1509735 (Refugee)

1509735 (Refugee) [2017] AATA 1672 (15 September 2017)
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DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1509735
COUNTRY OF REFERENCE:                  Korea, Republic Of
MEMBER:Christine Cody
DATE:15 September 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 September 2017 at 5:32pm

CATCHWORDS
Refugee – Protection visa – South Korea – Social group – Victim of domestic violence – Divorced woman – Credibility issues – Unlawful stay
LEGISLATION
Migration Act 1958, ss 5AAA, 5H-LA, 36, 65, 417, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] July 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant was represented in relation to the review by her registered migration [agent].
The applicant who claims to be a citizen of the Republic of Korea (hereafter referred to as “South Korea”), applied for the visa [in] June 2014. In her original protection visa application she claimed to fear harm from all aspects of society and on the basis of financial matters, and past domestic violence. In her application to the Department, she has also acknowledged that she has received advice from her agent that the application has no prospect of success, and that the purpose of making the application was to proceed to Ministerial Intervention through s.417 of the Act.
The delegate invited the applicant to attend an interview [in] July 2015. [In] July 2015 the agent advised the Departmental case officer that the applicant was agreeable to the Department to determine her application on her written claims and declined the opportunity to attend an interview. The delegate thus considered the claims on the written materials. The delegate was unable to make a finding in respect of credibility as the applicant had declined the opportunity to attend a protection visa interview. The delegate was not satisfied that the applicant was a refugee. Concerning complementary protection, the delegate considered there was the requisite state protection in relation to domestic violence issues, and that the country situation meant that the applicant did not face a real risk of significant harm.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant faces a well-founded fear of persecution or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Department
The Departmental file
The Departmental file contains documents including the protection visa application forms for the applicant[1], a copy of identity page of the applicant’s passports, and supporting documents and the delegate’s decision record. There was no interview held with the applicant. It also included movement records which appear to be incorrect, showing that the applicant had made another trip to Australia and then departed; the Tribunal puts no weight on this. There are no non-disclosure certificates on the file.
[1] The applicant had previously lodged a protection visa application [in] May 2014, which was found to be invalid [in] June 2014, as set out in the delegate’s decision record provided to the Tribunal.
Background and claims
According to the applicant’s protection visa application forms, she was born in Seoul, South Korea, in [year] and is now aged [age] years. She speaks, reads and writes in Korean. Her religion is [Christian]. She attended middle school and secondary school in Seoul until [year]. Thereafter, from May 1986 until November 1990, she worked as [an Occupation 1] for an [company]. She did not provide details of any work between 1990 and 1999.
Her passport had been issued [in] 1987 and was valid until [2002]. Her current passport was obtained [in] 2012; it expires [in] July 2022.
She left South Korea [in] November 1999, and travelled to Australia [in] November 1999. She left South Korea because of the dire financial circumstances of the family. In 1997, South Korea had become bankrupt and had to borrow money from the IMF and almost every household suffered from the financial crisis. Unemployment rocketed to a high level. She experienced extreme financial and emotional hardship because of the IMF crisis and she was discriminated against because of her lack of education.
Her Australian visa expired [in] November 2000. She thereafter remained unlawfully present in Australia for over 13 years.
The applicant gave no details of any work undertaken in Australia.
The applicant’s mother, who is widowed, resides in Australia.
She referred to her relationship with her former partner. They met in Australia in 2007. She did all the cooking and washing and lived in a de facto relationship with him. There were finally married [in] May 2012 however he never lodged a partner visa application, even after seven years of a de facto relationship. His violent behaviour got worse and then he asked her to leave the house. She separated [in] May 2014 in Sydney.
The applicant’s [married] brothers reside in South Korea. The applicant talks to her brothers once every month.
She has now built up distrust of all men and she is fearful of them whoever they are and so she is fearful of going back to South Korea with her current psychological mindset.
When asked who she feared would harm or mistreat her if she returns, she said Korean society is so corrupt she cannot single out any one group; she will be mistreated by her neighbours, people in general, local government employees, and she will be discriminated against by the Korean legal system in general.
South Korea does not have a fair and reasonable welfare system and because she has lived in Australia for 15 years she will have extreme difficulty in adjusting or assimilating back into Korean Society. She will have extreme difficulty finding work due to high unemployment rate, lack of qualifications. She will be discriminated against because of her history on marriage failure in Australia, having been an abused and divorced woman, and her lack of financial wealth and education. It is difficult to prove this because South Korea is said to be very rich country without or with very minimal or social problems however the truth is different because you are considered to be a nobody if you don’t have wealth, education, or somebody who has an abusive past. South Korea is corrupt. It doesn’t protect the rights of citizens and police don’t have the right to break into a house if there is domestic violence and lots of incidents are being ignored. She can provide a DVD about this (however neither the applicant nor the agent subsequently provided this).
She cannot get assistance from the authorities because her emotional state or dire financial hardship is something that cannot be helped by the authorities. She will be dealing with corrupt personnel who will think that she is the victim of her own wrongdoing they will not have any sympathetic view of her personal circumstances.
Invalid protection visa application claims: The Tribunal notes that in her first protection visa application (invalid) she also claimed that she had experienced economic hardship and emotional hardship in South Korea; if she returns, she will be unable to settle back into the country after such a long absence; she fears economic and financial hardship. She has no social connections in Korea, limited education, and she is single.
A statutory declaration was provided by [her friend] sworn [in] June 2014. He is her friend; he has known the applicant since she arrived at their church almost 15 years ago. They were in the same group as her mother and have been in close relationship. She always struggled that she overstayed her visa. She brought her husband to church but he had heard rumours that he was not a nice man who had other women. They had a de facto relationship for almost 5 years before he asked to marry him, but he still did not apply for a permanent resident visa. Whenever she mentioned it, he threatened to kick around and even bashed her. Through her abuse from him she has developed anxiety and minor psychological problems, she has developed fears generally especially of men and she will have problems if she goes back to Korea. He believes Australia owes protection to her because she will suffer greatly from a psychological condition which she developed from an Australian citizen man. Although South Korea is a very developed and great nation, it is a very secular country with people having a narrow view and has a lot of corruption in politics, with public servants of the justice system. He is glad that she left him because he will never apply for a permanent resident visa for her but instead continued to abuse her and her mother to live with them. Many people in the church have witnessed her bruised face. She will struggle greatly if she is forced to return to South Korea; she will be discriminated against as part of the inferior group of divorced and abused women and will face discrimination from all sectors of Korean society.
The Tribunal file
The applicant provided the delegate’s notification of refusal of the visa application, and the decision record, to the Tribunal with her application for review.
The Tribunal was not satisfied on the evidence before it that it was able to make a positive decision in favour of the applicant. She was invited to attend a hearing before the Tribunal on 25 July 2017. The Tribunal requested, in that hearing invitation, that that a submission should be provided accompanied by a signed declaration of the applicant confirming that it accurately and completely presents her claims, prior to the hearing; this was not done.
After the Tribunal drew to the attention of the applicant the definition of refugee and complementary protection, she said that she does not think she meets the criteria of refugee or complementary protection. The Tribunal however discussed her claims with her at hearing.
She said she has no assets and no money back in Korea; she then said however that the same applies in Australia, she has no money and no assets. She wants to remain in Australia and continue to work as [an Occupation 2]. In South Korea, the cost of labour is cheaper. The Tribunal put to her that if salaries are lower in South Korea, then perhaps the cost of living is also lower. She disagreed, however when the Tribunal asked where her knowledge of the cost of living came from, she said she didn’t know.
Her brothers are both [working], involved in [a certain industry]. They rent their homes in Seoul. The Tribunal put to the applicant that she too could rent a home in Seoul; she responded that she used to rent a home in Seoul.
She has been living in Australia for a long time and has been working as [an Occupation 2] and this is a good place to live. She said that the temperature is warmer here than in South Korea and that she hates the cold. She likes Australia and has a comfortable life here. The Tribunal noted that these matters did not appear to meet the threshold of real chance of serious harm or real risk of significant harm and she said either no comment, or she agreed.
She told the Tribunal that she had no relationships in South Korea, and no other relationships apart from this one relationship with the man who became her [husband], which started in September 2007 and finished in 2015. She thinks he has delusional jealousy syndrome. However, she told the Tribunal that she did not see him from 2015 until 2017 as her mother is very angry with him and does not want her to see him. They divorced four to five months ago.
The Tribunal asked her about the abuse she suffered in the relationship; she said that he sometimes slapped her on the face when they had arguments. The Tribunal put to the applicant that it appears that she had one relationship with unacceptable behaviour; this does not mean that if she did return to South Korea, and had a relationship, she would again experience such behaviour. In response, she said that she is not interested in having relationships, as she is getting close to [age], and instead of investing in relationships, she thinks that living alone looks better.
FINDINGS AND REASONS
Country of reference
The applicant claims to be a citizen of South Korea. She produced her passport issued by the authorities of South Korea. The Tribunal accepts that the appropriate country of reference for the assessment of her refugee claims, and the receiving country for the purposes of her complementary protection claims, is South Korea.
Credibility
The mere fact that a person claims fear of persecution 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 claimed. Similarly that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).
Having considered the relevant evidence, the Tribunal has concerns about the veracity of her claims, her significant and long-term delay in seeking protection, and her claimed reasons for fears upon return to South Korea.
Changing evidence between application form, supporting statutory declaration, and evidence at hearing
The Tribunal had concerns about inconsistent evidence provided throughout the proceedings, as set out below.
The breakdown of the relationship: The Tribunal was concerned with inconsistent evidence concerning the reason why the relationship broke down. The applicant was given the opportunity to discuss at hearing the end of the relationship with her husband, and she did not tell the Tribunal that it was because of his violence. Instead, she claimed that her husband told her to leave his house because he has another woman (of [another] ethnicity) and if she does not leave, he will call the police. She had no choice but to leave. He had previously told her to choose between himself and her mother, because he did not like her mother.
This was also inconsistent with the statutory declaration of her friend that she submitted. In that, it was claimed that her husband asked the applicant to sign a financial agreement promising not to claim anything from the property if they divorce, and he promised that in return for signing the financial agreement, he would sponsor her for a permanent resident visa. However, the applicant decided, as a result of these years of being abused and being enslaved by him, that she would not sign the financial agreement as she made the difficult decision to leave him.
The applicant did not explain why her friend claimed that she left her husband, whereas she claimed that her husband made her leave (threatening to call the police against her). She also did not explain why, when asked to talk about the relationship break down, she had not mentioned her husband’s claimed violence. She then said that all of the reasons are true. The Tribunal has considered this but does not find it persuasive; it considers that that if she had spent years “abused and enslaved” by her husband, she would have mentioned this when asked by the Tribunal. The Tribunal considers that this undermines her claims and credibility. Further, as noted above, she told the Tribunal that her husband’s violence was slapping her a few times while having arguments, which is inconsistent with the written claims of violence.

The Tribunal had a further concern with a claim made in relation to her marriage; it notes that in her written materials, it was claimed that he was deceitful because he had past marriages. However, when the Tribunal asked the applicant about this at hearing, she said that he had past relationships which she did not know about when she first met him, but before she agreed to marry him, she was aware of these.
Her psychological condition: Although her application form claimed that she feared returning to South Korea with her current psychological mindset, and her friend’s statutory declaration also alleged that she had psychological conditions of anxiety and minor psychological problems, it was her evidence to the Tribunal that either during or after the relationship, she has not seen a doctor or counsellor, and she has no concerns about her mental health. She does not have any psychological conditions, and other people agree that she does not have any psychological conditions. She did not explain why the written materials said otherwise. The Tribunal considers that this undermines the written claims in this regard.
Whether she would face harm in South Korea, the need for state protection: Although the applicant had indicated in her protection visa application form that she faced harm from a number of sources, and that the authorities were corrupt, and she would not be able to obtain assistance from them, when the Tribunal asked the applicant whether she would have any need to approach the police, or whether she would be able to obtain assistance from the police, she said she does not think she would need any assistance from the police or the authorities in South Korea for any reason. She did not think there is any reason that she would face harm in South Korea and no one would hurt her. When the Tribunal asked whether she thought she would be a victim for any reason, she said no. The Tribunal considers that this undermines her claims that she faces a real chance of serious harm or a real risk of significant harm for any reason.
Discrimination: She told the Tribunal that she would suffer discrimination if she returned because she is divorced and single and she did not have any husband or savings or children. However, when the Tribunal asked who would discriminate against her, she said her siblings and her nephew. The Tribunal noted her evidence that she was in contact with her siblings, and she said they ask her things like “how did you marry that person, there are so many people out there, why did you get married to that person?” The Tribunal asked what else do they say, and she said nothing. The Tribunal put to her that it just sounds like they are concerned for her, because she married someone who was not a good partner; but it did not sound like she was being discriminated against. When the Tribunal asked whether or not anyone else would discriminate against her, she said no. The Tribunal considers that this undermines her claim that she faces discrimination in South Korea; it also undermines the assertion of her friend in her statutory declaration that she faces discrimination from all sectors of society
Delay in claiming protection, and failing to return to South Korea earlier
The Tribunal was concerned with the applicant’s delay in claiming protection. It was her evidence that she arrived in Australia in 1999, holding a [temporary] visa, which expired in 2000. She was aware that she then became unlawfully present, and did not lodge a protection visa application until 2014. Further, noting her claim that she came to Australia because of the financial crisis in South Korea, the Tribunal was concerned that she was unable to explain why she did not return to South Korea when the financial situation started to get better. When it asked her why she overstayed her visa instead of going back to South Korea when the situation improved, she responded that she did not know about this, she did not pay much attention to South Korea and she was thinking about how to make ends meet. She wanted to apply for a student visa but that was too expensive. She then added that also she was not confident that she could have completed the study.
The Tribunal put to the applicant its concern that she seemed prepared to remain in Australia unlawfully, in breach of immigration laws, when she no longer had a reason to stay, and because she wanted to stay and earn money. She responded that one day she prayed to God and asked which is more important, the lawful immigration situation or money, and the answer to her prayer was that money was more important, because she can live without a visa but she can’t live without money. The Tribunal put to her that if she had genuine concerns about returning, it would think that she would have got immigration advice and lodged a visa application earlier. In response, she said that she was ignorant about this. The Tribunal is not prepared to accept this explanation, and it put to the applicant that she attended church where she could have asked people for advice. Only after this was put to the applicant, did she claim that she received advice from her church minister’s wife that there were sometimes amnesties, and if she waited long enough she would get one. When asked by the Tribunal, she said she had no idea how long she would have to stay unlawfully to obtain an amnesty. The Tribunal considers that if she had received such advice from the church minister’s wife, she would have told the Tribunal when it first put to her its concerns about her remaining unlawfully in Australia and her failure to obtain advice. The Tribunal is concerned that she only suggested she received advice from the church when the Tribunal made that suggestion to her. The Tribunal is not prepared to accept her assertion that she received advice from the church minister’s wife.
The applicant arrived in Australia holding a [temporary] visa in 1999. She claimed it was valid until 2000. She then remained, unlawfully present, until 2014. She was working and supporting herself the whole time. As set out her protection visa application, she was able to change addresses on numerous occasions in Australia throughout this time. The Tribunal considers that if she had any genuine concerns about returning to South Korea, she could have sought immigration advice at any time between 1999 and 2014. The Tribunal considers that the above, including her significant delay of 14 years in lodging a protection visa application once her [temporary] visa had expired, and her willingness to remain in Australia in breach of immigration laws, undermines her credibility and her claims.
Other matters
The Tribunal put to the applicant that it would have to consider the weight it could give to the statutory declaration, noting that there were inconsistencies between her evidence and the statutory declaration concerning why the relationship ended, and also noting that her friend asserted that she had a psychological condition, without having any apparent qualification to make such an assertion (and contrary to the applicant’s evidence to the Tribunal that she does not have a psychological condition and other people also believe that she does not have a psychological condition). The applicant said she understood. In the circumstances, having regard to the Tribunal’s concerns, it is not prepared to place weight on the statutory declaration.
The Tribunal is also not satisfied on the evidence before it that the applicant had any mental health issue relevant to her manner of giving evidence or her future situation.
The applicant had claimed that she had limited education (middle school and secondary school). However, she claimed to have worked as [an Occupation 1] in South Korea for nine years, and to have wanted to obtain a student visa in Australia when she first arrived. The Tribunal has had the opportunity to engage with the applicant at hearing, and considers that she is able to express herself and understand situations; it does not accept that she has a lack of education leading to an inability to engage generally, or specifically engage in the hearing, nor which can explain the difficulties with her evidence. The Tribunal is not prepared to place weight on her assertion of a lack of education. Further, it does not accept that her level of education has adversely affected her past work in South Korea, nor that there is reason to consider that it will affect her adversely in the future.
Credibility of claims summary
Considered cumulatively, the Tribunal considers that the available evidence indicates that the applicant’s claimed fears of past and future harm, upon which she has based her protection claims, are not true.
Findings on the applicant’s claims
The applicant’s reasons for coming to Australia: The Tribunal is not prepared to accept her claims of past emotional and financial harm in South Korea. The applicant had declared work only up until 1990; she had not given indication of what she did until 1999, and how she managed to afford to travel to Australia. When asked, she told the Tribunal that she had a business between 1990 and 1999 in South Korea [with] her mother. When there was an economic crisis, she was given work from a local council, which allowed her to save the money for a plane ticket to Australia. As the Tribunal put to the applicant, she was resourceful enough in these times to be able to obtain work in South Korea, and to save; and to come to Australia. The Tribunal does not accept that the applicant suffered serious or significant harm in the past in South Korea; it also does not accept her claim that she faced discrimination because of a lack of education.
Return to South Korea: The applicant told the Tribunal at the end of the hearing that she had nothing further to say other than she would like to live in Australia. The Tribunal put to the applicant that she has family connections in South Korea, which would assist her in re-establishing her life there. The Tribunal put to the applicant that it was not aware of country information indicating that a person in her situation, namely someone who is single, has family, some education and work experience, faces a real chance of serious harm or a real risk of significant harm. The applicant did not seek to comment.
The applicant’s financial claims and South Korea’s welfare system, and her “comfortable life” in Australia: When asked, she told the Tribunal that she has been working as [an Occupation 2], and has supported herself the whole time she has been in Australia (1999-2017). The Tribunal put to the applicant that she appeared to be very resourceful; she had managed to survive in a foreign country for many years, where she didn’t even have the right to work, and noting that she could only speak a language a little bit. The Tribunal put to the applicant that it would seem that she could return to her country, where she grew up and where she knows the language and has relatives, and that she should be able to find work, noting that the adjusted unemployment rate for June 2017 was 3.8%[2].
[2] accessed 25 July 2017
The applicant had claimed in her application form that Korea’s welfare system was disadvantageous for her. However, when giving evidence to the Tribunal, she appeared not to know anything about the welfare system, and when the Tribunal was putting to her country information sourced from the delegate’s decision record which she had provided to the Tribunal, she indicated she was not aware whether or not there was a decent welfare system in Korea. The Tribunal considers that her lack of knowledge about the welfare system in South Korea undermines her claim that it is not fair and reasonable.
The country information in the delegate’s decision record referred to various aspects of the welfare system, including the introduction of active labour market programs (providing a range of work focused support), income support to workers during periods of unemployment, promotion of employment opportunities through job-training and human resources development programs. Unemployment benefits comprise a job-seeking allowance and employment promotion benefits[3].
[3] Delegates decision record, page 13. Citing Information Note: Poverty Combating Strategy in South Korea", Legislative Council of the Hong Kong special administrative region of the People's Republic of China: research and library services division, 1 November 2013, CAS 26514
The Tribunal put to the applicant that she was the type of person who, during a financial crisis in her country, was able to organise herself to be selected to be given work, and was able to save sufficient funds in order to travel to Australia. It said that if she had difficulties in finding work, there would be pensions to assist her. In response she said the pay is small for a worker back in South Korea and she cannot work for Korean persons as [an Occupation 2]. The Tribunal put to her that she could do other jobs. She said if she can do other jobs, maybe she will do so, but she would like to work as [an Occupation 2] in Australia. The Tribunal is not prepared, the evidence before it, to accept the applicant’s assertions that the cost of living/ her future financial situation in South Korea is such that she would face a real chance of serious harm or risk of significant harm for financial/economic reasons if she returned to South Korea.
The applicant claimed that it will be difficult to make ends meet because she is a female living alone. As noted below, the Tribunal considers that she will have the support of her brothers. In any event, as noted above, she told the Tribunal that she used to rent a property, and her brothers are currently renting properties. The Tribunal does not have any credible evidence before it suggesting that she would not be able to rent a property in South Korea. The Tribunal notes that the applicant says that she wants a “comfortable life” in Australia; it does not accept that this means that she faces a real chance of serious harm or a real risk of significant harm in South Korea.
Concerning her status as a female/single/divorcee: The Departmental file contained documents including billing correspondence from 2009 and 2012 showing that the applicant lived with [her husband]. While the Tribunal accepts that the applicant was in a de facto relationship, and then married to [her husband], it finds that they are no longer in a relationship and they do not have any contact. It was not claimed that he seeks to harm her now or in the future and the Tribunal so finds.
It was the applicant’s evidence that she had only had one relationship in her life, in Australia from 2007 until 2015, and that she did not intend to have any other relationship in the future. The Tribunal noted that according to the USDOS Report 2016 Human Rights Report, there is evidence of a gender pay gap, and there is some sexual violence, as well as domestic violence, and that the government is taking steps to assist women[4]. The Tribunal put to the applicant however that it did not appear on the evidence before it that in her particular circumstances she faces a real chance of serious harm or real risk of significant harm (including discrimination) as a female/single/divorcee. She said that she did not seek to comment. The Tribunal is not satisfied on the evidence before it that this applicant faces a real chance of serious harm or real risk of significant harm as a woman either at work, or in society, or in relationships or due to her past or future relationship status.
[4] >
Difficult to adjust/psychological situation: Concerning her claim that she would find it difficult to adjust to South Korea, the Tribunal noted that it was her evidence that, in Australia, she could barely speak English; she spent her time with her mother, and at a Korean-speaking church and teaching the Bible in Korean. The Tribunal put to her that it would seem that on the basis of her evidence of her activities in Australia, she remains involved with Korean people, which would suggest that she could adjust to being back in Korea with Korean people. In response the applicant said she can deal with church involvement. While the Tribunal accepts that she has been in Australia for many years, it does not consider on the evidence before it that her adjustment back to living in South Korea will amount to real chance of serious harm or risk of significant harm.
Cold weather: The applicant also said that she does not like cold weather. When this was discussed she initially referred to an illness; however she then said it was not an illness, but she just hates the cold. The Tribunal does not consider this to be a claim that she faces a real chance of serious harm or a real risk of significant harm because of the weather. Even if it was a claim, there is no evidence before it to support a finding that the applicant faces a real chance of serious harm or a real risk of significant harm because of the weather in South Korea.
North Korea: At the hearing the applicant said that she was concerned about a risk of future war between North Korea and South Korea, however she then told the Tribunal that she does not fear harm because of this, although this makes her nervous. The Tribunal noted that it would have to consider whether such conflict may occur and if so, whether she faced a real chance of serious harm or risk of significant harm on that basis, and the circumstances did not appear to amount to this. She said she did not want to comment. The Tribunal also noted that situations of general violence are not normally covered by the criteria for a protection visa and she said she understands.
The applicant did not provide any country information in relation to this matter. She did not claim to the Tribunal that she believed that if she returned, she faced a real chance of serious harm or risk of significant harm for this reason. Concerning her claim to be a refugee, as noted above, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and there is a real chance (not remote or insubstantial or a far-fetched possibility) that she would be persecuted. Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct. While the Tribunal accepts that the situation between North Korea and South Korea is tense, it is not satisfied that the applicant faces a real chance of serious harm in South Korea as a result of those tensions. Concerning complementary protection, significant harm includes being arbitrarily deprived of 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 Tribunal is not satisfied on the evidence before it that this applicant faces a real risk of significant harm in South Korea because of the tensions between North Korea and South Korea. Further, as put, the Tribunal notes that 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, including where the real risk is one faced by the population of the country generally and is not faced by the applicant personally. The Tribunal is not satisfied on the evidence before it that if there was such a real risk (which it does not accept), that such risk is faced by the applicant personally, as opposed to the population of the country generally.
Corruption: although her written claims referred to corruption, she did not tell the Tribunal that corruption would lead to her facing serious or significant harm. The Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of serious harm or real risk of significant harm for reason of corruption.

The Tribunal is not satisfied that in the applicant’s particular circumstances, she faces a real chance of serious harm from any organisation, person or member of society or being subjected to discrimination, violence, crime, corruption or harm for any reason. The Tribunal is not satisfied on the evidence before it that this applicant faces a real chance or real risk of requiring access to state protection.
The Tribunal is not satisfied on the evidence before it that there is any reason for considering that the applicant faces a real chance of serious harm.
The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past or future harm feared, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that she does not have a well-founded fear of persecution for any of the reasons put forward by her.
The Tribunal does not accept that there is any credible evidence to support that the applicant faces a real chance of persecution in South Korea. 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 s.36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
The Tribunal has accepted that the applicant is [an age] year-old female from South Korea, who has work experience in both South Korea and Australia, has worked in Australia sufficient to support herself, including while unlawfully present for over 13 years. For the reasons discussed above, the Tribunal is not satisfied as to the majority of her claims. The Tribunal does not accept that the applicant experienced past serious or significant harm. The Tribunal considers that she is a resourceful person who has managed to survive in a foreign country and work while unlawful. She has relatives in Australia, but she also has relatives in South Korea. The Tribunal considers that she will return to live in her home area where she has family members and work again in her home country. It also considers that she will receive support from her relatives (in Australia or South Korea) if need be. While it accepts that she may find it difficult to adjust, it does not consider that this will amount to a real risk of significant harm. The Tribunal is not satisfied that in the applicant’s particular circumstances, she faces a real risk of significant harm from any authority or being targeted or subjected to corruption, crime, discrimination or persecution or any other harm because for any reason, including general violence or tensions with North Korea.
The Tribunal is not satisfied that there is a real risk that she will face a real risk of adverse attention amounting to significant harm, from anyone, for any reason.
On the evidence before it, and for the reasons discussed above, and having considered the claims singularly and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, namely South Korea, that there is a real risk she will suffer significant harm. Accordingly, the Tribunal finds that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.
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).
Ministerial Intervention: Neither the applicant nor her agent made a request at hearing that the Tribunal refer the case for Ministerial Intervention. In the circumstances the Tribunal does not consider it to be appropriate. The Tribunal notes that there is nothing preventing the applicant making her own application to the Minister.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 1672

15 September 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction