1609020 (Refugee)

1609020 (Refugee) [2019] AATA 5431 (30 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1609020
COUNTRY OF REFERENCE:                   Korea, Republic Of
MEMBER:Tania Flood
DATE:30 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 30 April 2019 at 1:29pm
CATCHWORDS
REFUGEE – protection visa – South Korea – religion – Jehovah’s Witnesses – imputed political opinion – conscientious objection to compulsory military service – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 36, 65
Migration Regulations 1994 (Cth), 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 June 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Korea, Republic Of (South Korea) applied for the visas on 20 October 2015. The delegate refused to grant the visas on the basis that there is only a remote chance that the primary applicant would be recalled for further military and because the applicants will not face significant economic hardship that would threaten their capacity to subsist.
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 there is a real chance the applicants will suffer serious harm if they return to South Korea for reason of their race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to South Korea there is a real risk that they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
In his application form for a Protection visa the applicant provides the following:
He was born in Geoje, Gyeongnam, South Korea to Korean parents. He is a Jehovah’s Witness. He is married and speaks, reads and writes Korean, [Language 1] and English. He arrived in Australia [in] September 2013 as the holder of a [temporary] visa. In Korea he obtained a [Qualification in Subject 1] in 2001. From 07/2000 to 01/2001 he was employed as [Occupation 1] for [Employer 1] and from 09/2003 to 10/2006 he worked as [Occupation 2] for [Employer 2].
In his statement attached to his application for a protection visa, the applicant made the following claims:
He is a citizen of South Korea and a Jehovah’s Witness. All members of his family are Jehovah’s Witnesses. He has suffered persecution and discrimination as a Jehovah Witness in South Korea.
He is married and his wife and her family are also Jehovah Witnesses. His father in law served 3 years in prison. He then moved to [Country 1] to avoid discrimination against Jehovah’s Witnesses in Korea.
His religion has always been a very important part of his life. On weekends, he does missionary work.
He is a conscientious objector. He ignored a conscription notice received in November 2001. In January 2002, he was interviewed by police and arrested. He was sentenced to 18 months imprisonment and released in March 2003.
After his release from prison, he struggled to find a job due to his criminal record and the fact that employers take military service into consideration when hiring. He is also barred from finding a job in any state or public agency. He finally found a job with a Jehovah Witness who was sympathetic.
He moved to [Country 2] where he studied and lived before coming to Australia in July 2013. He made short trips back to South Korea.
His brother was also imprisoned for refusing to comply with mandatory military service. His brother still lives in Korea and knowing he was prohibited from getting state employment he started a private business under his business partner’s name.
The applicant fears that he will not be able to support his family if he is unable to get a job in South Korea. If a war breaks out between South Korea and North Korea, he will be conscripted again. He fears another imprisonment if he fails to comply with future conscription orders. He and his wife also fear they will be subjected to systematic discrimination due to their religious beliefs.
On 9 October 2015, the following additional documents were submitted in support of the application for a protection visa:
oCertificate of Resident Registration
oCertificate of Marital Relations
oReference Letter ([Suburb 1] Congregation of Jehovah’s Witnesses)
oFamily Relationship Certificate
oCertificate of Imprisonment (Release)
oJudgment made by [a] District Court
oCertificate of Career ([Employer 2])
oCertificate of Graduation ([City, Country 2] University)
oCertificate of graduation ([a specified] College)
oCertificate of [Qualification in Subject 2] [from] College)
oCopy of passport
The submission repeats the key claims made by the applicant in his statement. It is submitted that he fears returning to South Korea because there is always the possibility that war will break out with North Korea and he will be called again for military service which he will refuse to do and again be imprisoned for. Further he will be discriminated against and stigmatised over his imprisonment record and will be prohibited from getting a job or starting his own business. It is submitted that he has a well-founded fear of persecution for the following reasons:
oHis religion
oHis imputed political opinion as an individual who is morally obliged not to support government policy in relation to performing military service
oHis membership of a particular social group of young South Korean males who are obliged by law to perform military service but who are prevented from doing so by their religious beliefs
It is submitted that while the Military Service Act appears to be a law of general application, its practical effect applies only to a small section of the population (being young males over the age of 19). Further the law does not permit the avoidance of military service for reasons of conscience and there are no grounds, except for those of a lack of physical or mental fitness, for non-performance of military service.
It is submitted that forcing an individual to choose between acting in a manner totally opposed to his or genuinely held religious belief or to refuse to so act and consequently be subject to severe criminal sanction, is illegal under international law. Such treatment constituted persecution, amounts to cruel and inhuman treatment or punishment and constitutes significant harm. The application of penal sanctions including incarceration further adds to the level of persecution and significant harm to which an individual is subject.
On 16 March 2016 the applicant’s representative provided a submission to the Department in response to information put to him for comment.
As to the applicant’s frequent return trips to South Korea he only ever visited for short periods of time for the purpose of obtaining visa extensions, visiting family and preparing his marriage ceremony. If he returns to South Korea permanently the circumstances he will face will be radically different.
As to the delay in lodging the Protection visa, the applicant was not aware there was an option to apply for this visa when he and his wife arrived in Australia. They became aware of the option in 2014 when one of his fellow Jehovah’s Witnesses was granted protection. They did not lodge the application then because they could still remain in Australia safely on their current visa. They lodged the application when their current visa was approaching expiry.
As to whether the applicant still has military service obligations in South Korea the South Korean Military Service Act states that an individual who has routinely evaded enlistment in military service will be eligible for call-up compulsory military service up until the age of 38. Further, it times of war extension of mandatory service period can be up to 45 years of age. This indicates he has the potential to be called up for military service again until age 45 or indeed to any age according to Article 83(9)(2) of the Military Service Act. Additionally, it is submitted that the potential for war between North and South Korea is not hypothetical.
As to the applicant being issued with a passport with ten years validity all Korean citizens are issued a passport with ten years validity once they have completed the initial military service obligation or are released from imprisonment in the case of conscientious objectors.
As to the supporting letter from elders of the [Suburb 1] Congregation not referring to any threat of persecution the purpose of the letter was only to provide evidence of his Jehovah Witness faith.
As to the applicant’s previous work history in South Korea it is submitted that Jehovah Witnesses are routinely discriminated against in areas of daily life and employment. Discrimination towards individuals like the applicant is so prevalent that they are viewed by other Koreans as ‘traitors to their country’ and ‘people with a criminal record’. These labels follow them wherever they go. The vast majority of job applications have a section that requests whether compulsory military service has been completed. In an attempt to ascertain whether he had any prospects of employment in South Korea the applicant submitted applications to six companies and was not even able to get a single response. The work he found previously was always in the form of menial jobs or jobs which he only worked casually. He was never able to subsist with the income he received in those jobs and he was subsidised by his parents. Since then his father has retired and their own pension is not sufficient for them to subsist in Korea.
As to the applicant’s wife’s ability to work it is submitted that he cannot indefinitely depend on his wife for financial support as this contravenes social and religious norms. In any event she has little or no work experience and no higher qualifications. Also she herself is Jehovah Witness. Her former work in South Korea was with a company fun by fellow Jehovah Witnesses.
As to the applicant’s background it is submitted that neither he nor his wife are from wealthy backgrounds.
It is further submitted that the applicant will face serious harm for cumulative factors:
oThe possibility of further military service and imprisonment
oThe psychological harm from fearing further military service
oThe social ostracism and harassment he will face on a daily basis for not completing military service and being a Jehovah Witness
oBeing threatened everyday with the prospect of having no employment
oHis inability to subsist due to discriminatory practices, lack of familial support and no access to social security benefits.
Attached to the submission are the following documents:
oReference letter from Congregation of Jehovah’s Witnesses in Australia, dated [March] 2016.
oCertificate of job search activities, dated [September] 2015. This sets out job applications sent by the applicant after his release from prison in South Korea.
oA letter from the applicant’s father in law, dated [August] 2015. The applicant’s father in law is also a Jehovah’s Witness and sets out his belief that the applicant will encounter similar prejudice and hardship in South Korea.
oEvidence of [Scholarship] for study in [Country 2], dated April [2013].
On 21 June 2016, the applicant provided the following reports to the Tribunal:
·Document by the UNHR on ‘Conscientious Objection to Military Service’, 2012.
·Document by Amnesty International on conscientious objectors in South Korea, dated May 2015.
·News Article, dated 11 April 2013, about state of war in North Korea
·News Article (no date) about the state of war between North Korea and South Korea
On 15 January 2019, the applicant provided the following documents to the Tribunal:
·Five news articles on the treatment of conscientious objectors in South Korea.
·Reference letter from applicant’s previous employer in Australia
The applicants appeared before the Tribunal on 10 April 2019. They produced various documents for consideration by the Tribunal including:
-    Two news articles concerning the introduction of alternative service for conscientious objectors
-    Two articles from a Jehovah Witness website concerning the criminal records of conscientious objectors
-    A Human Rights Resolution on Conscientious Objection to Military Service (24/17) (8 October 2013)
By way of background the applicants testified that they are both citizens of South Korea. The primary applicant stated that he obtained a [Qualification in Subject 1] in Korea and later completed a [Qualification in Subject 3] in [Country 2]. Since being in Australia he has completed a [Qualification in Subject 2] and obtained a [Qualification in Occupation 4]. The second named applicant completed high school in South Korea and then completed a two year [course] in [City, Country 3]. She also studied [Language 1] for one year in [Country 2] and recently completed [a] course in Australia.
As to their work experience the applicant stated that he worked for less than a year for [Employer 1] in South Korea. After his release from prison he worked for about three years in a part-time capacity with [Employer 2] which was owned by a fellow church member. In Australia he has worked as [an Occupation 3 and 4]. He also operated his own [Occupation 4] business for about eight months. The second named applicant stated that she previously worked as [Occupation 5] in South Korea. She said the work was reasonably well paid and she was able to put together savings through this employment.
As to other family in South Korea the applicant stated that his parents, elder brother and his family reside in Ulsan City. His parents own their home and his brother lives with his family in separate rented accommodation. The second named applicant’s parents have lived in [Country 1] for seven years.
The applicants confirmed they are Jehovah Witnesses. They were both baptised by water immersion in South Korea and they regularly attend services and undertake missionary work which is expected of all Jehovah Witnesses. They are currently members of a congregation in [Suburb 2]. Both their respective families are also practicing Jehovah Witnesses.
When asked if they are free to practice their religion in South Korea, including performing their missionary work, they both agreed that there is freedom of religion in South Korea. When asked about their experiences living as Jehovah Witnesses in South Korea they said they generally haven’t experienced social bias or prejudice for this reason alone. They said the main issue is the requirement to perform military service. That said, the applicant described a situation which occurred when he was at [a] college. He said that some job opportunities arose in the airline industry but only students who had completed their military service were accepted.
Noting that the applicant has previously served a prison sentence for failing to do his military service the Tribunal asked him to explain what he fears on return to South Korea. He said that he now has a criminal record and he fears he won’t be able to find employment. He also said that that there is societal discrimination against people who refuse to complete military service and who have a criminal record. He said that this negatively impacts his dignity.
In the light of recent developments, the Tribunal asked the applicant whether he still fears the possibility of further imprisonment in the event he is recalled by the military and refused to do so. The applicant referred to a court decision in 2018 which now means that alternative service options will be available from 2020 for those not wanting to do military service. He said that it appears that if there is a war in future this alternative service option will be available to him. The Tribunal put it to the applicant that the news reports provided in submissions[1] indicate that the South Korean government is honouring the court ruling that alternative service options be made available to conscientious objectors and taking the necessary steps to provide alternative service options. The applicant agreed this is the case and expressed his relief about it.
[1] Yang Seung-sik, ‘Government Confirms Prison Service for Conscientious Objectors’, December 31, 2018, Yi Whan-woo, ‘Conscientious objectors to perform alternative duties’, The Korea Times

Notwithstanding the above, the applicant referred to a government decision to replace the term ‘conscientious objector’ with ‘religious objectors’ and indicated that this has caused controversy and shows the government is still biased toward conscientious objectors.
The Tribunal put it to the applicant that it accepts that the Military Service Act[2] places limitations on public sector employment for persons who failed to do military service. Further, the Tribunal indicated that it accepts the existence of a criminal record could limit his private sector employment options. Nevertheless, the Tribunal put it to the applicant that it appears there may be other employment options available to him such as self-employment, or employment with international firms given his ability to speak [Language 1] and English. The applicant responded that he tried to gain employment with private companies when he was applying for a protection visa. He said he submitted applications on-line but received no response from those employers. He said that the application forms had questions about military service and criminal history and he answered those questions honestly. The Tribunal notes the evidence produced by the applicant is that he applied for five positions in 2015.
[2] >
The Tribunal noted the fact that he was able to find employment after his release from prison and asked why he couldn’t repeat that if he returns to South Korea. He said that he could only work for Jehovah Witness owned businesses and he thinks that is discriminatory. Nevertheless he agreed that it is unlikely he wouldn’t be able to find any work at all.
The Tribunal also indicated that the second named applicant, who does not hold a criminal record, previously worked as [Occupation 5] in South Korea. The Tribunal suggested that she could return to this work if they return to South Korea and thereby contribute to their upkeep. She indicated that this is correct.
The Tribunal also noted that the applicant’s brother, who also was imprisoned for evading military service and has a criminal record, is nevertheless working and supporting his family in South Korea. The applicant agreed this is the case and advised that his brother is working in his uncle’s [business]. The Tribunal asked the applicant whether he could also work with his uncle in this business. He replied that he has never thought of that. The Tribunal also asked him if it is possible for him to work as [Occupation 5] in South Korea given his qualifications and he indicated that this may also be possible.
In view of the applicant’s responses to the above questions the Tribunal put it to him that it doesn’t appear he will be left without any employment opportunities at all if he returns to South Korea. The applicant agreed with the Tribunal’s assessment.
The Tribunal asked the applicant whether the recent court ruling and government initiatives in respect of conscientious objectors might not be a signal that community attitudes are beginning to change in South Korea. The applicant agreed that change has occurred and he said he is happy with those developments. However, he said he has a criminal record and the government hasn’t yet said anything about whether the criminal records of conscientious objectors will be removed. He said that if this happens he will be able to accept there is no longer any discrimination.
The applicants were asked if they have any other reasons for fearing returning to South Korea. The applicant replied no. The second named applicant stated that she was fired from a job in Australia by a South Korean owner when he learned she is a Jehovah Witness. She said that the same thing could happen to her in South Korea. She added that she would like to live in a country where there is no bias or prejudice against people of a certain religion.
FINDINGS AND REASONS
Country of reference
When the applicant’s appeared before the Tribunal they produced their Republic of Korea passports which verify their claimed identities and nationalities. In the absence of any information to the contrary the Tribunal is satisfied that the applicants are nationals of South Korea and has assessed their claims accordingly.
Fear of being further imprisoned on account of conscientious objection to military service/ Fear of harm on basis of imputed political opinion as an individual who is morally obliged not to support government policy in relation to performing military service/ Fear of harm due to membership of a particular social group of young South Korean males who are obliged by law to perform military service but who are prevented from doing so by their religious beliefs
The Tribunal found the applicants oral evidence to be credible. This together with supporting documentation satisfies the Tribunal that the applicants are Jehovah Witnesses, as are their respective families. The Tribunal is also satisfied on the available evidence that the applicant is a conscientious objector and that he served an 18 month prison sentence in South Korea in 2002/03 when he refused to undertake military service. The Tribunal also accepts that his elder brother was also imprisoned for the same reason. Also, based on the available information, including relevant country information, the Tribunal accepts the applicant may have found it difficult to find work due to not having completed his military service and/or for acquiring a criminal record. The Tribunal also accepts that the second named applicant’s parents immigrated to [Country 1] to avoid discrimination against Jehovah Witnesses in South Korea.
The Tribunal notes the submissions made above that the applicant could potentially be called up again for military service. Based on the information referenced in submissions, it is not entirely clear to the Tribunal that the applicant could in fact be called up for military service again given his prior sentencing, his age and the current security situation in the Korean peninsula. In any event, on 28 June 2018 the Supreme Court of South Korea ruled that religious faith is a valid reason to refuse military service and ordered a revision of the conscription law to allow conscientious objectors to serve alternative duty. Since then the government has finalised plans to make alternative duty to mandatory military service available from January 2020. Under the plan conscientious objectors will be required to serve 36 months at correctional facilities. Other alternatives under consideration are service at fire stations and welfare facilities. Further, on 30 November 2018 The Washington Post reported that South Korean authorities released 57 men from prison for refusing to perform mandatory military service on religious grounds[3]. Relevantly, when the above information was discussed with the applicant at hearing he agreed it is unlikely he will face further prison time due to being a conscientious objector.
[3] Min Joo Kim ‘South Korea releases 57 conscientious objectors after landmark ruling on military service’, The Washington Post, 30 November 2018
The applicant produced various news reports and articles in support of his claims at hearing. In these the Tribunal notes the highlighted references to the length of time conscientious objectors will be required to perform alternative service. The Tribunal acknowledges that this reporting indicates that some rights activists have complained that the 36 month service period is somewhat lengthy and punitive compared with the 18 months draftee’s serve in the Army or 20 months in the Navy. However, the Tribunal also notes from these reports that it appears the government is open to considering an adjustment of the period to 24 months once the new measures take root.[4] The Tribunal is mindful that the alternative duty proposed by the government is still evolving and finds it significant that the committee established to review the conscription law provisions is cognisant of the need to harmonise the length of time for alternate duty with the normal military service requirements of between 18 and 24 months.
[4] Yang Seung-sik, ‘Government Confirms Prison Service for Conscientious Objectors’, December 31, 2018, Yi Whan-woo, ‘Conscientious objectors to perform alternative duties’, The Korea Times; ‘Controversy swells over Defense Ministry’s terminology revision for “conscientious objectors”, January 8, 2019, ‘Alternative Service’ >
In the event the applicant returns to South Korea now or in the reasonably foreseeable future, the Tribunal accepts he will again refuse to perform military service if required to do so. However, based on his oral evidence the Tribunal is satisfied he would accept and be willing to perform alternative service in such circumstances and no longer fears being imprisoned for refusing to enlist. In the circumstances, the Tribunal is not satisfied that the applicant will suffer the psychological harm which is claimed from fearing further military service.
In view of the reporting currently available in relation to the proposed alternatives to military service, the Tribunal is satisfied the applicant will not be subjected to severe or punitive conditions in the event he opts to do so. The Tribunal is also of the view his willingness to comply with alternative service will also assist to mitigate any negative community sentiment directed at military service evaders.
For these reasons and given the recent changes to conscription law, the Tribunal is satisfied that there is not a real chance the applicant will suffer serious harm for reason of refusing to perform military service; for reason of imputed political opinion or for reason of his membership of the abovementioned particular social group, if he returns to South Korea now or in the reasonably foreseeable future.
Fear of discrimination and stigmatisation due to being a conscientious objector and for having a criminal record
Based on the above reporting and country information referenced in submissions the Tribunal accepts that persons who have not completed military service are restricted in accessing government employment. The Tribunal also accepts that having a criminal record can further limit a person’s employment opportunities in the private sector in South Korea. The Tribunal also accepts that segments of South Korean society hold adverse opinions about men who do not fulfil their military service obligations.
Notwithstanding this, the Tribunal finds it significant that the applicant was able to find work after his release from prison in 2003 working for a firm owned by a Jehovah Witness. Despite that the work may have been part-time he maintained this employment for 3 years. Also the applicant’s brother, who was similarly imprisoned and has a criminal record, is working in his uncles business. On the applicant’s evidence he is earning sufficient income to live independently of his parents with his wife and children.
Despite the submissions made on his behalf, the applicant agreed at hearing that it is unlikely he will find himself without any employment options at all if he returns to South Korea. He agreed there were possibilities for employment in businesses owned and run by Jehovah Witnesses and/or international companies where his language skills might be well regarded. Further, he recognised that it might be possible for him to utilise his [Language] skills working as [Occupation 5] in South Korea and he acknowledged he had not thought about the possibility of working alongside his brother in his uncle’s enterprise. Also, given her past work history the second named applicant conceded she could return to work as [Occupation 5] in South Korea. In respect of the latter the Tribunal finds it significant the second named applicant stated at hearing that the work was relatively well paid and she was able to amass some savings while undertaking this work previously.
While not discounting the applicant’s sense of injustice over his criminal record, the Tribunal is not satisfied that in the applicant’s particular circumstances any discriminatory treatment he might receive on account of this or his failure to complete military service, will result in him being unable to subsist if he returns to South Korea. While he may not have the same employment opportunities which are open to him in Australia the Tribunal considers the applicant is in a position to find some type of employment if he returns. Together with the fact his wife is also able to work the Tribunal is satisfied the circumstances they will find themselves in, even if access to social security benefits in South Korea might also be restricted, will not be so severe as to result in them being unable to subsist on return to South Korea. In forming this view the Tribunal has placed weight on the fact the applicant was previously able to find work after his release from prison and his elder brother is also working and able to support his family in similar circumstances. While it is submitted that the applicant’s former income after release from prison was insufficient to meet his needs, he has since obtained a degree [and] further qualifications and work experience in Australia which the Tribunal considers will enhance his opportunities for work in South Korea.
For the above reasons the Tribunal is satisfied that there is not a real chance the applicant will suffer serious harm on account of not being able to secure employment in South Korea for the reasons claimed.
Based on the applicant’s oral evidence, the above reporting and country information referenced in submissions, the Tribunal also accepts that persons who have not completed military service and who hold a criminal record can encounter a degree of stigmatisation and social ostracism in South Korea. When asked during the hearing what impact this will have on him should he return to South Korea the applicant merely said his dignity will be affected by such criticism and objectionable behaviour. The Tribunal has sympathy for the applicant’s feelings but is not persuaded on the available evidence that any harm he might suffer as a result of this will amount to serious harm as described at s.5J(5) of the Act or significant harm as defined in s.5(1) and s.36(2A) of the Act. The Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm on return to South Korea on account of any societal discrimination directed at him for reason of him not having completed his military service, for being a conscientious objector or for having a criminal record in connection with that.
Fear of discrimination and persecution on account of being a Jehovah Witness
As discussed with the applicants at hearing the available country information indicates that religious freedom is protected by the Constitution in South Korea. Article 11(1) sets out that all citizens shall be equal before the law, and there shall be no discrimination in political, economic, social or cultural life on account of sex, religion, or social status. Article 20 covers religious freedoms, stating that all citizens shall enjoy freedom of religion as well as that no state religion shall be recognised and religion and state shall be separated.[5] In South Korea, a person subject to religious discrimination can file a complaint with the National Human Rights Commission of Korea whose mandate includes investigation of religious discrimination.[6] More broadly, South Korea has effective justice and policing systems that offer protection against discrimination. In 2010 the Director of the Australian Watchtower Society advised the Tribunal that Jehovah Witnesses in South Korea enjoyed freedom of worship. He said that the South Korean branch was a large and active body with one of the highest rates of missionary work in the world. He wasn’t aware of any particular problem in relation to community treatment other than that associated with military service.
[5] Republic of Korea 1948, Constitution of the Republic of Korea
[6] National Human Rights Commission of Korea 2010, National Human Rights Commission of the Republic of Korea – Annual Report 2009
The Tribunal discussed this information with the applicants at hearing and indicated that, aside from the issues previously discussed in relation to military service, on the basis of their religion alone it doesn’t appear there is a real chance they will suffer serious harm if they return to South Korea. Relevantly the Tribunal notes that both applicants agreed there is freedom of religion in South Korea and both stated that generally speaking they haven’t experienced any social bias or prejudice purely on account of them being Jehovah Witnesses. The Tribunal notes the second named applicant’s fear that she might be fired from a job in South Korea if it is known that she is a Jehovah Witness however based on the above information should this occur she will be able to access avenues of redress for such discriminatory treatment through the National Human Rights Commission.
In view of the above the Tribunal is satisfied that there is not a real chance the applicants will suffer serious harm on return to South Korea purely due to the fact that they are Jehovah Witnesses.
Having considered the applicant’s claims both individually and cumulatively, and for all the above reasons, the Tribunal is not satisfied that there is a real chance that either applicant will suffer serious harm on return to South Korea for any of the reasons claimed. Therefore the applicants do not satisfy the criterion in s.36(2)(a) of the Act.
The Tribunal has also considered whether the applicants meet the complementary protection criterion under s.36(2)(aa) of the Act. For the same reasons already articulated the Tribunal is not satisfied that the primary applicant will suffer significant harm for reason of him refusing to undertake military service or due to discrimination and stigmatisation of conscientious objectors and/or persons who a criminal record. The Tribunal also notes that there is taken not to be real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that 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. In the event that either applicant encounters discrimination in employment or in other walks of life purely on account of them being Jehovah Witnesses, the Tribunal is satisfied that they will be able to access avenues of redress for such discriminatory treatment through the National Human Rights Commission.Accordingly, the Tribunal is satisfied that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to South Korea there is a real risk that they will suffer significant harm. Accordingly the applicants do not satisfy the criterion at s.36(2)(aa) of the Act.
The Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) of the Act for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c) of the Act. As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Tania Flood
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.
…

[2019] AATA 5431

30 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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