1511665 (Refugee)

[2018] AATA 4754

1511665 (Refugee) [2018] AATA 4754 (28 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511665

COUNTRY OF REFERENCE:                  Korea, Republic Of

MEMBER:Linda Symons

DATE:28 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 28 September 2018 at 2:50pm

CATCHWORDS
REFUGEE – protection visa – South Korea – particular social group – student unable to adjust to school in South Korea – mistreatment and abuse at school by classmates and teacher – catering to educational needs – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 65, 351, 499
Migration Regulations 1994, Schedule 2

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 and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant, who claims to be a citizen of the Republic of Korea (South Korea), first arrived in Australia [in] July 2003 as the holder of a [temporary] visa. He departed Australia [in] July 2003. He returned to Australia [in] September 2010 with the second, third, fourth, fifth and sixth named applicants who also claim to be citizens of South Korea. The third named applicant is his wife and the second, fourth, fifth and sixth named applicants are their children.  

3. The applicants travelled to Australia [in] September 2010 as the holders of [temporary] visas that were valid until [December] 2010. They applied for further [temporary] visas and were granted [these] visas on 9 February 2011 that were valid until 8 March 2011. They applied for further [temporary] visas and were granted [these] visas on 17 March 2011 that were valid until 17 June 2011. They departed Australia [in] June 2011.

4. The applicants returned to Australia [later in] June 2011 as holders of [temporary] visas that were valid until [September] 2011. On 26 September 2011, the first named applicant applied to the Department of Home Affairs (the Department) for a [different temporary visa] and included the other applicants in his visa application. On 18 September 2012, he withdrew that visa application.

5. On 3 August 2012, the third named applicant applied for a [Student] visa and included the other applicants in her visa application. On 14 September 2012, the Department refused her visa application on the basis that, at the time of application, she did not hold a substantive visa and had not made the visa application within 28 days of her last substantive visa ceasing. On 20 September 2012, she applied to the Migration Review Tribunal (MRT) (as it was then called) for a review of that decision. On 25 June 2013, the MRT affirmed the decision made by the Department. [In] July 2013, she made an application to the Federal Circuit Court for a judicial review of that decision. [In] October 2013, the Federal Circuit Court dismissed the application.  

6. On 6 November 2013, the third named applicant made a request for Ministerial intervention pursuant to s.351 of the Act and included the other applicants in her request. On 17 March 2014, her request was declined.

7. On 10 April 2014, the first named applicant applied for a Protection visa and included the other applicants in his application as members of the same family unit. On 11 April 2014, the Department found that his application was not a valid application as it was made on the incorrect form and did not specify any claims for protection. On 2 May 2014, he lodged another application for a Protection visa and included the other applicants in his application as members of the same family unit. On 6 May 2014, the Department found that his application was not a valid application as it was made on the incorrect form and did not specify any claims for protection.

8. On 14 May 2014, the applicants applied to the Department for the third time for Protection visas and the delegate refused to grant the visas on 29 July 2015. On 26 August 2018, they applied to the Tribunal for a review of that decision.

9. The first and third named applicants appeared before the Tribunal on 24 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

10. The applicants were represented in relation to the review.

11. The issues that arise on review are whether the applicants are owed Australia’s protection under the Refugee Convention or under the complementary protection criterion.  

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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.

13. 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).

14. 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.

15. 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’).

16. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.

    First named applicant’s claims

17. In his application for Protection visas the first named applicant made the following claims:

    ·The second named applicant attended a public school and was abused by her classmates and teacher. As a result she was taken out of school and given treatment. She was diagnosed with depression.

    ·The first time they came to Australia was because they had family here. The second named applicant and her siblings started attending school in Australia. The school, [School 1], gave special consideration to the second named applicant and tailored a program to suit her. She started brightening up and developing friendships. 

    ·Because of this they tried to obtain visas to live in Australia lawfully but were not successful. They considered returning to South Korea but there is no school that the second named applicant can attend in South Korea. She does not have a learning difficulty and the schools in South Korea cannot cater to her needs.

    ·If he returns to South Korea, the South Korean education system and her follow classmates will mistreat the second named applicant. There are South Korean exchange students in her current school who continually tease her and annoy her because she is different. Her other school friends do not harass her. It would be devastating for her to be taken out of her happy school life.

    ·He does not think the authorities can and will protect the second named applicant because, unless the education system changes, the second named applicant cannot be protected from abuse again.

    Second named applicant’s claims

18. In her application for a Protection visa the second named applicant made the following claims:

    ·She left South Korea because she cannot attend school in South Korea. She is afraid of the teachers and class mates and what they may say or do to her.

    ·She experienced harm from abusive teachers and students and was physically punished. She went to a doctor for 2 years to get happy.

    ·If she returns to South Korea she fears school and everyone in it. She does not want to go back to that again. She fears harm from everyone at school and everyone in her age group. There is no one in South Korea who understands her.

    ·She likes going to school in Australia and is afraid of South Korean schools, teachers and students.

    ·The authorities cannot protect her as they are on the side of the schools.

19. The applicants have provided to the Department copies of the bio data pages of their South Korean passports, a document titled ‘Confirmation’, a Report on Psychometric Assessment dated [in] May 2015 in relation to the second named applicant, [a] Individual Achievement Test dated [in] February 2015 in relation to the second named applicant, a document from [School 1] titled ‘Record of Conversation’ dated 26 March 2015, a Speech Pathology Assessment Report dated [in] June 2015 in relation to the second named applicant and country information.

20. The first and third named applicants attended an interview with the Department on 7 July 2018. During the interview, they re-iterated and expanded on the written claims. The first named applicant claimed that he was seeking protection on the grounds of being culturally disadvantaged. On 29 July 2015, the delegate found that the applicants’ claims had no nexus to the Refugees Convention and that they are not persons in respect of whom Australia has any protection obligations.

21. The Tribunal received an undated and unsigned statement from the applicants which stated that protection was being sought on the grounds of political opinion. It stated that the second named applicant expressed her unpopular ideas so she was persecuted by classmates and teachers. It stated that if the second named applicant is unable to express herself and be harassed because of her opinions there is no way she can live a normal life. It stated that she was unable to have a decent education because of her opinions and this should be based on political opinion.

22. On 21 August 2018, the Tribunal received a written submission dated 17 August 2018 from the applicants’ migration agent. In his submission, he stated that the second named applicant’s claims are based on her membership of a particular social groups being a student who was not able to adopt and adjust to school in South Korea and being a student who dropped out of school as she was unable to adopt and adjust to school in a proper manner. 

23. Following the hearing, the Tribunal received written submissions dated 5 September 2018 from the applicants’ migration agent together with some country information.

    Country of reference/receiving country

24. The first and second named applicants claim to be citizens of South Korea and have provided copies of their South Korean passports to the Department. In the absence of any evidence to the contrary, the Tribunal finds that they are citizens of South Korea. The Tribunal finds that South Korea is their country of reference for the purpose of assessing their claims under the Refugees Convention and their receiving country for the purpose of assessing their claims under the complementary protection criterion.

25. The Tribunal finds that the first and second named applicants are outside their country of nationality. There is no evidence before the Tribunal to suggest that they have a right to enter and reside in any country other than their country of nationality.

    Membership of the same family unit

26. The Tribunal finds that the third named applicant is the spouse of the first named applicant and the second, fourth, fifth and sixth named applicants are his dependent children. The Tribunal finds that the second, third, fourth, fifth and sixth named applicants are members of the same family unit as the first named applicant.

    Assessment of claims

27. During the hearing, the Tribunal discussed with the first named applicant his claims and the claims made by him on behalf of the second named applicant. He stated that he was giving evidence for and on behalf of the second named applicant as her carer and guardian. He stated that she will not be proceeding with any claims in relation to her political opinions and requested that the Tribunal disregard those claims. In view of the above, the Tribunal finds that the claims made on behalf of the second named applicant in relation to her political opinions are withdrawn and the Tribunal will disregard those claims.

28. The first named applicant gave evidence that the second named applicant commenced kindergarten in South Korea at the age of 7 years. He stated that she went to two different kindergartens. He stated that in the first kindergarten the focus was not on learning and the second named applicant had no problems. He stated that in the second kindergarten the focus was on learning and she found it difficult. He stated that she commenced school in a public general school and only attended school for one semester. He stated that her teacher was violent towards her. He stated that he went to her school to pick her up and she did not come out. He stated that he then went to her class and found her crying as her teacher was punishing her.  When asked how her teacher was punishing her, he responded that he did not see the teacher hit her or physically punish her but she spoke “violent words” to her and she was crying.

29. The first named applicant gave evidence that the third named applicant spoke to the teacher to no avail. He stated that they did not report the teacher to the Principal or to the Department of Education as they did not think it would achieve anything. He stated that they took the second named applicant out of school after one semester and home schooled her. He stated that they took her to a psychology centre where she was assessed for learning difficulties and her mental health status. He stated that the tests results indicated that she had a high IQ but had low scores in other areas. He stated that she also received psychological treatment. He stated that he had to pay for the tests and treatment for 1 ½ years and it was very expensive. He stated that home schooling did not work as the second named applicant was becoming more depressed.

30. The first named applicant has provided to the Department a Report on Psychometric Assessment dated [in] May 2015 and a Speech Pathology Assessment Report dated [in] June 2015. The Report on Psychometric Assessment indicates that the second named applicant’s perceptual skills are highly developed and she is highly intelligent when dealing with information expressed visually but not verbally. It indicates that her verbal reception and expression and her auditory working memory is at a very low level. The author of the Report indicates that it is imperative to find out whether she has a generalized language delay in both the Korean and English languages or is just having significant difficulty learning the English language but has good Korean language skills.

31. The Speech Pathology Assessment Report indicates that the second named applicant’s level of Korean language skills was much higher than her English language skills. It indicates that her receptive language skills were found to be stronger than her expressive language skills in the Korean language. It indicates that she has mild speech difficulties and her language difficulties in both the Korean and English languages would impact on her ability to understand and interpret school materials presented in text as well as verbally. It indicates that these difficulties may not only affect her academic work at school but also her interaction with peers and teachers.

32. In view of the above Reports obtained in Australia and the Report obtained in South Korea, the Tribunal discussed with the first named applicant his claim that the second named applicant does not have any learning difficulties. He responded that she does have learning difficulties. When asked whether he made any attempts to get her into a special school, he responded that he did not. He stated that they sent her for treatment by a psychologist for 1 ½ years. He stated that since coming to Australia the second named applicant has improved. He stated that her school makes special provision for her learning difficulties. He stated that she is assisted in the school and not picked on like she was in South Korea.

33. In his visa application, the first named applicant claimed that schools in South Korea cannot cater to the needs of the second named applicant and that there are no schools in South Korea that she can attend. This is not consistent with the country information. The country information indicates that there is legislation in place in South Korea to provide free education and support for children with diagnosed special needs. It indicates that there are three options for schooling children with special needs; firstly to attend regular classes in a general school; secondly to attend separate classes in a general school and thirdly to attend a special school. It indicates that students with mild to moderate disabilities are encouraged to attend general schools. It indicates that the laws in South Korea prohibit discrimination in education and encourage inclusive education.[1]

    [1] Country of Origin Information Services Section, South Korea: C1180607102406015 – Education System.

34. The Tribunal discussed the above country information with the first named applicant. He responded that what is on paper is different to the real situation. He stated that if this was the case the happiness of teenagers in South Korea would be at the middle or top of the global level. He stated that the research shows that it is on the bottom. He stated that the number one reason for the death of teenagers is suicide. He stated that if the South Korean government has such a great education system they should have some say in relation to the unhappiness of children and the high suicide rate.

35. The country information indicates that the Ministry of Education provides free education for children with physical and intellectual disabilities from the age of 5 years to the age of 18 years. It indicates that there are currently 29 special schools in Seoul and 754 classes nationwide. It indicates that under South Korean law there must be at least one school in each province to cater for children with special learning needs. It indicates that to enrol a child at a school for special needs, the child has to be registered as a child with a disability at their local district office and then parents can make an application at the school of their choice.

1. The Tribunal discussed the above country information with the first named applicant. He responded that he believes that the second named applicant is in a different category and does not fall into this category. He stated that the special school is for children with serious disabilities and if the second named applicant fell into that category he would have sent her to a special school. He stated that she is between a general school and a special school. He stated that she has a high IQ and a low EQ. He stated that if both were low he would have sent her to a special school. He stated that in this regard the South Korean education system fails to provide protection. He stated that he believes that the country information is for the country to show off its education system to overseas countries. He stated that in South Korea the residents of a neighbourhood opposed the building of a special school. He stated that the parents of these children had to get on their knees to have the school built and that did not work.

2. The third named applicant gave evidence for and on behalf of the second named applicant as her carer and guardian. She stated that she asked the school that the second named applicant attended in South Korea to move her to another class but the school did not agree to do so. She stated that other students were also afraid of the environment at school and other mothers were also concerned about the teacher but were afraid to say or do anything about it. She stated that she made efforts to find a school that the second named applicant could attend if she was able to get the “disability grade”. She stated that she was unable to get the grade for a disability. She stated that at the end of one semester at school she had the second named applicant assessed and she was assessed as suffering from an intellectual difficulty as well as from depression. She stated that they were advised that if she did not receive treatment for depression while growing up she could end up with psychological issues as an adult. She stated that she was removed from school and thereafter received therapy.

3. The Tribunal has before it a document titled ‘Confirmation’ from a therapist in Seoul, South Korea. It indicates that the second named applicant received treatment for childhood depression twice a week from [September] 2008 to [February] 2010. It indicates that she underwent a general psychological test, play therapy, group socialization training and cognitive therapy from August 2009.

4. The third named applicant gave evidence that the situation in South Korea was difficult for the second named applicant and she has improved since living in Australia. She stated that they did not want to apply for Protection visas but the culture in Australia is different and they were able to discuss her needs with her teacher without any concerns. She stated that she was impressed with her teacher and what the school has done for her. She stated that they would like to find a way to reside in Australia permanently. When asked what she thought would happen if they returned to South Korea, she responded that it would be difficult for them to get used to living there.

5. The first named applicant gave evidence that he decided to come to Australia for the benefit of his children and in particular their education. He stated that the third named applicant’s parents and two siblings live in Australia and they wanted her to live in Australia as well. He stated that he spent enormous amounts of money on his children’s education in South Korea and was in debt. He stated that he thought that if he came to Australia he could resolve that issue, have financial stability and improve the well-being of his family. He stated that his application for a [different temporary] visa was unsuccessful because he had problems with the [manager] and left the [agency]. 

6. The first named applicant gave evidence that the second named applicant is in Year [number] and will finish school this year.

7. The Tribunal has had regard to the submissions made by the applicants’ migration agent. In his/her submissions dated 17 August 2018, he/she stated that the second named applicant is a member of particular social groups being ‘a student who was not able to adopt and adjust to school in Korea’ and ‘a student who dropped out of school due to being unable to adopt and adjust to school’. He/she submitted that she was not able to obtain help from the schools she attended, schools in South Korea are governed and regulated by the government and the schools (therefore the government) has an obligation to help the students who attend school. (This is not consistent with the country information which indicates that there are many private schools in South Korea). He/she submitted that she was denied the basic right to be educated.

8. In post hearing submissions dated 5 September 2018, the applicants’ migration agent set out the applicants’ immigration history in Australia, criticised the Department for providing them with incorrect immigration advice and submitted that if they had been aware of Protection visas they would have made their visa application earlier. He/she provided the Tribunal with two newspaper articles in English. The first article was dated 17 September 2017, was in The Korea Herald and was titled ‘Disabled students in South Korea struggle to find right school’. The article referred to a mother’s concerns about her severely disabled daughter who attends a “regular elementary school” as she is unable to attend a special school because of distance and the availability of places. The article indicates that there are insufficient special schools and the regular schools do not have the facilities required for children with disabilities.

9. The article quotes the Vice President of the Korean Parents’ Network for People with Disabilities who stated that individualised vocational training is essential for students with disabilities because it can help them build appropriate career paths. It also quotes a politician in the opposition party who stated that the right education services for all students is a “matter of ensuring a basic human right”.

Findings

1. Having considered all the claims, evidence and submissions, the Tribunal accepts that the second named applicant was born on [date] and is now [age] years old. The Tribunal accepts that she has learning difficulties. The Tribunal accepts that she attended a public general school in South Korea for one semester. The Tribunal accepts that her parents, the first and third named applicants, decided to remove her from school after one semester as they felt that her teacher was not supportive of her, she was bullied by some of her classmates and had difficulty coping with the school environment. The Tribunal accepts that they thereafter decided to home school her.

2. The Tribunal accepts that the second named applicant was subsequently assessed and diagnosed as having childhood depression. The Tribunal accepts that she thereafter attended a “psychological centre” in Seoul twice a week from [September] 2008 to [February] 2010 where she underwent therapy for childhood depression. It is not clear from the evidence before the Tribunal as to whether she received any assistance with her learning difficulties in South Korea.

3. The Tribunal accepts that the second named applicant’s therapy was expensive and that the first named applicant got into debt to pay for it. The Tribunal accepts that he decided to come to Australia with his family so that he could earn enough money to pay off his debts, get financial security, provide his children with a good education and improve the welfare of his family. The Tribunal accepts that the third named applicant’s parents and siblings live in Australia, they wanted her and her family to immigrate to Australia and that this was another reason why the first and third named applicant’s decided to come to Australia.

4. The Tribunal accepts that, having arrived in Australia on Visitor visas [in] September 2010, the applicants applied for and were granted further Visitor visas on two occasions. The Tribunal accepts that the first and third named applicants unsuccessfully applied for a [different temporary] visa and a Student visa respectively and when those visa applications were unsuccessful they applied for Protection visas. The Tribunal accepts that they did not wish to apply for Protection visas but did so because their children were attending school in Australia, the second named applicant was feeling better and they were impressed with the steps taken by her teachers and school to assist her with her learning difficulties. The Tribunal accepts that the applicants do not wish to return to South Korea and would prefer to live in Australia.

5. The Tribunal does not accept that the second named applicant fears everyone in her age group in South Korea and that there is no one in South Korea who understands her. The Tribunal accepts that she is in Year [number] and will be finishing school this year. The Tribunal notes that her schooling will be complete in a few weeks and it will therefore not be necessary for her to attend school in South Korea. The first named applicant’s claims and the claims made on behalf of the second named applicant in relation to her schooling in South Korea are no longer relevant.

6. Having considered all the claims, evidence and submissions, the Tribunal is not satisfied that the first and second named applicants are at risk of serious harm or significant harm for any of the reasons claimed if they return to South Korea now or in the reasonably foreseeable future.

   Does Australia have protection obligations to the first and second named applicants under          the Refugees Convention?

7. Having considered all of the first and second named applicants’ claims, individually and cumulatively, all the evidence and the submissions and in view of the above findings, the finds that there is no real chance that they would be at risk of persecution on the grounds of membership of a particular social group or any other Refugee Convention reason if they return to South Korea now or in the reasonably foreseeable future. Therefore, the Tribunal finds that they do not have a well-founded fear of persecution for a Refugee Convention reason. Accordingly, the Tribunal finds that they do not satisfy the criterion in s.36(2)(a) of the Act.  

   Does Australia have protection obligations to the first and second named applicants under          the complementary protection criterion?

8. As the Tribunal has found that the first and second named applicants do not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether they may nevertheless meet the criterion for the grant of Protection visas pursuant to the complementary protection criterion.

9. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the first and second named applicants will suffer significant harm for any of the reasons claimed if they return to South Korea now or in the reasonably foreseeable future.

10. Having considered all of the first and second named applicants’ claims, individually and cumulatively, all the evidence and the submissions, the Tribunal is not satisfied that the first and second named applicants will be arbitrarily deprived of life, the death penalty will be carried out on them, they will be subjected to cruel or inhuman treatment or punishment or they will be subjected to degrading treatment or punishment if they return to South Korea now or in the reasonably foreseeable future.     

11. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first and second named applicants being removed from Australia to South Korea, there is a real risk that they will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that they do not satisfy the criterion in s.36(2)(aa) of the Act. 

    CONCLUSION

12. The Tribunal finds that the first and second named applicants do not satisfy the criteria in s.36(2)(a) or s.36(2)(aa) of the Act.

13. There is no suggestion that the first and second named applicants satisfy s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the first and second named applicants do not satisfy the criterion in s.36(2) of the Act.

14. As the first named applicant does not satisfy the criteria in s.36(2)(a) or (aa) of the Act and does not  hold a Protection visa, the third, fourth, fifth and sixth named applicants are unable to satisfy the criteria in s.36(2)(b) or (c) of the Act. Accordingly, the third, fourth, fifth and sixth named applicants do not satisfy the criterion in s.36(2) of the Act.

    DECISION

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

Linda Symons
         Member