1515580 (Refugee)

[2018] AATA 5073

1515580 (Refugee) [2018] AATA 5073 (24 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515580

COUNTRY OF REFERENCE:                  Korea, Republic Of

MEMBER:Linda Symons

DATE:24 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 24 October 2018 at 10:58am

CATCHWORDS
REFUGEE – protection visa – Republic of Korea – particular social group – returnees to South Korea who are aged 50 years and over – age discrimination – fear of economic hardship – fear of starvation and homelessness – fear of harm from society and employers in general – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 438, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Applicant A v MIEA (1997) 190 CLR 225
MZAFZ v MIBP [2016] FCA 1081

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] May 1992 as the holder of a [temporary] visa that was valid until 30 April 1996. He applied for and was granted [another] visa on 16 January 1997. This visa was valid until 2 January 2001. On 28 December 2000, he applied for a [another temporary] visa that was refused on 23 November 2001. This decision was affirmed by the Migration Review Tribunal (MRT) on 6 January 2003.

3. The first named applicant then applied for a [Tourist visa] on 21 May 2003 and his application was refused on 21 September 2004. His associated Bridging visa ceased on 28 October 2004 and he thereafter remained in Australia as an unlawful non-citizen. On 30 January 2013, he was granted a Bridging visa in association with his request for Ministerial intervention. On 24 May 2014, his request for Ministerial intervention was refused. On 4 September 2014, it was determined that the notification of refusal of his application for a [Tourist visa] [was] defective and his associated Bridging visa was reinstated. This visa application was again refused on 13 October 2014 and affirmed by the MRT on 19 February 2015.

4. Since he first arrived in Australia [in] May 1992, the first named applicant has departed Australia [in] May 1996 and returned [in] May 1996, departed Australia [in] August 1997 and returned [in] September 1997, departed Australia [in] September 1997 and returned [in] October 1997, departed Australia [in] October 1997 and returned [in] October 1997, departed Australia [in] November 1997 and returned [in] December 1997, departed Australia [in] February 2003 and returned [in] February 2003 as the holder of a [Visitor] visa.

5. The second named applicant, who claims to be a citizen of the Republic of Korea (South Korea), first arrived in Australia [in] May 1992 as the holder of a [temporary] visa that was valid until 30 April 1996. She applied for and was granted a [temporary] visa on 16 January 1997. This visa was valid until 2 January 2001. On 28 December 2000, she applied for [another visa] that was refused on 23 November 2001. This decision was affirmed by the MRT on 6 January 2003. Her Bridging visa ceased on 13 February 2003 and she thereafter remained in Australia as an unlawful non-citizen. On 30 January 2013, she was granted a Bridging visa in association with her request for Ministerial intervention. She remained in Australia as an unlawful non-citizen between 18 July 2014 and 6 August 2014.

6. Since she first arrived in Australia [in] May 1992, the second named applicant has departed Australia [in] January 1998 and returned [in] February 1998 and departed Australia [in] July 2002 and returned [in] July 2002.

7. The applicants applied to the Department of Home Affairs (the Department) for Protection visas on 17 July 2014. On 24 August 2014, the delegate found that the application was invalid. The applicants sought judicial review of this decision and on 3 March 2015 the Federal Circuit Court found that it was a valid application and remitted the matter to the Department for reconsideration.  On 21 October 2015, the delegate refused to grant the visas. On 16 November 2015, the applicants applied to the Tribunal for a review of that decision.

8. The applicants appeared before the Tribunal on 31 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.

9. The applicants were represented in relation to the review by their registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

11. 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.

12. 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).

13. 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.

14. 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’).

15. 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.

    The first named applicant’s claims

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

    ·He left South Korea for business opportunities in Australia.

    ·His family has been living in Australia since 1992. As a result of his age and long term residence in Australia, he is afraid that he will not have employment opportunities and will be denied the capacity to earn a livelihood if he returns to South Korea and his family will suffer significant economic hardship as a result.

    ·He fears harm from the South Korean society and employers in general.

    ·In 2013, South Korea had the lowest ranking in Asia in terms of economic security for the elderly. South Korean companies often force employees in their 50s to retire in preference for younger workers.

17. The second named applicant did not make any claims in her own right. She claims to be the spouse of the first named applicant and a member of the same family unit.

18. The first named applicant has provided to the Department copies of his and the second named applicant’s South Korean passports.

19. The applicants’ migration agent provided written submissions dated 17 July 2014 to the Department.

20. The first named applicant attended an interview with the delegate on 16 July 2015. During the interview, he re-iterated and expanded on his written claims. The delegate found that the applicants are not persons in respect of whom Australia has any protection obligations.

21. The first named applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 21 October 2015. The Tribunal has also been provided with copies of the bio data pages of the applicants’ South Korean passports.

22. On 31 August 2018, the Tribunal received written submissions from the applicants’ migration agent which enclosed a Response to the Hearing Invitation and a copy of the Department’s Decision Record dated 21 October 2015. In the submissions, the migration agent stated that the first named applicant is a member of a particular social group classified as ‘returnees to South Korea who are aged 50 years and over’. She submitted that the persecution he fears involves serious harm in the form of significant economic hardship that will threaten his and the second named applicant’s capacity to subsist. She also submitted that it involves significant harm as this would amount to cruel treatment as it will involve suffering in the form of starvation and homelessness.

23. The applicants’ migration agent referred to country information in relation to age discrimination in employment in South Korea. She submitted, in relation to the delay in applying for protection, that the application for Protection visas was lodged within a month of the first named applicant attaining the age of 50 years when his need for protection arose. She submitted that he is entitled to protection under the refugee criterion and the complementary protection criterion.

    Country of reference/Receiving country

24. The first named applicant claims to be a citizen of South Korea and has provided a copy of his South Korean passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of South Korea. The Tribunal finds that South Korea is the country of reference for the purpose of assessing his claims for protection under the Refugees Convention and the receiving country for the purpose of assessing his claims for protection under the complementary protection criteria.

    Third country protection

25. The Tribunal finds that the first named applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.

    Membership of the same family unit

26. The Tribunal finds that the second named applicant is the spouse of the first named applicant. The Tribunal finds that she is a member 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 background, his family, his education, his employment, his reasons for leaving South Korea and why he fears returning to South Korea.

28. The first named applicant gave evidence to the Tribunal that his application for Protection visas was prepared by his migration agent on his instructions which were true and correct. He stated that he is satisfied that his visa application is accurate and complete. When asked whether there had been any changes in his circumstances since he filed his visa application, he stated that he was told “very strongly” that he should not work. He stated that he did not work initially but started working again after about a year. He stated that he works six days a week as [Occupation 1] and his wife (the second named applicant) works with him two days a week.  

29. In considering the first named applicant’s claims, the Tribunal discussed with him his employment in South Korea and in Australia. He stated that his first job in South Korea was as [Occupation 2]. He stated that he did that job for 2 to 3 years. He stated that he then worked as an [Occupation 3] in [a specified] industry in his brother in law’s business which was based in Australia and South Korea. He stated that this enabled him to come to Australia and he also worked here as an [Occupation 3] in his brother in law’s [company]. He stated that the [business] was not doing well so the company changed its name to [name] and started exporting [goods]. He stated that he worked there until about 2009. (This date is not consistent with his visa application). He stated that he then worked at [another company] for just over 2 years. He stated that he then worked as [Occupation 4] for 3 years. He stated that he also worked as a [Occupation 1] for 16 years. 

30. The Tribunal asked the first named applicant about his assets. He stated that he owns a car, furniture and savings of about $[amount] to $[amount]. He stated that he also has a joint bank account and the second named applicant has a bank account in her name. He stated that he did not know how much money he had in his joint bank account.

31. The Tribunal discussed with the first named applicant his claim that he fears harm from the South Korean society and employers in general. He stated that he does not fear harm “in the legal context”. He stated that he has no means to start again and is concerned that he will not be able to find a job in South Korea. He stated that his mother was diagnosed with cancer last year and he has been sending money to her from Australia. He stated that things have been difficult since then. When asked why he fears he will not be able to find a job in South Korea, he stated that the retirement age starts at 50 years. He stated that his older brothers are at that stage of life.

32. The Tribunal pointed out to the first named applicant that this is not consistent with the country information which indicates that the retirement age in South Korea is 60 years and not 50 years.[1] He responded that he is aware that the retirement age is 60 years but in practise companies start retiring people in their 50s. He stated that his older brothers were forced to retire. He stated that he would have to obtain a job. When asked why he would not be able to return to his old job as an [Occupation 3], he responded that there are no businesses doing that kind of work. He stated that when he was leaving South Korea those businesses were closing down. When asked whether he was suggesting that there are no [identical] businesses in South Korea, he responded that he was not. He stated that there is no room for smaller businesses. He stated that entering into that industry at his age is impossible.

    [1] South Korea: Normal Retirement Age to Increase, Global News Briefs, 24 May 2014. (>

    The Tribunal has considered relevant country information. The country information indicates that legislation was passed on 30 April 2013 to increase the minimum retirement age to 60 years in response to an aging workforce in South Korea. It indicates that the major amendment was that employers must guarantee employment to age 60 years. It indicates that this amendment came into effect in 2016 for companies with 300 or more employees and in 2017 for companies with less than 300 employees. It indicates that this amendment does not prevent an employee from choosing to retire early if the contract of service or collective agreement permits earlier retirement.[2]

    [2] Ibid.

33. As this is a relatively recent change in employment practises in South Korea, it may be that the first named applicant’s older brothers were unable to benefit from this change in the legislation. This country information indicates that once he obtains employment in South Korea, he will be able to continue to work until at least the age of 60 years if he chooses to do so.       

34. In submissions to the Tribunal dated 30 August 2018, the applicants’ migration agent submitted that, although South Korean law prohibits discrimination in employment based on age, age discrimination is prevalent in South Korean employment practices and that the practice is systematic. She has provided links to country information in three articles. The first article is dated 14 December 2016 and refers to the types of questions being asked in job applications and interviews and mentions youth unemployment. The second article is dated 7 November 2016 and also refers to discriminatory questions being asked in job applications. The third article is dated 27 March 2012 and refers to age discrimination in employment against women in South Korea. There have been significant changes, including legislative changes, in employment practices since then.

35. The country information indicates that the South Korean government has taken specific steps to address the issue of age discrimination in employment. It indicates that the primary Act that specifically deals with age discrimination in employment in South Korea is the Prohibition of Age Discrimination in Employment and Aged Employment Promotion Act which prohibits age discrimination in employment and promotes aged employment. It indicates that the Prohibition of Age Discrimination in Employment and Aged Employment Promotion Act expressly prohibits employers from discriminating against individuals on the basis of age regarding recruitment and employment, salary, education and training, placement, transfer or promotion.[3]

    [3] Age discrimination.info: South Korea, Yulchon LLC, 19 August 2016. (

36. The country information also indicates that the Framework Act on Enforcement Policy and the National Human Rights Commission Act also have provisions prohibiting age discrimination in employment but these Acts only provide for an investigatory procedure that results in non-binding recommendations. It indicates that recommendations from the Human Rights Commission are notified to the Ministry of Employment and Labour and the Ministry of Employment and Labour (Labour Relations Commission) may order the employer to rectify the discriminatory behaviour.[4]

    [4] Ibid.

37. The Tribunal discussed with the first named applicant country information in relation to laws prohibiting age discrimination in employment in South Korea and the avenues of redress available in South Korea. He responded that he is aware of the systems and instruments. He stated that the reality is that, not just older people, even young people are experiencing difficulties in the area of employment. He stated that South Korea has the highest rates of homelessness and suicide in the world. He stated that he is not claiming that this would happen to him. He stated that, at his age, even with government support, it is impossible. He stated that he never imagined that he would have to start again in South Korea.   

1. The Tribunal asked the first named applicant whether he had any evidence to support his claims that South Korea has the highest rate of homelessness and suicide in the world. He responded that they came across many news articles. When the Tribunal pointed out that there is homelessness and suicide in most countries in the world including Australia, he responded that employment for older people has been one of the biggest problems in South Korea. The Tribunal notes his evidence that he is not making any claims in relation to homelessness and/or suicide.

2. The country information indicates that there are companies in South Korea that specialize in providing employment for older people. It indicates that there is, for instance, one company that only employs people 55 years and older and has 420 employees aged 55 to 83 years.[5] The Tribunal discussed this information with the first named applicant. He responded that, to his knowledge, there are many such companies in South Korea. He stated that he is not sure whether they are operating properly and what the hourly rate is. He stated that if he returns he has no base to start again and hospitals. He stated that he never thought of going back to South Korea. The country information indicates that the Labour Standards Act provides for conditions of employment such as employment contracts, leave, working hours, dismissal procedures etc[6] and that a Minimum Wage Commission sets a minimum hourly wage.[7]

   [5] South Korean Startup Only Hires People Over 55, to Fight Age Discrimination, Oddity Central, 15 June 2017. (

   [6] Labour codes, general labour and employment Acts: Republic of Korea, International Labour Organization. ( Korea raises minimum hourly wage to 7,530 won for 2018, The Korea Herald, 16 July 2017. (>

   The Tribunal discussed with the first named applicant Australia’s compulsory superannuation laws and noted that he would have accumulated superannuation in any jobs he has done lawfully in Australia since 1992. The Tribunal noted that if he was leaving Australia permanently to return to South Korea he would be able to access his superannuation funds. The Tribunal noted that this would enable him to establish and support himself and his family until such time as he found employment. He responded that he worked for cash in hand because he was told that he did not have a work permit. When the Tribunal pointed out that he had a visa that gave him permission to work when he came to Australia, he responded that they went bankrupt.

3. The first named applicant’s evidence to the Tribunal is that he worked as an [Occupation 3] in Australia from 1992 to 2009 (this is not consistent with this visa application in which he stated that it was up to 2000) and thereafter at [another company] for 2 years before working as [Occupation 4] and a [Occupation 1]. The Tribunal does not accept that his jobs as an [Occupation 3] and at [another company] were for cash in hand and therefore, presumably, that he was not entitled to superannuation benefits for these jobs.

4. The Tribunal discussed with the first named applicant the different types of assistance offered by the Department (through the International Organization for Migration) to asylum seekers who voluntarily return to their country of origin.[8] He responded that just listening to this information makes him scared.

   [8] Voluntary Returns, Department of Home Affairs. (>

   The Tribunal raised as an issue with the first named applicant its doubts that he will be denied the capacity to earn a livelihood and face homelessness and starvation if he returns to South Korea. The Tribunal noted that there are laws that prevent discrimination in employment on the grounds of age and legal avenues available to enforce those laws. The Tribunal noted that he is in a better position to obtain employment in South Korea than many other South Koreans as he has tertiary qualifications, work experience in South Korea as an [Occupation 3], considerable work experience in Australia as an [Occupation 3] as well as in other [fields]. The Tribunal also noted that he has acquired English language skills. The Tribunal noted that if he were to access his superannuation entitlements in Australia and seek the assistance of the Department (through the International Organization for Migration) if he returns to South Korea voluntarily he may be able to set up his own business and not have to rely on anyone else.

5. The first named applicant responded that he studied physical exercise in South Korea and was doing exercises. He stated that gentlemen in sport in South Korea do not study; they do physical exercises. He stated that he cannot do anything with the skills he acquired in Australia in small companies. He stated that the English language is difficult. The Tribunal noted that there are thousands of businesses in South Korea that require [Occupation 1] and [workplaces] that require [Occupation 4s]. He responded that [Occupation 4s] in South Korea require a license. He stated that [Occupation 1 work] in Australia is different. He stated that in South Korea [the work] is outsourced. He stated that the [Occupation 1 workers] are mainly middle aged women and [specific sectors of that industry do] not exist in South Korea.

6. The first named applicant gave evidence that he has one child; a son who is [age] years old. He stated that his son is [studying] in Australia and is on a Student visa. He stated that his son is unmarried but has a South Korean girlfriend. He stated that she is currently in Australia, is not a permanent resident in Australia and her parents live in South Korea. He stated that when his son travels to South Korea he does not stay in a particular place. He stated that if his son returns to live in South Korea he will have to do military service. When the Tribunal noted that this is a law of general application, he agreed.

7. The first named applicant gave evidence that his parents and two older brothers live in South Korea. He stated that his wife’s parents and a sister also live in South Korea. The Tribunal raised as an issue with him its doubts that he will starve and be homeless if he returns to South Korea when he has the support of family members in South Korea. He responded that his older brothers are looking for jobs and are struggling. He stated that one of his brothers has a PhD and cannot find a job.

8. The Tribunal has had regard to the Tribunal's Guidelines on the Assessment of Credibility when assessing the first named applicant's credibility. The Tribunal has also had regard to the Department's Policy Guidelines to the extent that they are relevant to the decision under consideration.

   Section 438 Certificate

9. The Tribunal informed the first named applicant that his file from the Department contained a Certificate under s.438 of the Act and it related to the non-disclosure of information contained on 17 pages in the file. The Tribunal informed him that the Certificate was issued on the basis that it was contrary to public interest to disclose the information. The Tribunal informed him that the information subject to the s.438 Certificate relates to his unlawful status in Australia, interviews held with him to resolve his immigration status and his appeal to the Federal Circuit Court in relation to the Department’s decision that his application for Protection visas was invalid. The Tribunal informed him that, in its view, it is not a valid Certificate.

10. The Tribunal invited the first named applicant to make submissions on the validity of the s.438 Certificate. He did not respond. His migration agent submitted that, based on the information provided by the Tribunal, she agreed that the Certificate is not valid.

11. In light of the Federal Court decision in MZAFZ v MIBP[9], which considered a s.438 certificate with similar wording, the Tribunal finds that the s.438 Certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity.

    Findings

    [9] MZAFZ v MIBP [2016] FCA 1081

12. Having considered the first named applicant’s claims, the evidence and the submission, the Tribunal accepts that he was born on [date] at Seoul in South Korea. The Tribunal accepts that he was married [in] December 1987 and has one child of his marriage. The Tribunal accepts that his son is currently [age] years old, is [studying] in Australia and is on a Student visa. The Tribunal accepts that his son is not married but has a South Korean girlfriend who is not a permanent resident in Australia. The Tribunal accepts that his son has visited South Korea many times and will be required to undertake compulsory military service if he returns to live in South Korea. The Tribunal accepts that his parents, two older brothers, his wife’s parents and her sister live in South Korea.

13. The Tribunal accepts that the first named applicant worked [as an Occupation 2] and as an [Occupation 3] in [another] industry in South Korea. The Tribunal accepts that he and his family came to Australia [in] May 1992 and that he thereafter worked as [Occupation 3] in two different companies owned by his brother in law who is a permanent resident in Australia. The Tribunal accepts that he also worked at [another company] for 2 years and as [Occupation 4] and a [Occupation 1] whilst living here unlawfully for several years. The Tribunal accepts that he is currently working full time as a [Occupation 1] and that his wife works part time as a [Occupation 1].

14. The Tribunal accepts that the first named applicant wishes to live in Australia permanently and does not wish to return to South Korea. The Tribunal accepts that he has a lengthy immigration history in Australia, including a request for Ministerial intervention, and has tried his best to obtain permanent residence in Australia. The Tribunal accepts that he is afraid of having to “start again” in South Korea.

15. The Tribunal accepts that the first named applicant has a subjective fear that, as a result of his age and long term residence in Australia, he will not have employment opportunities and will be denied the capacity to earn a livelihood if he returns to South Korea and his family will suffer significant economic hardship as a result. In view of his own evidence, the Tribunal does not accept that he fears harm from South Korean society and employers in general and that he will be homeless if he returns to South Korea. The Tribunal accepts that he has a belief that South Korean companies often force employees in their 50s to retire in preference for younger workers.

    Does Australia have protection obligations to the first named applicant under the Refugees         Convention?

16. In a submission to the Tribunal, the applicants’ migration agent stated that the first named applicant is a member of a particular social group classified as ‘returnees to South Korea who are aged 50 years and over’. The Tribunal finds that this is a particular social group. She submitted that the persecution he fears involves serious harm in the form of significant economic hardship that will threaten his and the second named applicant’s capacity to subsist.

17. In his visa application, the first named applicant claimed that he fears harm from South Korean society and employers in general. However, he resiled from this during the hearing. His evidence indicates that he fears that he has no means to start again and is concerned that he will not be able to find a job in South Korea because of age discrimination in employment by prospective employers and his long term residence in Australia.

18. The Tribunal is unable to find any country information that indicates that returnees to South Korea who have resided overseas for a prolonged period are subject to discrimination or persecution. Whilst this, of itself, does not mean that it does not exist, the Tribunal would expect that if this is an issue in South Korean society there would be some mention of it in the media and/or academic writings. The country information does indicate that age discrimination in employment in South Korea has been an issue. For the reasons below, the Tribunal does not accept that this practise is systemic. The country information indicates that the South Korean government has taken considerable steps to address this issue and that employment practises have changed.

19. The country information referred to above indicates that South Korea has an aging workforce and that the South Korean government has legislated to increase the minimum age of retirement to 60 years and to require employers to guarantee employment to age 60 years.[10] It indicates that certain grants and incentives are provided to employers who hire older workers.[11] It indicates that there are companies in South Korea that specialize in providing employment for older workers.[12]

    [10] South Korea: Normal Retirement Age to Increase, Global News Briefs, 24 May 2014. ( Employment and employee benefits in South Korea: Overview, Jeong Han Lee and Anthony Chang, Bae, Kim & Lee, LLC, 1 March 2015. ( South Korean Startup Only Hires People Over 55, to Fight Age Discrimination, Oddity Central, 15 June 2017. (

20. The country information indicates that the South Korean government has passed legislation that specifically deals with age discrimination in employment. The Prohibition of Age Discrimination in Employment and Aged Employment Promotion Act not only prohibits age discrimination in employment but also promotes aged employment.[13] The South Korean government has passed legislation such the Framework Act on Enforcement Policy and the National Human Rights Commission Act that not only prohibits age discrimination in employment but also provide an investigatory process for dealing with complaints in relation to age discrimination in employment. The National Human Rights Commission is also able to investigate complaints in relation to discrimination in employment and quasi-judicial and judicial organizations such as the Labour Relations Commission and the District Court enforce employees’ rights.[14]

    [13] Age discrimination.info: South Korea, Yulchon LLC, 19 August 2016. ( Silkin, Lews, Employment Law in the Republic of Korea – An Overview, 1 June 2017. (>

    The above country information indicates that the South Korean State has taken affirmative action to provide employment opportunities for older South Koreans by raising the minimum age of retirement, providing grants and incentives to employers who employ older South Koreans and encouraging older South Koreans to remain in the workforce. The South Korean State has taken active steps to legislate against age discrimination in employment and has in place institutions through which redress may be sought. It does not encourage or tolerate age discrimination in employment nor is it powerless to prevent it. On the contrary, it has taken considerable steps to protect its citizens from age discrimination in employment.

21. In Applicant A v MIEA, the High Court stated:

    A person ordinarily looks to “the country of his nationality” for protection of his   fundamental rights and freedoms but, if “a well-founded fear of being persecuted”             makes a person “unwilling to avail himself of the protection of [the country of his   nationality]”, that fear must be a fear of persecution by the country of the putative   refugee’s nationality or persecution which that country is unable or unwilling to   prevent....Thus the definition of “refugee” must be speaking of a fear of persecution   that is official, or officially tolerated or uncontrollable by the authorities of the country   of the refugee’s nationality.[15]

    The Convention is primarily concerned to protect those racial, religious, national,   political and social groups who are singled out and persecuted by or with the tacit                  acceptance of the government of the country from which they have fled or to which                    they are unwilling to return. Persecution by private individuals or groups does not by              itself fall within the definition of refugee unless the State either encourages or is or   appears to be powerless to prevent that private persecution. The object of the   Convention is to provide refuge for those groups who, having lost the de jure or de   facto protection of their governments, are unwilling to return to the countries of their              nationality.[16]

    [15]   Applicant A v MIEA (1997) 190 CLR 225 at 233, per Brennan CJ, referred to with approval in MIMA v Respondent S152/2003 (2004) 222 CLR 1 at [19].

    [16]    Applicant A v MIEA (1997) 190 CLR 225 at 257-8 per McHugh J.

22. The Tribunal accepts that because of the length of time that the first named applicant has lived in Australia it would be challenging for him to readjust to life in South Korea. However, the Tribunal notes that he was able to come to Australia, work here and adjust to life here having never lived here previously. He has also proved himself to be very resourceful in obtaining employment and working as a [Occupation 4] and a [Occupation 1] in Australia for many years during a time when he was living here unlawfully and did not have permission to work. The benefit for him in returning to South Korea is that he is returning to his country of birth and a familiar environment where he speaks the language and where most of his family members and his wife’s family members reside. 

23. The Tribunal notes that if the first named applicant chooses to access his superannuation entitlements in Australia and seek assistance from the Department (through the International Organization for Migration) if he returns to South Korea voluntarily, he would have recourse to financial resources that would make his return to South Korea and readjustment to life there easier. 

24. In view of the above, the Tribunal does not accept that the first named applicant will not have employment opportunities and will be denied the capacity to earn a livelihood if he returns to South Korea and his family will suffer significant economic hardship as a result. The Tribunal does not accept, in light of his own evidence, that he fears harm from the South Korean society and employers in general. As a result of the legislative amendments that came into effect in 2016 and 2017 raising the minimum age of retirement to 60 years and requiring employers to guarantee employment to age 60 years, referred to above, the Tribunal does not accept that South Korean companies will be able to force employees in their 50s to retire in preference for younger workers.

25. Having considered all of the first named applicant’s claims, individually and cumulatively and all the evidence and submission and in view of the findings above, the Tribunal finds that there is no real chance that he will suffer serious harm for reason of his membership of a particular social group or any other reason under the Refugees Convention if he returns to South Korea now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution for a Refugees Convention reason and is not a refugee. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

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

1. As the Tribunal has found that the first named applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

2. In a submission to the Tribunal, the applicants’ migration agent stated that if the first named applicant returns to South Korea he will have limited employment prospects and, without a viable source of income, he and the second named applicant will suffer significant economic hardship that will threaten their capacity to subsist. She submitted this amounts to cruel treatment as it will involve suffering in the form of starvation and homelessness.

3. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the first named applicant will suffer significant harm for any of the reasons claimed if he returns to South Korea now or in the reasonably foreseeable future.

4. Having considered all of the first named applicant’s claims, individually and cumulatively, and all the evidence and submission and in view of the findings above, the Tribunal is not satisfied that he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to South Korea now or in the reasonably foreseeable future.    

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

   CONCLUSION

6. The Tribunal finds that the first named applicant does not satisfy the criteria in s.36(2)(a) or s.36(2)(aa) of the Act.

7. There is no suggestion that the first named applicant satisfies 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 named applicant does not satisfy the criterion in s.36(2) of the Act.

8. 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 second named applicant is unable to satisfy the criteria in s.36(2)(b) or (c) of the Act. Accordingly, the second named applicant does not satisfy the criterion in s.36(2) of the Act.

   DECISION

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

Linda Symons
         Member