan sharks.  Measures included a ban on money-lenders seizing and cancelling the insurance policies of debt defaulters in order to recoup funds, and a crackdown on loan sharks.

41. Without more evidence from the applicant than the evidence presently before it, the Tribunal cannot be satisfied about why the primary applicant left the Republic of Korea and whether he cannot or will not return to the Republic of Korea for the reasons claimed.  If he had attended the hearing, the Tribunal would have had the opportunity to discuss his claims with him in more detail and test their veracity.  The Tribunal would have used the opportunity of the hearing to discuss these issues with the primary applicant and given him the opportunity to explain the particular details of what he fears would happen if he returns to the Republic of Korea now or in the reasonably foreseeable future and the reasons why it would happen.  However, it was not possible to discuss any of these issues with him because, despite being advised by the Tribunal in its letter dated 26 May 2016 that it had considered all the material before it but was unable to make a favourable decision on that information alone, he did not attend a hearing and provided no further information or evidence in support of his claims.  The Tribunal has insufficient evidence to be satisfied that the events and circumstances he raised are factual and on the evidence before it, does not accept his claims.

42. On the evidence before it, and based on his claims, the Tribunal is not prepared to accept the primary applicant’s father was indebted to money lenders, that the primary applicant was pursued by lenders seeking to recover the debts of his father or that he was harassed, intimidated into making payments on his father’s behalf, threatened with being buried alive or having his organs harvested for sale or physically assaulted.  It follows that the Tribunal is also not prepared to accept that money lenders will know he has been overseas and therefore think he has made lots of money or that they will continually chase him or observe his movements or take away his things and threaten or harm him if he returns to the Republic of Korea. 

43. Even if the Tribunal is wrong, and the applicant is pursued by money lenders seeking to recoup his father’s debts on his return to the Republic of Korea, on the basis of the country information cited above, the Tribunal is satisfied the applicant could obtain protection from the police and/or other authorities such that there is not a real chance or risk of him being seriously or significantly harmed. 

44. For these reasons, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for a Convention reason if he returns to the Republic of Korea.  Accordingly, the Tribunal is not satisfied that the primary applicant has a well-founded fear of persecution.  Therefore he does not satisfy the requirements of s.36(2)(a) of the Act.

45. The Tribunal has also considered the alternative criterion in s.36(2)(aa) of the Act.  On the same evidence, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the primary applicant being removed from Australia to the Republic of Korea, there is a real risk that he would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment.  Therefore he does not satisfy the requirements of s.36(2)(aa) of the Act.

1. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c) of the Act.  As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

   DECISION

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

   Tania Flood
   Member