1606694 (Refugee)

This matter concerned an application for Protection visas by two applicants, citizens of South Korea. The first applicant had resided in Australia since 1995-1996 and claimed that upon return to South Korea, he would face unfamiliar environments, discrimination, and mistreatment from his peer group due to his long absence and perceived awkwardness. He also asserted that South Korean authorities would not protect him and that relocation was not a viable option. The second applicant, his wife, made no independent claims.

The legal issues before the Tribunal were whether the applicants met the criteria for a Protection visa, specifically under the refugee criterion (s.36(2)(a) of the Migration Act 1958) or the complementary protection criterion (s.36(2)(aa)). This required determining if the first applicant had a well-founded fear of persecution or faced a real risk of significant harm if returned to South Korea, and whether Australia had protection obligations towards him.

The Tribunal considered the first applicant's claims in light of relevant country information and policy guidelines. While acknowledging the potential challenges of re-employment after a long absence, the Tribunal noted his prior work experience and business ownership in Australia. It found that South Korean legislation and initiatives exist to combat age discrimination in employment, and that companies specialise in employing older individuals, making the claim of inability to obtain employment unsubstantiated. The Tribunal accepted that the applicant had become "Australianised" but did not accept that this, or the fear of mistreatment by peers due to perceived awkwardness or lack of funds, amounted to significant harm. Crucially, the Tribunal noted the presence of family members in South Korea, including a daughter who had previously returned, and siblings, from whom support could be sought. Furthermore, it found that South Korea has a functioning legal system and law enforcement, and there was no reason to believe the applicant would not receive state protection. Consequently, the Tribunal was not satisfied that the first applicant faced a real risk of serious or significant harm.

The Tribunal affirmed the decision not to grant the applicants Protection visas. It concluded that the first applicant did not satisfy the refugee criterion as defined in s.5H of the Act, nor the complementary protection criterion under s.36(2)(aa), as there were no substantial grounds for believing he would suffer significant harm. As the first applicant did not meet the criteria, the second applicant, as a family unit member, also failed to satisfy the requirements for a Protection visa.