1610405 (Refugee)

[2019] AATA 3331

1610405 (Refugee) [2019] AATA 3331 (27 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1610405

COUNTRY OF REFERENCE:                   Korea, Republic Of

MEMBER:Tania Flood

DATE:27 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 27 February 2019 at 10:20am

CATCHWORDS
REFUGEE – protection visa – Korea – family disapproval of attending church and de facto partner – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65

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 on 29 June 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Korea, Republic Of (South Korea), applied for the visas on 17 November 2015. The delegate refused to grant the visas on the basis that the feared harm does not amount to serious or significant harm.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.  

7. 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

8. 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

9. 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 them being removed from Australia to South Korea there is a real risk they will suffer significant harm.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Summary of claims

11. The primary applicant states in her application for a protection visa that her family has been Buddhist for many generations.  When she was a child she went to church at Christmas and she was scorned by her mother and removed from the house for a few hours.  She could only return after promising she would never go to church again.

12. When she became a college student she wanted to attend church but again could not.  Therefore she came to Australia and has been attending the church freely without any worries.  Her family in South Korea do not know that she attends church.

13. In addition, her family in South Korea object to her relationship with her partner on the grounds that he is ten years older than her and only a high school graduate with no substantial wealth.  As her partner was not accepted they could not marry and so have been living in a de-facto relationship.

14. If she returns to South Korea she may not be able to attend church any longer and may have to live separately from her partner.  This would adversely affect her, her partner and their children. Placing physical distance between her and her family in South Korea will not make any difference.

15. The second and third named applicants are included in the application as members of the same family unit as the primary applicant without claims of their own.

    FINDINGS AND REASONS

    Country of reference

16. The primary and second named applicants have produced copies of their South Korean passports which confirm their claimed identities and nationalities.  The third named applicant is their Australian born son.  In a Part C, 866 form completed for the purpose of applying for a protection visa the third named applicant’s mother declared on his behalf that he is a citizen of South Korea.  On the available evidence the Tribunal is satisfied that the applicants are South Korean citizens and has assessed their claims against South Korea.

    Member of the same family unit

17. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that class as that applied for by the applicant.  Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.  Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition.  The expression is defined in r.1.12 of the Regulations to include a spouse and dependent children.  The Tribunal is satisfied on the evidence before it that the second named applicant is the primary applicant’s spouse and the third named applicant is the dependent child of the primary applicant.  The Tribunal is satisfied that the applicants are therefore members of the same family unit as defined in r.1.12.

    Is there a real chance or a real risk the applicants will suffer serious or significant harm if they return to South Korea?

18. The delegates decision which the applicants have provided to the Tribunal indicates that the primary applicant was scheduled to attend a protection visa interview with the Department on 21 April 2016 but declined to attend as she was aware that there was little prospect that her claims would meet the criterion for a Protection visa.  She indicated instead that she would like the chance to apply for Ministerial intervention in the future on the basis that she has a minor Australian citizen child.

19. As noted above, the applicant similarly declined to attend an interview with the Tribunal and again expressed the view that she would like to apply for Ministerial intervention in the future.

20. The primary applicant claims that her family in South Korea has and will object to her attending church services and this will restrict her ability to attend church if she returns to South Korea.  Further, she claims that her family do not accept her partner and she may have to live separately from him if she returns to South Korea. Apart from these claims which are outlined in their entirety above, there is no other information available to the Tribunal.

21. The primary applicant has provided very scant information about her claimed religious practice.  She has not indicated which church or religious denomination she has or is interested in attending in South Korea and nor has she provided any information to support that she has or is attending any church in Australia.  Other than her own brief claims there is also no information before the Tribunal to support that her family have or continue to object to her relationship with her partner. 

22. The Tribunal considers there is insufficient evidence to be satisfied that the events and circumstances raised by the primary applicant are factual.   The Tribunal is not prepared to accept on the available evidence that the primary applicant encountered any problems from her family in South Korea on account of her religious beliefs or practice or her current relationship with her partner.  Nor is the Tribunal prepared to accept that she would face any serious or significant harm from her family or indeed anybody else for the reasons claimed or for any other reason.

23. In arriving at the above conclusion the Tribunal has also placed weight on information contained in the delegate’s decision which indicates that the primary applicant arrived in Australia [in] October 1997.  She held numerous student visas over the years before applying for a [student] visa on 14 March 2008 which was subsequently refused on 26 March 2009.  On 24 April 2009 she became an unlawful non-citizen and only lodged an application for a Protection visa on 17 November 2015.  The applicant has provided no information to explain the long delay in applying for a Protection visa and in the Tribunal’s view the lengthy interval between her arrival in Australia and applying for protection also casts doubt on her claimed experiences in South Korea and her stated reasons for fearing returning to South Korea.

24. In the circumstances, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm for reason of her race, religion, nationality, membership of a particular social or political opinion, if she returns to South Korea now or in the reasonably foreseeable future.  The Tribunal finds she does not have a well-founded fear of persecution and therefore does not meet the criterion set out in s.36(2)(a) of the Act for a protection visa.

25. Similarly, for the same reasons already articulated the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the primary applicant being removed from Australia to South Korea there is a real risk she will suffer significant harm.  Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa) of the Act for a protection visa.

26. The Tribunal is not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act. The remaining applicants have not made any claims for protection in their own right and are included in the application as members of the same family unit as the primary applicant.  As such, the fate of their applications depends on the outcome of the primary applicant’s application and given the Tribunal’s findings above it follows that the other applicants will also not be entitled to protection visas.

    DECISION

27. 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.

    …