1611485 (Refugee)
[2018] AATA 4213
•14 August 2018
1611485 (Refugee) [2018] AATA 4213 (14 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1611485
COUNTRY OF REFERENCE: Republic of Korea (although claimed as Democratic Republic of Korea)
MEMBER:Christine Cody
DATE:14 August 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
STATEMENT MADE ON 14 AUGUST 2018 AT 9:27AM
CATCHWORDS
REFUGEE – Protection Visa – Republic of Korea – Claimed as a national of Democratic Republic of Korea – Grant of Ministerial permission to lodge the protection visa application – Social group – North Korean woman at risk of family violence – High profile North Korean defector – Political opinion – Opposition to the North Korean regime – State protection not available – Secondary applicant – Child at risk of family violence – Child of North Korean parent – Credibility issues – Delay leaving for Australia – Inconsistent evidence provided – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5AAA, 36, 65, 91, 424A, 425, 438, 499
Migration Regulations 1994, Schedule 2
CASES
HG v The Queen (1999) 73ALJR281
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155 at 169‑70
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
SUMMARY
This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act). The applicants were represented by a number of registered migration agents in their engagements with the Department of Immigration. In relation to their application for review with the Tribunal, the applicants were for the most part represented by their registered migration [agent]. The applicants provided numerous written submissions and documents to the Department and the Tribunal.
The applicants, a mother and daughter, arrived in Australia on 16 September 2014 as the holders of [temporary] visas granted on the basis of their South Korean (ROK) citizenship and passports.
On 27 October 2014, the first named applicant (hereafter referred to as “the applicant”), applied for a protection visa, claiming to be a national of the Democratic People’s Republic of Korea (DPRK) (“North Korea”). She included the second named applicant (her daughter) in the application as a member of the family unit (not as a primary applicant making claims). The letter accompanying the application from her then agent, [Agent 1], said that the applicant is a North Korean national and thus she could be considered a dual national of North Korea and South Korea. As her application could be declared invalid under s.91P of the Act, a request was made under s.91Q of the Act[1] to allow her to lodge a valid protection visa application on behalf of herself and her daughter.
[1] [Agent 1] letter indicated that they would be unable to represent the applicant further.
By way of letter dated 4 November 2014, the applicants were advised by the Department that the application was determined to be invalid (s.91P of the Act) as the applicant is a dual national of North Korea and South Korea. Her daughter’s application was invalid as she was claiming as a member of the family unit of her mother whose application has been found to be invalid, she was not a member of the family unit of a person making a valid application for a protection visa. The Department acknowledged the request pursuant to s.91Q for the Minister to intervene to permit a valid application to be lodged and requested that any further information in support of that application be provided.
[Agent 2] were engaged and provided a submission dated 16 December 2014. By way of letter dated 27 November 2015, the applicants were advised by the Department that they were permitted to make a protection visa application.
The delegate held an interview with the applicant and refused to grant the visas on 19 July 2016. An application for review was lodged to the Tribunal.
The Tribunal has before it the Tribunal file as well as the following Departmental files:
· [File number 1]: the file containing documents relating to the grant of Ministerial permission to lodge the protection visa application.
· [File number 2]: the file relating to the Ministerial approval to lodge a protection visa application pursuant to s.91Q of the Act.
· [File number 3]: the file refusing the applications for protection visas.
The applicants appeared before the Tribunal on 11 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. The applicant was accompanied by a support person and her agent. This hearing was not completed in the first sitting, and was adjourned to 22 December 2017. The applicant sought a postponement of the adjourned hearing date. The Tribunal agreed. A further hearing was held by telephone on 1 February 2018. After that hearing a s.424A letter was forwarded to the applicants; a request for further time to comment and/or respond was sought and granted. A significant amount of documentation, submissions and reports were provided to the Tribunal.
For the reasons set out below, the Tribunal has decided to affirm the decision under review in relation to both applicants.
CONSIDERATION OF CLAIMS AND EVIDENCE
Departmental file [File number 2]
The submissions from [Agent 1] dated 27 October 2014 attached two protection visa application forms on behalf of the applicants, as well as a statutory declaration of the applicant sworn 27 October 2014 (“first statement”), and supporting documents including pages from the applicants’ passports.
The applicant’s first statement and application form
The applicant’s background and claims as sourced from her application form and her first statement can be summarised as follows:
· The applicant is [an age] year old woman, born in [year] in [South] Hamgyong province, DPRK.
· She speaks, reads and writes in Chinese and Korean. Her ethnicity is Korean and she has no religion.
· She was educated and lived in North Korea until September 1997.
· Her father was a [member] of the local branch of the Workers Party, and her mother was [an occupation]. She has a [brother] with whom she has had no contact. She has had contact with her [sister], whom she believes lives in South Korea.
· During the great famine between 1994 and 1997, her family was unable to obtain food and necessities for survival. Her parents passed away from starvation in 1997. She left home to search for work. She met a man who took her to China in September 1997 against her will; he was a human trafficker. She was sold to a man for [an amount]; he abused her physically and sexually and in 1998 she tried to commit [suicide], she does not recall exactly when because this is a painful memory. She was taken in by a Chinese couple who told her if the police caught her she would be returned to North Korea and harmed.
· In October 1998 she left the Chinese family and obtained work [in] [a location]. She wanted to obtain enough money to obtain a Chinese Family Register to have legal status in China and not be returned to North Korea.
· In March 2000 she gave all of her money to a man who promised he would obtain the Chinese register for her. However, he was unable to, and instead he arranged for her to go and live with a businessman in South Korea. She agreed to do so because she was fearful that if she remained in China she would be caught, although she also feared that in going to South Korea she would be sent to political prison and considered an enemy of the state.
· She remained in China until January 2001. She travelled to South Korea and was taken by a man [(“YL”)] to a rural area. She does not know the name of the place where she was taken. She lived with him and his family, and he subjected her to violence and physical abuse.
· In about April 2001 she approached the police and asked for protection. She was detained for three months and interrogated by the police, National Intelligence Service (“NIS”), and Defence Security Command, as they thought she was a spy.
· Thereafter, instead of being sent to the Hanawon Education Centre for North Koreans, she was placed in the custody of YL, who has relatives and connections in the police force. She was subjected to repeated instances of violence and sexual abuse.
· In late July 2001 she was able to escape to Cheongju-si, Chungcheongbuk-do, where she lived independently in a small apartment.
·In September/October 2001, YL’s relatives in the police force found her and informed him of her location. He would come and visit her; every time he would beat her, threaten her with a knife and sexually abuse her. He would tell her that he bought her and she was his property, and that he would never let her live without him. She did not report him to the police again.· She discovered she was pregnant in [2001] and went to have an abortion. However as she had lost her wallet, the police were called. They attended with YL and she was forced to return to her apartment with him.
· In early 2002 she was assisted by a welfare agency to find a job as a Chinese interpreter in a [place] that was popular with Chinese tourists. YL would take her to work and threaten that if she talked to other men he would kill her. He would pick her up from work and take her home to rape her. All of her neighbours were aware of her suffering but they made no attempt to contact the police.
· In October 2006 she learned she was pregnant again. She was forced by YL’s family to marry him. They had a marriage ceremony but she did not register the marriage, instead she registered as a single mother. She gave birth to her daughter, the second applicant, on [date].
· [In] March 2004 she commenced studies at [a university]. According to her Certificate of Graduation she obtained her [qualification in] 2010.[2]
[2] DF48.
· She did not work between February 2004 (when she stopped working as a Chinese translator [and] started studying for her Bachelor degree) and March 2009 (after her degree was completed).
· Throughout her studies and work, YL harassed her, sexually abused her, threatened her with death and demanded that she give him money.
· She maintained a blog and in 2006, while at university, she wrote some blog posts about how she did not like the then President of South Korea, Roh Moo Hyun, because he was a salesman and not a president and he was not taking South Korea in the right direction. She wrote about how she wanted the two countries to work towards peace and about the culture, songs, economy and women of North Korea.
· She discovered that her blog was placed on the blacklist of a Conservative ROK group so she changed her post to private as she was scared of what might happen to her or her daughter.
· She was separated from YL in Seoul in May 2008.
· After her studies finished in 2009 she was able to get work as a civil servant; she obtained an internship in March 2009 at [a workplace], where she worked until November 2009.
· About 15 days after she obtained her job, the NIS called her and said they knew all the details about her new job. The officer wanted to meet her but she refused.
· In May 2010 she was employed as a civil servant assisting North Korean defectors resettle in South Korea. She realised that she was given the job as part of a publicity campaign to show that North Korean defectors were proud to renounce North Korea, and be part of and work for South Korea. She was under constant surveillance by her colleagues and by the NIS, both in and outside of work hours.
· She started studying [another course] [in] August 2010 at [another university] and she obtained her degree [in] February [2013].
· She continued to endure surveillance at work and outside work as well as the continuing rape, violence and threats from YL. She felt helpless as she knew she could not get assistance.
· She attended [an event] protesting for peace in November/December 2011, and was followed outside when she went to take a phone call. She believes that the person who followed her was linked to the NIS; he listened to her conversation and followed her back into the [event] and then followed her home.
· She was made redundant from her job as a civil servant in April 2013, after a North Korean defector (Yu Woo Sung) who also worked as a civil servant was prosecuted for espionage.
· The threats and violence from YL intensified because she no longer had a lot of money to give him. He threatened to kill her with a knife in front of her daughter and that he would follow her anywhere she tried to run.
· In September 2013 he abducted their child and only returned her after the applicant promised to follow all of his orders. Until she left South Korea in September 2014, he would come visit her and threaten to kill her unless she gave him money and had sexual relations with him.
· Recounting these experiences has been traumatic for her and has led to a significant deterioration in her mental state. She suffers from PTSD which condition has worsened as she has had to reflect on her bad experiences of the past and share them. She has been taken to hospital for mental health assistance during the period of drafting the statement because she has been so traumatised (there was no hospital discharge information provided).
· She obtained a [temporary] [visa], and she came to Australia with her daughter [in] September 2014.
· Her past country of residence/ travel before coming to Australia includes North Korea from [year] until 1997, China between 1997 and 2001, and South Korea until [September] 2014.
· She fears returning to North Korea because she is defector, and will face punishments including as imposed by law such as years of forced labour and possible imprisonment and death.
· She fears returning to South Korea because her daughter’s father will physically and mentally harm her and her daughter. As her daughter’s father has [connections] in the police force, she cannot trust the authorities to protect her from him and she would not be able to go anywhere without them finding her. Further, she will be subjected to surveillance and possible detention and she will be seriously physically and mentally harmed by the South Korean authorities because of her status as a North Korean defector. There is nowhere she can be safe in South Korea.
The second applicant – application form
This application form signed 27 October 2014 was a Form D “Application for a member of the family unit: … for a member of the family unit who does NOT have their own claims for protection, but is included in this application”. The form included information that the second applicant was born in Chungcheongbuk-do. She speaks Korean. Her ethnicity is Korean. She attended [school] for [a period of time] in South [Korea]. It also stated that her only travel outside South Korea was to come to Australia.
Passports
The applicant’s passport was issued by the South Korean authorities [in] 2013. Stamps in the passport show that the applicant:
· Obtained a Chinese visa with permission to remain for 30 days in 2013. She left South Korea [in] July 2013, travelling to China on the same day.
· She was also granted landing permission in [Country 1] for 90 days, from 18 August 2014 until 16 November 2014. She travelled to [Country 1] in 2014.
· She left South Korea [in] September 2014, arriving in Australia on 16 September 2014.
The child’s passport was issued by the South Korean authorities [in] 2014, showing that she is a South Korean national. Stamps in the passport show:
· She was also granted a landing permission in [Country 1] for 90 days, from 18 August 2014 until 16 November 2014, and she travelled to [Country 1] in 2014.
· She left South Korea [in] September 2014, and arrived in Australia on 16 September 2014.
[AGENT 1] Submissions 27 October 2014
The submissions summarised the applicant’s statement and referred to country information supporting the claim that defectors returning to North Korea face punishments.
[Agent 2] submissions dated 16 December 2014
The letter from [Agent 2] dated 16 December 2014, in support of the applicants’ request for the Minister to exercise his public interest power under s.91Q of the Act, submits that:
· The applicant has raised credible protection claims against all of the countries of which she is a national.
· She fears that if removed to North Korea, she will be persecuted because of her perceived political views (opposition to the North Korean regime) as well as her membership of a particular social group (defectors from North Korea). It is stated that she is particularly at risk in this respect because of her high profile (and publicised) employment in the South Korean civil service.
· Concerning South Korea, she fears persecution because of her perceived political views (opposition to the South Korean government, support for the government of North Korea), her nationality (North Korean) and her membership of a particular social group (defectors from North Korea). She fears she will be persecuted by way of prosecution under South Korea’s National Security Law by reason of her perceived political views, nationality and identity as a defector from North Korea. She will face greater risks in South Korea because of her unique particular circumstances, including a previous high profile role as a defector in public employment (and utilisation to this effect as an instrument of propaganda by the Grand National Party (Hannara-dang), now known as the Saenuri party or Saenuri-dang, the governing party of South Korea), her friendship with Yu Woo Sung and her existing vulnerability from YL.
· Further, she will not be able to receive protection from the South Korean government from serious physical harm because she is a woman, a North Korean woman, and a North Korean woman at risk of family violence (particular social groups).
· The cumulative effect of her claims must be considered.
·Her perceived political views arise from:
oHer family had high standing in North Korea and she continues to have relatives who are high-ranking officials in North Korea, including in the army.
oThe blog on which she made criticisms of Lee Myung-bak, South Korea’s president and candidate of South Korea’s Grand National party (which has since become the Saenuri Party) and the South Korean government, and advocated greater ties between North Korea and South Korea. She described North Korean culture. Her post may be perceived as praise for North Korea. The publicity attracted by this blog is referred to in an article she has produced (referred to below).
oAttendance at a protest event advocating peace between North Korea and South Korea.
oHer friendship with Yu Woo Sung, who was arrested and tried on charges of espionage for North Korea. [Details deleted]. In the past, she has been questioned by state officials about her connections with Yu Woo Sung.
o[Details deleted]. She remained under surveillance from South Korean security agencies, even after her dismissal from public employment. She would meet with these officials in public places where she would be questioned about her activities and contacts, including whether she was in contact with her family in North Korea. Her high profile position has attracted far more scrutiny than she would otherwise have faced and her political views are likely to attract particular ire and increased risk of persecution, because of her prominent role.
· Although it is admitted that she is a citizen of South Korea (by virtue of South Korea’s territorial claim to the region internationally recognised as North Korea), her North Korean nationality will nonetheless cause her harm if removed to South Korea.
· It is submitted that the law of general application does not apply to South Korea’s National Security Law, and she fears persecution by being prosecuted under that Act. It is submitted that the law is applied in a disproportionate, arbitrary and excessive fashion, in a manner which discriminates against individuals who hold certain political beliefs. The law has been described as a blatant violation of international human rights standards; violating the International Covenant on Civil and Political Rights.
· She fears that if she is removed to South Korea, she will be imprisoned and potentially sentenced to death. South Korea retains capital punishment. Further, she fears that the state will not protect her against YL, and indeed that it would return her to living with him, as has happened before. It is submitted that due to denial of access to basic services, police and state protection measures she will be unable to subsist (in terms of survival or continued existence). YL is the father of the child. He has previously committed abuse against and sexually assaulted the applicant. She continues to take anti-depressant medication as a result of her experiences.
· North Koreans face severe discrimination in South Korea. They are subjected to abuse, violence and threats of deportation while they are in the Joint Interrogation Centre. There are intense and highly secretive interrogations. North Koreans are also subjected to discrimination by South Koreans.
· Under South Korea’s National Security Law, posting pro-North Korea messages online is illegal (Freedom House) and she fears that she will be perceived as a North Korean spy (illegal under the National Security Act) especially as a result of her repeated interrogations by South Korea security officials and the suspicions aroused by her friendship with Yu Woo Sung. His case is relevant for a number of reasons. It shows the extent of the South Korean government’s paranoia about the loyalties and motivations of the North Korean population of that nation, to the extent of fabricating evidence to back these unfounded suspicions. Secondly, he was also an unusually high profile defector by reason of his subsequent employment in the South Korean public service, having been used, like the applicant, as a propaganda tool by the regime. He spoke about his frustration with the government and expressed hope for reunification. Further, the increased scrutiny upon defectors in public sector employment (corroborated by an article in the Washington Post (not about the applicant)) exposed her to mounting discrimination and harassment, including but not limited to the loss of her job. The applicant’s friendship with him has caused her loyalties and political beliefs to be similarly impugned and viewed with suspicion, in light of the high level of publicity attracted by Mr Yu’s trial.
· It was submitted that as a woman she will not be able to receive protection from the South Korean state, and that there is stigmatisation in single-mother-headed families. She was trafficked into South Korea upon the payment of a fee by YL. She had already attempted to avail herself of state protection against his mistreatment in 2001. Instead of receiving protection, she was reported to the NIS (on suspicion of espionage for North Korea) and released back to YL who continued his horrific abuses against her. Country information was referred to, including in relation to domestic violence in South Korea. It was stated that the legitimacy of the family is dependent upon being headed by a father, without him the family cannot operate as a complete element in society. Households without fathers, like that of the applicant and her daughter, are stigmatised. Single mother headed families have been recognised as an illegitimate family structure in Korean society.
· She would not be able to relocate because YL has been abusive for more than 13 years, even after she attempted to escape in the past, and because he has connections.
Supporting documents/material provided to the Department
The Tribunal noted that there were untranslated copy documents on the Departmental file, subsequently translations of only some of the copy documents had been provided. The Tribunal’s acknowledgement of review letter confirmed that English translations of documents upon which the applicants seek to rely should be provided together with the documents. In response, the applicant provided translations of five of the copy documents by way of letter dated 12 August 2016. The Tribunal had raised with the agent at the first hearing in October 2017 that there were untranslated documents on the file; the Tribunal had sought confirmation that it was in possession of translations of all relevant documents; the agent did not then (or thereafter) clarify this. In the post second hearing letter to the applicant, the Tribunal stated that it would assume that there is no other relevant document which remained untranslated unless advised otherwise. There was no direct response to this, other than the production of a translation prepared after the second hearing of a document called “Family residential registration papers”, which was asserted to have been provided earlier. It was not however possible that the translation was provided earlier, given that the date of the translation was after the date of the second hearing (the untranslated document however had previously been provided to the Department). No further translations were provided except for this document, post second hearing.
Although other documents had been provided to the Department untranslated, despite subsequent opportunities to provide translations or to inform the Tribunal at the first hearing or thereafter that they wanted to rely on untranslated documents, or that they wanted the Tribunal to organise for the translation of any documents, they did not do so. The Tribunal considers, in all the circumstances that the applicants have had the opportunity to provide all relevant translated documents upon which they seek to rely and that they do not rely upon untranslated documents. Set out below are the translations provided. The Tribunal has also listed below the documents (described by the agent in submissions in English) which have not been translated, and has considered whether (on the face of their description in English) they could assist the applicants in supporting their claims. All documents provided were copies, not originals.
Translations of copies of documents provided in support of claims:
· Application for a Confirmation of Educational Background dated [August] 2003 in South Korea which provides a resident registration number [and] states that the applicant completed certain education in North Korea. It provides her address as [Cheongju-si], Chungbuk.
· Confirmation of Registration of Resident Escaping from North Korea dated [December] 2013 in South Korea for the applicant stating that the “date of entry” was [date] March 2001 and that the “date of determination of protection” was six weeks later on [date] May 2001.
· Identification certificate dated [September] 2014 in South Korea provides the resident registration number, her “street name and [address]” as at [December] 2011 as [Gyeonngi-do]. It states her birthplaces as North Korea, her date of acquisition of South Korean nationality as [date] June 2001 approved by Seoul Family Court on [date] June 2001.
· Family Relation Certificate also dated [September] 2014 which provides same resident registration number, same registered address as the identification certificate, and lists her family members as her parents and child, and the applicant’s family origin as North Korean. It was submitted that this supports that she was a single mother.
· Notification of the Termination of Employment Contract from a governmental office thanking her for her “great efforts” for the development of [deleted] and the welfare of its residents and stating that they are “heartbroken to inform you that you are no longer able to work”, for reasons set out in her contract as her employment period expired [in] April 2013 and there is a limitation in the allocation of jobs in sensitive areas (such as in relation to the personal information of North Korean defectors).
· A “Korean article” dated 10 May 2005 together with an English translation. The article discusses some bloggers on a pro-Communist influence list that caused crisis on the Korean Peninsula. A list of blogsites was included; one was circled: [web address deleted]. Neither the article nor the blogsite identified the applicant’s name. It was submitted that the article identified and criticised the applicant’s blog, which corroborates her claim to have been engaged in politically controversial blogging.
· Family Residential Registration Papers dated [February] 2014 (as mentioned above, translation provided after the second hearing). This records that there was “no change in resident registration number” and it records her addresses in South Korea from [June] 2001 “newly registered” until [February] 2014.
Other copies of documents provided with the December 2014 submissions, but never subsequently translated, were described in the submissions as follows:
· A document showing the applicant being appointed to the South Korean civil service.
· A Single Mother Certificate dated [February] 2014.
· [A series of text messages all of which appear to have occurred on 23 November 2014, appearing as a computer printout] which the applicant instructs are exchanges between herself and Yu Woo Sung, discussing their use as pawns for political gain, the risks she faces if returned to South Korea, state control of the press, surveillance in South Korea, and Yu Woo Sung’s arrest and ordeal at the hands of the South Korean authorities..
A further document provided with the December 2014 submissions was a medical report dated [December] 2014 prepared by a [Professor], discussed further below.
Departmental file [File number 3]
On 10 March 2015 a Form C was lodged on behalf of the second applicant. This form indicated that the second applicant was not just claiming to be a member of the family unit of the mother; instead she was lodging her own protection visa application form. It was claimed that if she returns, the child will be subjected to family violence because she is a child at risk of family violence and her status as a young girl will increase the risk. She will be at risk of discrimination and harassment because she is a child of a parent who was born in North Korea, and she faces that risk from the general public as well as from her father.
Further, if the applicant is detained, then the child may be seriously harmed and denied effective protection because of her membership of a particular social group of the applicant’s family. Further details may be given later.
This file also contains a copy of the recording of the interview with the applicant, notes made by the applicant which were provided to the Department, the delegate’s decision record (referred to below), and copies of other documents contained in the other files.
The delegate’s decision record
The delegate was satisfied that the South Korean passports produced were genuine and indicated South Korean nationality. The delegate was not satisfied that the applicant had been born and raised in North Korea, when considering the lack of knowledge showed at interview, and noting that the knowledge she did have could have been learned. The delegate did not accept her claims to be a North Korean national to be credible. Further, the delegate considered it implausible that she was professing to be seen by the South Korean authorities simultaneously in a positive and negative light, and found that she had fabricated the claim to have been working for the government while being of adverse interest to them. The delegate considered that the applicant could have possibly (as a South Korean) had a temporary contract with the government which had come to an end and was not renewed. The delegate did not find her evidence in relation to her claimed association with Mr Yu to be credible, and was not satisfied that the applicant had been made redundant by the South Korean government on account of her claimed affiliation with him or more generally of being suspected to be a North Korean spy were credible. Further, the delegate did not accept that the applicant, who claims to have had a profile with the South Korean authorities that warranted an investigator, was simultaneously allowed to leave South Korea, return, and legally depart again. It was found that her claimed adverse profile contradicts the South Korean authority’s apparent awareness and facilitation of her intention to travel. The delegate was prepared to accept that she had had a difficult relationship with her partner with domestic violence, it noted that they had been separated in South Korea and he did not seek to pursue her, so the delegate did not accept that she faced harm as claimed. The delegate also referred to country information relevant to the availability of and access to state protection in South Korea. Further, it was reasoned that as she had returned to South Korea after her trip to [Country 1], this undermined her claimed fear and adverse interest, and her holidays undermined her claims of job loss and financial strain.
The delegate considered that neither applicant was entitled to a protection visa.
The Tribunal file
The applicants provided a copy of the Department’s notification of refusal of the protection visa applications; documents, submissions and a second statement of the applicant. In that second statement, the applicant expanded upon some claims/history. She confirmed that YL told her that she was only in South Korea because he paid for her; and he demanded money from her. When she went to the South Korean authorities to report him they thought she was a North Korean spy and they detained her for three months where she was questioned and then forced to return to YL. She was the first North Korean to work for the [government] and this was reported on in the press (no press reports were provided). The South Korean government had been driving her crazy and giving her “a mental problem”.
Her daughter does not want her to work in the public service again. She takes her daughter to and from school in Australia. She has had severe depression while in Australia and took medication but there were side effects so she stopped. She had suffered a lot in Australia but now receives help from the counsellor. She was offered the service but did not want to see them weekly. She has learnt breathing techniques. She is concerned about privacy for herself and daughter and does not trust. She believes that she has been followed on a number of occasions.
She felt outcast and bullied in South Korea and stated that if people are honest they are branded an outcast.
If she returned to North Korea, the North Koreans would see her as a spy for western governments and she would fear war between North Korea and the United States.
As noted above, the applicant attended two hearings. After having left the second hearing, she declined an offer of a third hearing. Relevant evidence and information is referred to below.
FINDINGS AND REASONS
Credibility concerns
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant: (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).
First credibility concerns
The Tribunal had numerous concerns with the credibility of the applicant’s claims arising from inconsistencies between the claims and her behaviour/actions and evidence. This included her characterisation at hearing of her relationship with YL as that of a joint decision-making couple, while having claimed earlier that she was a victim of trafficking and effectively his prisoner. Similarly, her travel in and out of South Korea for holidays prior to coming to Australia, as well as her delay in coming to Australia, was inconsistent with her claims of having been targeted and effectively imprisoned and controlled by the man who “owned” her and consistently targeted her, as well as with her claims that she was afraid of and targeted by the South Korean authorities because she had a profile of significant adverse interest. The concerns are set out in more detail below.
Claimed adverse interest from the South Korean authorities/ her partner; travel to China and [Country 1]; and delay in leaving for Australia
Firstly, the Tribunal was concerned that the applicant’s claims to be of adverse interest to the South Korean authorities were inconsistent with her claimed actions. The applicant claimed that she was a North Korean defector; and that ever since 2001, the South Korean authorities were suspicious of her, believed she was a spy, monitored her, were aware that she had engaged in “politically controversial blogging” and other activity. She had claimed to have worked in a civil service position (2010–April 2013) in a high security area having confidential information which, if she disclosed it, she could be punished.[3] She had actually lost that government job as a result of another North Korean defector, who was in a similar position of being in the South Korean civil service and was accused of being a spy. She also claims that she will be prosecuted or put in prison by South Korean authorities. However, the Tribunal noted that the authorities had plenty of opportunity (since 2001) to prosecute or imprison her, yet they did not do so. Instead, the authorities provided her with passports for her and her daughter, allowed her to leave the country three times (China, [Country 1] and Australia) and she had returned twice to South Korea (from [Country 1] and China), without claiming that she had even been interrogated about her overseas travel.
[3] Second statement.
The Tribunal put to the applicant that the above appears inconsistent with a claim that she is of adverse interest to the South Korean authorities and believed to be a spy, a person they did not trust, in possession of confidential information gleaned from her civil service job.[4] She responded that the South Korean and North Korean governments are still confronting each other, they are at war and wherever there is an opportunity, and whenever there is an election, they will use North Korean defectors, who can be targeted at any time for political purposes and be discriminated against and their human rights are violated even though on the surface things look different to this. She also claimed that Yu Woo Sung had also been allowed to travel. The Tribunal did not find her responses to be persuasive. It considers that the significant time during which she was able to study, work, reside in South Korea, obtain passports and travel freely in and out of the country, never having been detained for political questioning during the 13 years after having been granted status in 2001, nor having been arrested or imprisoned or prosecuted, especially after Yu Woo Sung’s problems and arrest and especially after she lost her job but was suspected to be a spy (who was in possession of sensitive confidential information), undermines the claims of adverse interest in her by the South Korean authorities, that she was friends with Yu Woo Sung and considered to be in a similar position to him, and her credibility.
[4] Country information (also noted by the delegate in the decision record, p9), indicated that “The NSL [National Security Law] criminalises actions interpreted to be in support of North Korea or otherwise against the state. The government used this law to arrest and imprison civilians, deport foreigners, and disband political parties. The Supreme Court ruled in May that the NSL is constitutional….. The National Intelligence Service (NIS) has the authority to investigate crimes or criminal activity related to national security and subversion. Civil society organisations continued to claim that extensive NIS powers and secrecy combined with little oversight enabled the NIS to unreasonably and expansively define and investigate activities it deemed a threat to national security”.
Further, apart from the actions of the South Korean authorities, it was put to the applicant that her holidays to China and [Country 1] in 2013 and 2014, and her voluntary return on each occasion to South Korea, appeared inconsistent with her claimed fears of dangers from a variety of sources in South Korea, as discussed below.
The Tribunal noted the applicant’s claim that the South Korean authorities will use, discriminate against, and violate the human rights of North Korean defectors such as the applicant, targeting them at any time, and that she faced danger. The Tribunal asked the applicant whether this meant that things were bad in South Korea, whether she was always at risk of harm from different sources, and she replied “yes, all the time we are exposed”. The Tribunal put to her that the specifics of her travel history appeared inconsistent with her claim that she was always at risk of danger and harm. It noted that after her Australian visa was granted on 5 August 2014[5] she did not leave South Korea. Instead, she spent a further five weeks in South Korea, and during that five week delay in travelling to Australia, she even left South Korea to take a holiday to [Country 1]. Her passport showed that she was issued with a permission to travel to [Country 1] on 18 August 2014; she travelled there from 18-21 August 2014,[6] returning to South Korea, a place where she claims that at any time she could face serious or significant harm. Thereafter, she only left South Korea to travel to Australia on 16 September 2014, some five weeks after her visa was granted. The Tribunal was concerned that her actions and delay appeared inconsistent with her claims of imminent danger of persecution, arrest and prosecution by the authorities.
[5] According to Departmental records.
[6] Post hearing submissions p10.
The applicant replied that she is not a criminal, she has lived an honest life in South Korea and if they had any worries about her character, she would not have had the government position. Her explanation that the authorities did not have an adverse view of her undermines her claims that the authorities did have grave concerns about her character (suspecting/ believing for many years that she was a spy, continuously monitored) and that she was always, at any time, at risk of harm (because she was always of adverse interest) from the authorities. The explanation is inconsistent with her claims that she faced, and faces, a real chance of serious harm or a real risk of significant harm because of her claimed profile and circumstances. The Tribunal considers that this undermines her claims that she was a high profile North Korean defector of significant adverse interest to the South Korean authorities ever since 2001, and undermines her credibility.
The applicant also responded to the Tribunal’s concerns about her choice to take holidays and to delay leaving for Australia by saying that “things” can change rapidly at any time. The Tribunal noted that this was the very point of its concern; namely that if her claims were to be accepted, she constantly, at any time, faced serious, significant harm; which appeared inconsistent with her holidays and returns to South Korea, and her delay in leaving South Korea for Australia.
For the same reasons, the Tribunal had a number of concerns about the applicant’s choice to travel to China one year before she travelled to [Country 1], also for a holiday, shortly after losing her civil service job because of their suspicions of her, and her return to South Korea, given her claims of continuing, long-term targeting and monitoring by the authorities.
The Tribunal also put the information about her travel history and delays to the applicant pursuant to s.424A of the Act after the hearing. In response she said her supportive friend had invited her to [Country 1]. She already had a visa for Australia. She was not aware of the asylum process in [Country 1] (nor in Australia) but decided to travel to Australia to be at a distance from those she feared in Korea. Concerning China, she went there to see a friend after she lost her job. The Tribunal has considered this but does not find it a persuasive response to its concerns that if her circumstances were as claimed in South Korea (in relation to the very serious dangers faced from both YL, discussed further below, and the South Korean authorities), she would not have delayed her travel to Australia where she was going in order to avoid danger that could occur at any time, by taking a holiday to [Country 1] for a few days (and once in [Country 1] with a friend, she did not even take steps to find out if she could be safe there and claim asylum) and instead she returned to South Korea, a place of imminent danger, and further delayed her travel to Australia. The Tribunal considers that, if her claims were true, it would have been reasonable for the applicant to have focused on leaving South Korea as soon as her visa for Australia was issued, and it is doubtful that if she was constantly monitored and suspected of being a spy she would have risked the attention of the authorities by travelling in and out of the country for holidays. The Tribunal considers that the above undermines her claimed fear of the South Korean authorities.
Ability and choice to travel on holidays given the claimed nature of YL
Secondly, in addition to the above, the Tribunal had further concerns with the applicant’s claims that she and her daughter travelled to China and [Country 1] for holidays after she was removed from her job in April 2013. The Tribunal was concerned that this travel appeared inconsistent with her claims about the possessive, violent, controlling, dangerous nature of YL. In her statutory declaration sworn 27 October 2014 she said that when she lost her job, his threats became worse and he would threaten her with a knife in front of her daughter. He threatened to kill her and follow her anywhere she tried to run. She was afraid for her daughter’s life and her own life. Further, throughout 2014 until she left, he would come and visit her daughter and her, and would threaten to kill her unless she gave him money and had sexual relations with him. He had previously kidnapped her daughter and, to appease him and get her back, she had promised to be compliant.
The Tribunal put to the applicant at hearing that it was difficult to understand how YL, with his claimed characteristics, would allow her and his child to travel overseas without him (on two occasions). It noted that her overseas travel, away from and without YL, to visit friends, appeared inconsistent with her claim that she was essentially a captive or hostage under his control. In response she said that YL had changed significantly after the birth of their [child], and he became “a bit more relaxed and trusted me after I got a government position” but when he was drunk he threatened to harm them, “otherwise he was quite relaxed”. Further, “I had a friend I wanted to go and visit”. She then claimed that this question was difficult for her.
The Tribunal was concerned that the applicant offered, by way of explanation as to why the man who trafficked and controlled her allowed her to travel overseas, twice, with their child, after she had lost her government job, that he had become more relaxed because she had a government job.
Further, this response, indicating that YL had a more relaxed nature, was inconsistent with her claims about his actual attacks and abuse, that he had become very angry after she lost her government position in 2013, and that his threats had become worse including that he would follow her if she decided to go anywhere, and that he would murder her.
The Tribunal did not find her explanations for her ability in her circumstances to take holidays to China and [Country 1] and then to return to South Korea, to be persuasive.
Further, the Tribunal put to the applicant that her claims that YL was angry about the loss of money she could give him from her government job, and his financial targeting of her after she lost her government job, appeared inconsistent with YL allowing her to travel overseas (with their daughter as claimed). In response, the applicant said that at that time things were really frustrating and she was devastated and YL kidnapped her child and she had to leave her public office position because of a spy scandal and she keeps things inside her and she didn’t want harm and the friends helped her a lot so she wanted to visit them and she is not lying. The Tribunal did not consider that she explained why YL allowed her and her daughter to travel overseas after she lost her source of income for him, having lost her government job, returning to South Korea, given YL’s claimed nature.
Further, the applicant’s choice to take holidays (and return) appeared to undermine those claims of YL’s claimed capabilities and nature and threats towards both herself and her daughter. The Tribunal considers that the applicant’s freedom, choice and ability to leave South Korea and go to other countries and return to her life in South Korea undermines and is inconsistent with her claimed history in her written materials (and generally her oral evidence). Her claimed history being that she had been subjected to control, possessiveness, ongoing brutal physical, sexual and emotional assaults and abuse; she was always in danger from YL for 13 years (and that the situation had become worse after she lost her job and could not provide him with the money he wanted); he considered that he owned her; she was vulnerable and could not go anywhere because he could use his contacts to find her (which he had previously done), such that she had been unable to relocate away from him in all these years.
The Tribunal has taken into account the post hearing responses, but noted that they contained further inconsistencies and concerns. It was said that the travel was only for short periods (28 July 2013–6 August 2013 to China and 18–21 August 2014 to [Country 1]) and that “she had not told her daughter’s father about the travel, and as it was only for short periods, it is unlikely he knew”.
The post hearing claim suggesting that YL did not know about the travel was inconsistent with the applicant’s evidence at hearing: when the Tribunal put to the applicant that YL allowing her and her daughter to travel appeared inconsistent with her claims about his possessive and controlling nature, she did not say that he was unaware of the travel. Instead, her explanation at hearing (he became a bit more relaxed and trusted her after she got a government position and she had a friend she wanted to go and visit) indicated that YL was aware of the travel.
The Tribunal also considers the post hearing explanation that it was “unlikely” YL knew about the overseas travel of the applicants to be inconsistent with the claims about YL’s nature. If the applicant’s claims about his nature were true, it would seem reasonable that the applicant would definitively know if YL was aware that she and his daughter had travelled overseas for holidays after she had lost her job, because she had said that when she lost her job, he was aggressive and brutal because she had lost an important source of money for him. Further, he was so angry about the loss of income that he had told her that he would “follow me to anywhere I tried to run”.[7] In such circumstances, if he had known they had gone overseas without telling him, it would be highly likely that he would have retaliated in an aggressive and brutal manner given his nature. The Tribunal considers that the applicant’s suggestion in the post hearing submissions that she did not know whether YL had known about her overseas holidays with their daughter, undermines her credibility and her claims about his nature.
[7] First statement.
Further, the applicant’s choice to take overseas holidays appeared inconsistent not only with her claimed circumstances of being constrained by a very angry man, but also financially reckless/difficult given YL’s continual financial demands upon her, as well as the loss of her job. She told the delegate at interview[8] that when she was made redundant she was struggling financially, it was exceedingly difficult to make a living, she struggled to pay bills and provide for her daughter, and she was being abused by her partner for a lack of money. The Tribunal put to the applicant at hearing that it was difficult to understand that she had funded holidays and travel to Australia. In response she said that she had received a small amount of severance pay and the friends she was visiting supported her. After the hearing, in response to a letter pursuant to s.424A of the Act, she stated that in relation to the holiday to China (not [Country 1]) she had used her severance pay. Concerning the holiday to [Country 1], she claimed (p.10) it was relatively cheap to travel to [Country 1], and while she cannot recall the exact costs of the airfare or the airline, there are a number of discount flights available; the cost could have been around $150. The main cost was the flight, other than that, her accommodation was provided for, and she was only in [Country 1] from 18–21 August. These costs were quite minor and not inconsistent with her stated financial situation.
[8] Delegate’s decision record page 10, and interview recording.
However, this response, indicating that the applicant had paid for the costs of the flights which were only minor, and otherwise her accommodation was provided to her, was later contradicted in the same submissions when she claimed that her friend in [Country 1] had paid for her ticket and the ticket of her child (p.13). While the Tribunal has considered the explanations, as well as understanding that she may have wanted the support of friends, it considers it highly unlikely that if she had lost her job because she was suspected of being a spy like her friend who had been targeted by the authorities, she was struggling financially, and was at further risk of serious and significant harm from YL for not giving him all the money he wanted from her, she would have travelled to China[9] for a holiday using her severance pay, or that she would have travelled the next year to [Country 1] even if the flights were “relatively cheap”; given her requirements to support herself and her child in daily life, and noting that she already had a visa to Australia and thus was aware that she would also have to pay for those flights for herself and her child. The Tribunal considers that her holidays undermine her claims that she lost her job and had financial difficulties and that she was a trafficked and controlled victim of YL who was brutal, angry and aggressive over the loss of her job.
[9] Her passport contained a Chinese visa with permission to remain for 30 days in 2013. She left South Korea [in] 28 July 2013, travelling to China on the same day.
The Tribunal considers that the applicant’s actions as discussed above in travelling to China and [Country 1], and returning to South Korea on two occasions, undermine her claims about her marriage, job, finances, and claimed adverse interest in her by the South Korean authorities and YL, as well as YL’s control over her and the child (whom he had previously kidnapped and in response to which she had promised him that she would effectively be obedient).
Characterisation of her relationship with YL as that of a joint decision-making couple
Thirdly, the Tribunal was concerned that the applicant’s evidence undermined her claims to have been and remained a victim of trafficking, under the control of the man she said had purchased her. In this regard, the Tribunal noted that in her application form, she claimed to have “separated” from YL in May 2008. The evidence relating to her changing addresses, discussed below, does not suggest for example that they separated residences on this date, and her written claims indicate that the nature of the relationship remained the same, namely very abusive, right up until she left for Australia in 2014.
After she claimed at hearing not to recall anything of note which occurred in May 2008 the Tribunal referred to her protection visa application form indicating that she had separated from YL on that date. She agreed that was the date. The Tribunal asked her what she meant by saying that she and YL had separated. The applicant however was unable to explain what it meant to her when she claimed that she and her husband “separated” in May 2008 (this is further referred to as a concern in paragraph 172 below). The Tribunal again asked the applicant what she meant when she said that she and her husband were “separated” in May 2008. She responded that it is a decision of a couple to separate; she can’t explain the details, it is difficult.
The Tribunal was concerned that the applicant’s response indicated that she and YL were a couple, in a “couple”-type relationship, making joint decisions as a couple, which was inconsistent with and undermined her claim of the type of relationship she had with this man. Namely, that she was his victim; she had been purchased by him; she was “owned” and controlled by him; and he could do whatever he wanted. Although she had an opportunity after the hearing to explain why she characterised herself and YL as a decision-making couple who together made a decision to separate, she did not do so.
The Tribunal considers that her evidence that they were a couple who made a joint decision, to separate, undermines her claims about the nature of the relationship with YL and her claims that she was the continued victim of an abusive trafficker, essentially “owned” and controlled by him.
Applicant’s lifestyle appears inconsistent with her claimed circumstances and the claimed nature and behaviour of YL
Fourthly, it appeared to the Tribunal that the applicant’s claimed lifestyle was inconsistent with her claims as to YL’s nature. The applicant claimed that he was a very violent, possessive, controlling person who paid a lot of money for her; he considered that she belonged to him; he used her as a servant and demanded money and services from her.
However, it was also her claim that she was essentially allowed to live her own life and do what she wanted in South Korea; including that she was able to live independently in her own apartment, apart from YL (two hours distance away, in the city), and study for two professional degrees for a total of more than eight [years] during which time she did not work and thus did not even generate an income for him.
At the hearing, the Tribunal said it was difficult to understand how a possessive and violent man who had paid a lot of money for her and expected her to be his servant, granted her the freedom to live her own life and do the things she did (which meant that in order to abuse her, he had to travel two hours to her apartment, and then two hours back to his house, actions which seemed unlikely when he could have just kept her a prisoner at his home or nearby). Although the applicant was given several opportunities to explain this inconsistency, she did not do so; instead she repeated claims she was living in a confined state in the countryside when in 2001 she met a religious worker who was aware of the abuse and helped her go to Seoul. She also said that she was not free, he was violent and assaulted her. He was erratic and changeable and if she slept with him he would treat her well. Then he would change and she had to behave like a slave. After she had a child and he thought maybe there is less chance she will escape him, he was a little bit more relaxed.
The Tribunal has considered her explanations but does not find her claims persuasive. Although the Tribunal accepts that there are many different types of behaviours in the world, it considers it highly unlikely that a man who bought her as a slave to work and earn money, and render sexual services and to generally be his victim, would allow her to live where she wanted, apart from him, two hours away in her own apartment, and allow her to advance her life by studying a Bachelor and Master’s Degree all the while she was not earning money (although she could have been working and making money) and that in order to assault or abuse her, he would be forced to travel two hours to her apartment (and then two hours home again). The Tribunal considers that her lifestyle was inconsistent with her claim to be a continuing victim of an abusive and controlling man who “purchased” her as a servant and wanted to keep her at his home and control her, and that this undermines her credibility and claims.
Claimed political activities in light of the claimed effect on her of her initial detention/interrogation
Fifthly, the Tribunal was concerned that the applicant’s claimed actions in South Korea were inconsistent with her claimed fears of being interrogated/detained by the South Korean authorities and the ongoing attention she was receiving from them as a suspected spy since 2001, which she was also fearful would adversely affect her family in North Korea.
In this regard, she told the Tribunal that when she was interrogated in South Korea in 2001, it was a very distressing experience. She told the psychiatrist that the experience of being detained and interrogated “almost killed her”.[10] Her second statement indicated that she was well aware (and had grown up with) the tensions and conflict between North and South Korea and she was fearful of death if she was sent back to North Korea. The Tribunal put to the applicant that if she already had such a difficult time when interrogated in 2001 (and given her concerns), it did not understand why she later risked coming to the adverse attention of the South Korean authorities by undertaking political actions such as posting a blog.
[10] [Dr A]’s first report.
Her responses caused concern due to inconsistencies with the written materials. Firstly, she said that at the time it was 2005, and the atmosphere was very different between South Korea and North Korea, although the countries were not “friends”, it was not as if they were on the brink of war. Secondly, when the Tribunal sought confirmation that she was claiming that, at that time, it was not a problem for her to make political blog postings, she responded that she did not think her blog could be called political as she mostly posted some songs and she was not resenting anybody.
However, the Tribunal noted that the handwritten notes describing her blog on the translation of the article (which she produced to the Department) stated: “Talks about being accused of being a spy in South Korea specifically talks about client’s blog”.[11] Further, the article upon which she relied actually states that the relations were not friendly between the North and South at the time of her blog; that there was a crisis as at May 2005 (and that the authors of the blogs listed in the article have contributed to the crisis). Thus, the documentary evidence upon which she relied was inconsistent with her explanation to the Tribunal that at the time she posted her blog, there were no real problems between the countries, and that the blog could not have been considered as political.
[11] Folio 174 and reverse.
Further, in her statement she had stated that she had written blog posts about how she did not like the then President of South Korea as he was a salesman and not a President and he was not taking Korea in the right direction; this undermined her explanation that her blog should not be considered political. The Tribunal was also concerned that her response seemed to downplay the potential political significance of her blog at the time (which she claimed led to her being blacklisted).
The Tribunal discussed the inconsistencies at hearing. The applicant said that she wrote about how she wanted the two Koreas to work towards peace, she did not make any “direct” criticism of the President and something could happen to the translation and it is needed to understand the exact situation of South and North Korea at that time which would explain why she wrote that blog and it is a very delicate and complex issue and she was studying at the time. Also South Korea cannot know the information about North Korea and in the blog mainly she posted North Korean songs and they put her blog on the blacklist.
The Tribunal also put to the applicant that the article upon which she relied actually states that the relations were not friendly between the North and South at the time of her blog; that there was a crisis as at May 2005. In response the applicant said that she thinks that “crisis” can imply something positive as well, it does not always mean danger, she cannot recall what is written now at this stage and she wants to read it again and she wants to respond in writing at a later stage.
The applicant, despite being given the opportunity, did not provide reasonable explanations for this in writing after the hearing. The Tribunal does not accept her assertion that “crisis” has a positive meaning in the article she provided; it does not accept any of her explanations. The Tribunal considers that her claimed actions of writing a blogpost including the assertion that her blog was on the same list of blogs of persons accused to be spying for North Korea, which led to blacklisting and were put forward as political or imputatively political, undermine her claims to have previously had a very bad experience being interrogated by the South Korean authorities; which experience had lasting effects (and she did not and also now does not want to be repeated). This also undermines her credibility.
In addition to the blogpost, it had been presented that another of the applicant’s perceived/actual political activities was attending [an event] protesting for peace in November/December 2011. The Tribunal asked her why she did this if she was concerned about coming to the attention of the authorities. In response she said that the [event] was advocating for peace and not violent. The Tribunal noted that advocating for peace between North Korea and South Korea can be seen as a political message; it also noted that she had claimed in her statement: “I was at [an event] protesting for peace”.
In response, the applicant said that she understood the concern, however at the time the relations between South and North Korea were different to what they are now; at the time she was very young and she had to adapt to a new culture and she wanted peace and she just wanted to see her family.
Concerning the political situation however, as put to the applicant, country information indicates that around that time, there remained tensions between the countries; a BBC article discusses tensions only one year earlier (as at 28 November 2010) stating that there is high tension on the Korean peninsula as the US and South Korea carry out military drills, five days after the North shelled an island.[12] In response, the applicant said that the feelings when residing there can be different to that described by the media. While noting her assertion, the Tribunal is not prepared to accept her suggestion that the political atmosphere was not of significance at the time she attended [an event] “protesting for peace”, it accepts the country information that there were (and had been) continuing tensions between the countries at the time of the [event]. Further, in her second statement, the applicant claimed that when she obtained her position in May 2010, she felt she was being watched and monitored and followed at work on an extreme scale (for example even when she went to the toilet) and she referred to her concern that adverse attention and any more investigations of her would cause problems not only for her (which led her to be fearful) but also for her family in North Korea. This awareness that any further investigation of her could lead to problems for her family appears to undermine her explanation that she was young and just wanted to see her family. The Tribunal is not prepared to accept the explanations provided. The Tribunal was concerned that the applicant again appeared to downplay the significance previously claimed of attending a protest (while subjected to surveillance by the NIS).
[12] >
The Tribunal considers that her claimed action of attending a protest [event] at a time she was being monitored on an extreme scale, which was put forward as political or imputatively political, undermine her claims that she had previously had a very bad experience being interrogated by the South Korean authorities; which experience had lasting effects (and which experience she did not and also now does not want to be repeated). This also undermines her credibility.
The Tribunal considers her claimed political activities (both in 2011 and earlier) to be inconsistent with her claims that adverse attention/investigations could lead to harm for both herself and her family left back in North Korea.
Inconsistency with documents
Sixthly, the Tribunal had concerns that documents produced by the applicant were inconsistent. The Tribunal put to the applicant that some of the documents she had provided (for example the Identification Certificate and the Family Relation Certificate both dated [September] 2014[13]) recorded her registered address as [Gyeonggi-do]. This was not an address she had provided in her application form (other inconsistencies in evidence/documents concerning her claimed addresses in South Korea are discussed further below starting from paragraph 81). The applicant said at hearing that this was her address when she was detained (in 2001); this was her place of registration. However, if it was the practice in South Korea that documents issued in 2014 would record her registered address as a 2001 detention/ interrogation centre address, then this does not explain why the translation of the Family residential registration papers dated [February] 2014[14] which listed all of her addresses from June 2001 until February 2014 failed to include that detention/interrogation centre/place of registration address. Further, given the applicant’s assertion in her first statement that she had spent three months in an interrogation centre, she did not know the name of the interrogation centre but they moved the location “all the time”, it seemed difficult to accept that her registered address in documents dated 2014 would be the address of a detention/interrogation centre from 2001 (especially, as discussed below, that this appears inconsistent with country information that the applicant relied upon, indicating that South Korea changed its laws to stop North Koreans being identifiable/stigmatised through information on their documentation). The Tribunal considers that the above undermines her claim that her registered address was the address of a detention/interrogation centre, and it undermines the credibility of her documents.
[13] TF20 and reverse.
[14] Produced post hearing.
Credibility summary on the basis of the above
On the basis of the above, the Tribunal considers that the applicant is not a witness of truth, that she is prepared to tell untruths in order to obtain a positive immigration outcome for the benefit of herself and her daughter, and that she is prone to exaggeration and fabrication.
Further concerns with credibility (second concerns)
In addition to the above concerns which have led the Tribunal to find that the applicant is not a witness of truth, the Tribunal had further concerns about the applicant’s credibility, which are set out below. These concerns relate to inconsistencies and omissions and implausibility in her evidence and claims, including that her evidence indicated that she left her daughter behind on one of those holiday trips, undermining the claim that the child was in danger of harm from her father. The Tribunal has considered these concerns separately, taking into account the explanations provided by a psychiatrist, [Dr A], for some of the difficulties with her evidence (discussed after the concerns below).
Inconsistencies concerning where she lived in South Korea
Firstly, the Tribunal was concerned about the applicant’s inconsistent and changing evidence about where she lived in South Korea (and when, and with whom).Her protection visa application form recorded that she lived at a single address, [in Seoul], from the time of her arrival in South Korea (February 2001) until her departure for Australia (September 2014).
In her first statement, she provided two addresses:
· When she came to South Korea in February 2001, she was taken by YL to live with his family in a rural area: “I do not know the name of the place I was taken”.
· Then, from late July 2001, she lived in Cheongju-si, Chungcheongbuk-do, “independently in a small apartment”.
At the first hearing her evidence was again different:
· Her first address (where she lived with YL who trafficked her, in 2001) was at a location she could name: [Chungcheongbuk-do]. She lived there for under one year.
· She then moved with YL to Cheongju-si [where] she resided for a little over one year.
· She then moved to [Seoul] (in approximately 2002). She lived here, by herself (with her [daughter]) for about [a number of] years before moving to Australia.
The Tribunal asked the applicant about the inconsistencies at hearing:
· At the first hearing the Tribunal put to the applicant that her claim to have been taken to a rural area with the man who trafficked her was inconsistent with her protection visa application form where she claimed that the whole time she was in South Korea, she resided in [an] Apartment in Seoul. In response the applicant said that at the time she did not understand English well and she must have misunderstood the question and thought she was being asked for the latest address where she lived in South Korea. The Tribunal does not find this persuasive, because the date recorded for when she started living at that address was February 2001 (the date she said that she first arrived in South Korea), not some later time. The protection visa application form appears to undermine the claim that she had been trafficked to an unknown rural area in South Korea to live with YL in February 2001.
· Further, the Tribunal noted her evidence at the first hearing was that she did know where she first lived when she arrived in South Korea, which was inconsistent with her statement that she did not know. This was raised at the second hearing, and the applicant said that the address she had given at the first hearing was correct; she does not recall claiming in her statement that she did not know that address, perhaps she misunderstood. Having regard to its other concerns, the Tribunal is not prepared to accept this explanation, and it considers that the inconsistencies in her claims as to whether she did/did not know where she lived when she was first trafficked to South Korea undermine her claims.
· In addition to the inconsistency as to her addresses between her statement and application form (including that when she lived independently, long-term, in an apartment, different locations for that apartment were given: the [Apartment] in Seoul compared to the apartment in Cheongju-si, Chungcheongbuk-do), the addresses in her written materials were also inconsistent with her evidence at hearing. In this regard, her first statement showed that she had two addresses, the rural area where she was first trafficked, and then an apartment in Cheongju-si, Chungcheongbuk-do, where she started living independently within five months of her arrival in South Korea. However, her evidence at the first hearing was that she had lived not only at the first rural location with YL, but that she had then moved to a second address with YL (not independently), and that altogether she had lived with YL for almost two years. (She only claimed to live independently when she moved to her third address, the [Apartment] in Seoul.) Further, noting that her statement recorded that she had arrived in February 2001, she claimed to have been in an interrogation centre for three months until July 2001 (thus, from about May–July 2001), and then she lived independently in her apartment from late July 2001. This would mean that she only lived with the man who trafficked and paid for her for two/three months when she first arrived (February–May 2001), and then for less than one month in July 2001, after which she claims she was allowed to live independently from him. When the concerns were put to the applicant about her inconsistent claims, she said that this was a long time ago; it is hard to return to this subject. While the Tribunal accepts that it was a long time ago, it is not prepared to accept that this, or the claimed difficulty of the subject matter, has led to the applicant’s significantly inconsistent evidence about where she lived, when she lived there, and whether she lived with YL, the person who had trafficked her and controlled her. The Tribunal is not prepared to accept her explanations for the inconsistencies in her evidence about where she lived, and who she lived with.
Further, documents provided by the applicant provided further inconsistencies in her addresses. As noted above, the applicant had provided two documents which recorded her address as at 2014 as [Gyeonggi-do] (no such address was listed in her written materials or provided at hearing), and after the second hearing, the applicant provided to the Tribunal a translation prepared after the second hearing of a document called “Family residential registration papers”.[15] This showed that the applicant was registered at a precise address at [Chungcheongbuk-do] from [June] 2001, for three months until September 2001, when she moved to a second address in Chungcheongbuk-do where she continued to reside for three years until July 2004. This document thus is inconsistent with:
· Her claim at first hearing to have resided at the second address in Chungcheongbuk-do for a little over a year (not three years).
· Her claim in her first statement to have escaped from YL less than one month (not three months) after her release from detention in late July 2001 at which time she moved to the second address in Chungcheongbuk-do, from July 2001 (until she left South Korea in 2013).
· Her protection visa application which records a single address for the whole time she lived in South Korea.
[15] The post hearing submissions state that the document and the translation were “previously provided”. However as the translation was dated after the second hearing, it seems doubtful that it had been previously provided. The Tribunal does note that the document had been provided earlier to the Department, but without a translation. The Tribunal had raised with the agent at the first hearing in October 2017 that there were untranslated documents on the file but no further translations were provided. The translation is located at TF137.
This document relied upon by the applicant is thus inconsistent with her protection visa application form, her first statement, and her evidence at the first hearing. A further concern arising from these matters is that, when considering her claim at first hearing to have resided at the second address in Chungcheongbuk-do for a little over a year with YL, this is inconsistent with her claim in her first statement to have escaped from YL in late July 2001 at which time she moved to the second address in Chungcheongbuk-do without YL.
The extent of the different evidence about where she lived, who she lived with, when she lived at certain locations and the number of places she resided in in South Korea, is not insignificant. The Tribunal considers that the inconsistencies in her oral and written evidence as to when she lived with YL and where she resided in South Korea undermine her credibility and her claim that she was a victim of trafficking controlled and “owned” by and forced to live with the man who trafficked her. The Tribunal also notes that none of the evidence about changing addresses corresponds with the claimed date of separation (May 2008), and while it accepts that separation does not have to mean a physical separation, it notes that the applicant did not offer a satisfactory explanation of these matters.
Inconsistent and changing evidence about the blog
Secondly, the Tribunal had concerns about the applicant’s inconsistent and changing evidence about the blog and the article referring to the blog, upon which she relies.
In her statement, she claimed that she was worried about what might happen to her child, so she changed her blogpost privacy settings from public to private. This however was inconsistent with her evidence to the Tribunal that the authorities (or someone on their behalf) had deleted her blog and she was not able to access it once her blog was on the blacklist. When this was put to the applicant she said maybe the communication was not correct; yes she made the setting private and because of that she was startled and surprised and she felt like she had been monitored. The Tribunal noted that while she now agreed with her statement, she had earlier given evidence to the Tribunal that the authorities had closed her blog and she could not access it. The applicant then said that the blog is still there but it is not for the public to view. The Tribunal said that if she had access to the blog, and it supported her claims, then it did not understand why she had not printed the content of the blog and produced it as evidence. In response the applicant said she thinks she has submitted it. However, when the Tribunal asked her what she thought she had submitted from her blog, she said a list of song titles. She said that the list of song titles was not controversial. The Tribunal said that it was difficult to accept that she would have submitted, in support of her protection visa application, a list of non-controversial song titles from her blog, instead of submitting the controversial aspects of her blogpost, such as her comments about the President. The applicant did not offer an explanation except to say that this is what she posted. The Tribunal read to her the submissions made on her behalf by [Agent 2]: “she maintained a blog on which she made criticisms of the South Korean government and advocated greater ties between North Korea and South Korea; her posts may be perceived as praise for North Korea”.[16] The applicant said that she wants more time to check things. The Tribunal said it was again asking why she would have produced as evidence a list of non-controversial song titles, but not other aspects of the blog. She said at that time she was a very young person and she was not very active and she had no idea. The Tribunal does not find these explanations to be persuasive. The Tribunal noted that it did not have any printouts from her blog. The agent said to the Tribunal that he had looked for the blog but had been unable to locate it. Although the applicant had further time to “check things”, she did not later produce a list of song titles or anything else in relation to the blog, nor did she offer any further explanation for her changing evidence in this regard.
[16] DF188R.
The Tribunal notes the applicant does not claim, and there is no credible evidence to suggest, that anyone would target and inflict serious harm on her as a person who requires mental health treatment (for instance, as a member of any putative particular social group); or that she would attract adverse attention amounting to serious harm or extreme humiliation as a result of her mental health or accessing of treatment. Even if the Tribunal accepted that the applicant may face a mild social stigma if it was discovered that she was accessing treatment, the Tribunal is not satisfied that this would reach the level of serious or significant harm. Nor is the Tribunal satisfied that anyone would deny her any treatment on selective and discriminatory grounds (whether based on the nature of her health problems, or any other Convention-related attributes). The Tribunal is not satisfied that the state of health of either the applicant or her child means that either or both face a real chance of serious harm or a real risk of significant harm in South Korea.
The applicant’s claims relating to tensions between North and South Korea related to her claimed position generally as a North Korean defector and as a person of interest in South Korea. The Tribunal has not accepted those claims and does not accept that the applicants face a real chance of serious harm or a real risk of significant harm as a result of any tensions between North Korea and South Korea.
The Tribunal finds that the applicant was prepared to make false and changing claims to support protection visa applications. The Tribunal does not accept that the applicants have faced any threats or harm in South Korea nor that anyone has had any adverse interest in them since she has been in Australia. The Tribunal does not accept that they face harm as claimed by the agent as a member of any particular social group.
The Tribunal does not accept that the child faces a real chance or a real risk of being subjected to family violence for any reason. It does not accept that she faces a real chance or a real risk of discrimination and harassment as a child of a parent who was born in North Korea, either from the general public or her father. The Tribunal also does not accept that the child faces a real chance or a real risk of any harm or any denial of effective protection because of her membership of a particular social group of the applicant’s family.
The Tribunal is not satisfied that the applicants face a real chance or real risk of requiring access to state protection.
The Tribunal has considered the applicants’ claims individually, and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past harm or future harm feared, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that they do not have a well-founded fear of persecution as a refugee for any of the reasons put forward by them, or on their behalf.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).
The Tribunal does not accept that the applicants have experienced any of the past harm or threats or adverse interest as claimed.
The Tribunal has accepted that the applicant is a resourceful, educated female with work experience in South Korea; that her claims as to adverse interest/ harm from the authorities or her partner are not true; it does not accept that she has experienced harm in her relationship, nor generally as a woman. The Tribunal has considered it most likely that she has a partner to return to, and that she has worked in South Korea, and it considers that she can continue to do so and look after her child (as she managed to do previously). The Tribunal has found that otherwise, the applicant is not a witness of truth concerning her claims that she or her child faces a real risk of significant harm. While the Tribunal accepts that there will be a period of adjustment, and that they may seek to access counselling, and that the applicant may need medical assistance with gastric/ anaemic/physical issues, the Tribunal is not satisfied that these applicants face a real risk of experiencing significant harm for any reason (including as females, in relation to relationships, in their daily life, nor for any other reason).
On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, in this case South Korea, there is a real risk that they will suffer significant harm for the purposes of s.36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicants satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s.36(2).
For the reasons given above 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) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). 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.
Christine Cody
MemberANNEXURE A - RELEVANT LAW
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.
Refugee criterion
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).
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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 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.
Member of the same family unit
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 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 parent and child.
ANNEXURE B
"What are the "10 Principles"?: “Ten Principles for the Establishment of the One-Ideology System” are regulations that govern the everyday lives of the North Korean people. They were officially announced by Kim Jong Il in 1974. The original Ten Principles, to which the name “General Kim Jong Il” has now been added, are as follows:
1. We must give our all in the struggle to unify the entire society with the revolutionary ideology of Great Leader Kim Il Sung.
2. We must honor Great Leader comrade Kim Il Sung with all our loyalty.
3. We must make absolute the authority of Great Leader comrade Kim Il Sung.
4. We must make Great Leader comrade Kim Il Sung’s revolutionary ideology our faith and make his instructions our creed.
5. We must adhere strictly to the principle of unconditional obedience in carrying out the Great Leader comrade Kim Il Sung's instructions.
6. We must strengthen the entire Party's ideology and willpower and revolutionary unity, centering on Great Leader comrade Kim Il Sung.
7. We must learn from Great Leader comrade Kim Il Sung and adopt the communist look, revolutionary work methods and people-oriented work style.
8. We must value the political life we were given by Great Leader comrade Kim Il Sung, and loyally repay his great political trust and thoughtfulness with heightened political awareness and skill.
9. We must establish strong organizational regulations so that the entire Party, nation and military move as one under the one and only leadership of Great Leader comrade Kim Il Sung.
10. We must pass down the great achievement of the revolution by Great Leader comrade Kim Il Sung from generation to generation, inheriting and completing it to the end.
The ten main principles and 65 sub-clauses of the Ten Principles describe in detail how to go about establishing the one-ideology system. All North Koreans have to memorize them. Not only that, they have to put them into practice; during regular evaluation meetings, people criticize themselves on the basis of whether or not they have been living up to the Ten Principles in their everyday lives.North Korean Films, exploring the DPRK through its cinema: Review of the Flower Girl, 6 November 2011, difficult to over emphasize the importance of The Flower Girl (1972) in the history of North Korean cinema… and possibly even harder to find an analogous example in another country’s movie cannon. The US may have iconoclastic Citizen Kane (1941) and China the psycho-sexual drama Spring in a Small Town (1948) but there is a reverence paid to The Flower Girl that makes it far more than just the “greatest” film ever produced in the country.
Based on the revolutionary opera reportedly written by Kim Il-sung while imprisoned in Jilin prison in the 1930s, The Flower Girl has become the embodiment of the anti-Japanese struggle and helped elevate the film’s star Hong Yong-hee to the status of a god in her native country. (I mentioned before how the image of her in the film adorns a bank note.)…
ANNEXURE C
What is the DSM-5?[37]
[37] you fall out of a tree and hurt your leg your doctor can send you for an x-ray to see if your bone is broken. This x-ray helps your doctor decide what treatment you need. But for people experiencing symptoms of mental illness, usually there is no equivalent of an x-ray or blood test to objectively measure whether you have depression or post traumatic stress disorder (although there are a few rare exceptions).
So it becomes essential for psychiatrists and mental health professionals to have access to a tool that allows them to diagnose, and then treat, people who come to see them with nothing more than a list of signs and symptoms.
This is where the DSM-5 comes in. It is a diagnostic reference manual that outlines a set of criteria – symptoms, descriptions and markers of mental disorders – that can be used to help health professionals, especially in the US, to diagnose mental disorders. In Australia, it is one of two diagnostic manuals currently used; the other, published by the World Health Organisation, is the International Classification of Diseases: Classification of Mental and Behavioural Disorders 10th Revision (ICD-10).
Perminder Sachdev is a professor of neuropsychiatry at the University of New South Wales and a member of the Neurocognitive Disorders Workgroup, one of the 13 workgroups responsible for the latest update.
He says the purpose of DSM-5 is to allow psychiatrists and other appropriately trained mental health professionals "to diagnose a condition in an individual who is seeking clinical attention".
"The DSM seeks to reach a diagnosis that is reliable and valid, so that two independent psychiatrists are likely to reach the same conclusion and likely to provide similar treatment."
However, Sachdev says how reliable or valid a diagnosis is depends on the disorder. "For example, the reliability of obsessive compulsive disorder or major neurocognitive disorder (or dementia) is very high, but that for a major depressive disorder is not so."
ANNEXURE D
The Tribunal has considered the applicant’s assertions, including that, after a break at the first hearing, the applicant said that she was frightened and that whenever she is asked a question it reminds her of the time she was interrogated in South Korea. She then said however that the Tribunal hearing is different, because she has a lawyer and a support person with her, indicating that she considered she felt supported in giving her evidence. The Tribunal had also said that if she needs any further breaks she should let it know.
After the first hearing was adjourned on 11 October 2017, the agent informed the Tribunal that the applicant “collapsed on the street after the hearing, was vomiting and has been taken to hospital”. The applicant claimed that this was as a result of the questions at hearing[38]. The agent said that relevant medical reports would be provided, however instead of this, a letter from the applicant’s support person (not medically qualified) was provided. This stated that the applicant is reluctant to talk about her past; at the hearing she was vomiting and distressed in the toilets during the breaks; she collapsed outside the women’s toilets at one point during an adjournment; after the hearing she said that she saw someone she thought was a spy in a coffee shop and then she collapsed in the street. She appeared to be unconscious and an ambulance was called.
[38] See discharge report subsequently provided. Further, a letter from a [ORGANISATION 1] counsellor dated 11 December 2017 notes the applicant said she had experienced significant torture and trauma from her early childhood years and the Tribunal experience was a process that really triggered her past trauma and she was not able to cope with the difficult questions put forward to her. She does not want to attend another interview. She appeared visibly distressed and upset.
The Tribunal wrote to the agent on 30 November 2017 noting that further postponements of the adjourned hearing had been sought after the matter was adjourned on 11 October 2017, but that more than six weeks later, the Tribunal had still not been provided with a medical report or hospital discharge summary, nor was any indication provided of when the hearing could resume. The Tribunal thus scheduled the postponed hearing for 22 December 2017, and reiterated that there did not appear to be any appropriately qualified expert opinion or diagnosis as to any issue with the applicant’s mental health provided to the Tribunal to date. The agent then sought a postponement of the hearing, providing a GP medical certificate stating that the applicant is unfit “to attend [no event was specified]” for one month until 12 January 2018 due to severe mental distress, anxiety and depression. The Tribunal was still not provided with the hospital discharge, and issued a formal request for details of the hospital. The Tribunal rescheduled the hearing for 2 February 2018.
The Tribunal was finally provided with the hospital discharge report which showed that:
· The applicant told the hospital that she was stressed at the Tribunal hearing. She said that she has not seen a psychiatrist to date; she has seen a [Organisation 1] counsellor but does not find it useful as there is always a change in staff.
· There was a diagnostic “impression” of syncope [fainting] secondary to dehydration +/- emotional stress, anaemia (likely long-standing), mild gastritis found.
· The applicant had been discharged on 18 October 2017. The report suggested that in the circumstances of her emotional stress she could be referred to a psychiatrist or psychologist.
As [Dr A] states in his second report, while in hospital, the applicant was not reviewed by a psychiatrist or anyone with specialist mental health expertise during her week-long admission. As put to the applicant at the second hearing, it appeared that the hospital did not consider that she should, during that time, be reviewed by any mental health specialist. The Tribunal noted that the only diagnosis appears to be anaemia (she was issued with infusions to good effect) and mild gastritis, and that she had some vomiting of blood (which on its face and in the absence of evidence, did not appear to be related to the hearing). It notes that she claimed emotional stress, and that one of the issues raised was acopia (failure to cope) as well as fainting. An “impression” noted was that perhaps her emotional stress may have features of PTSD, but there was no diagnosis. The Tribunal put to the agent that if she had been held in hospital for one week as a result of any mental health/ psychiatric issues arising from questioning at a hearing, there had been plenty of time while she was hospitalised for medical professionals to diagnose and treat her (and to support that assertion); yet this had not happened. The agent responded that [the specified] Hospital does not have psychiatrists. The Tribunal suggested again that if her mental health was a major issue, it would think they would have referred her to another hospital. The Tribunal is not satisfied on the evidence before it that the questioning at the first hearing caused the applicant to suffer anaemia and mild gastric issues. While it accepts that she may have felt emotional stress, it considers if the medical staff were of the view that she had sufficiently significant or serious mental health problems, then it would be reasonable to expect that she would have been arranged to be seen by a mental health practitioner, and be properly diagnosed and treated, at least at some stage of her seven days in hospital. The Tribunal has taken account of the evidence from the discharge summary, but it does not accept that in this particular case, the applicant’s evidence should not have been tested, in order to accord her a fair hearing.
The Tribunal has also considered the opinion of [Dr A] who stated that the applicant’s collapse was consistent with PTSD “triggered by the Tribunal hearing itself”. As noted above, the psychiatrist links his characterisation of the hearing experience with his acceptance that the applicant previously faced interrogation; this is not however a matter that the Tribunal accepts. Further, the Tribunal considers that if the applicant did collapse after the hearing for mental health reasons, as noted above the Tribunal would have expected that she was treated for mental health concerns in hospital. The Tribunal has considered the supporting evidence and opinions but, it does not accept that the applicant’s mental or physical state at hearing affected her evidence to the extent that it can explain the credibility concerns with her evidence. The Tribunal is not prepared to accept the applicant’s claim that attending a Tribunal hearing reminded her of being interrogated in South Korea, nor does it accept that the applicant’s emotional stress (or physical condition) can explain the difficulties with her evidence at the first hearing.
The second hearing: After [Dr A] had his consultation with the applicant, he stated that she was not currently fit to attend another Tribunal hearing. Later the agent submitted that she remained unfit to attend a hearing in person but she would like the case to be resolved and would like the hearing to be undertaken by telephone at her agent’s office. The Tribunal was referred to the AAT Guidelines on Vulnerable Persons in support of this. The Tribunal agreed with the request for the telephone hearing.
The applicant then attended a second hearing on 2 February 2018 by telephone (she was in her solicitor’s office). At the commencement of the second hearing the Tribunal referred to [Dr A]’s report recommending that the applicant not attend a hearing. The Tribunal noted that the report did not say that she could attend a telephone hearing, yet the applicant had offered to attend a telephone hearing (with which the Tribunal had then agreed and arranged). The Tribunal asked if she was in a position to proceed with this hearing and she said yes. The Tribunal noted that she could ask for breaks whenever she wished. When asked whether she wanted to say anything before the Tribunal started to ask questions, she said no.
During the hearing she again said she did not want to answer some questions, and indicated that she would like to answer some questions in writing through her agent. The hearing was not completed as the solicitor said that the applicant fainted and sought to leave the hearing. The Tribunal noted there were issues that had not been dealt with as well as information pursuant to s.424A of the Act. The Tribunal said it would send a letter to the applicant through her agent, and that if the applicant sought to attend a further hearing, she should let the Tribunal know. After the second hearing the Tribunal sent a letter referring not only to information pursuant to s.424A of the Act, but also to some matters relevant to s.425 of the Act. In this regard, it noted that there were concerns that it would have put to the applicant if the (second postponed) hearing had continued, which were in addition to the concerns already raised at hearing. Noting that the applicant often seemed not to want to give evidence and that she indicated a preference to provide responses in writing, the Tribunal put some further concerns in the letter, providing her with an opportunity to answer in writing, noting that it was available to receive her oral evidence and arguments at a further hearing if she sought. A request for extension of time was received and the Tribunal agreed. In the post second hearing letter the applicant refused the opportunity of a further hearing. In the circumstances the Tribunal considers that it has discharged its s.425 obligations to the applicants.
10. The response to the Tribunal’s post hearing letter was in the form of submissions from the agent, and a second report from the same psychiatrist. As noted above, there was no indication in the second report that the psychiatrist had had any further contact with the applicant since his first incomplete 45 minute session.
ANNEXURE E
Other letters from medical and community professionals, and the agent’s opinion
The various other letters (including some of which were relied upon by [Dr A] in making his diagnosis of severe PTSD) are located on the files. Some of the letters provided by various professional (including [Professor B]) were located on a different Departmental file relating to the consideration by the Department of applications for financial assistance and in support of the s91Q request ([File number 1]). This file contained some documents which were the subject of the invalid certificate relating to correspondence and supporting documents in relation to the applicant’s various applications for funding and other types of assistance from organisations [after] she arrived in Australia in 2014 and lodged her protection visa application. From these documents, it appears that she visited a number of professionals and told them she was from North Korea, that she had been subjected to persecution, trafficking, prostitution, abuse; and that she had claimed symptoms, including that she had made numerous attempts of suicide, she had mental health symptoms/diagnoses (PTSD and depression resulting from her traumatic background), and that she presented as upset and distressed. On numerous occasions she has not answered the questions asked of her, saying it was too upsetting to do so; the authors of the letters appear to have accepted this as supporting the existence of her past traumatic experiences and mental health conditions.
The reports from general practitioners can be summarised as follows:
· A medical report dated 11 December 2014 prepared by [the Professor][39], which was submitted on behalf of the applicant to “corroborate her claims and attest to her current mental health condition”. This states that the author is a volunteer GP, [providing] pro bono services to [clients]. She first saw the applicant on 20 October 2014. Reference is made to the applicant’s history of being trafficked into prostitution, being beaten and previous attempted suicides. It is stated that the applicant “sought help for depression”; she has been taking antidepressants and is having ongoing counselling and has improved dramatically. Her mood is stable; her sleep is improved and her thoughts and insight now present as normal. She has also been referred to [Organisation 1]. She shows no signs of suicidal tendencies at present and appears to be taking good care of her daughter. She has ongoing lower back and [other] pain consistent with previous injuries. As discussed at hearing however, it appears that the GP has accepted at face value the applicant’s claims of past trauma, and her self-reported depression. While the Tribunal accepts that the applicant attended upon a [GP], who provided her with anti-depressants, it is not prepared to accept the applicant’s self-reporting of past harm or symptoms as corroboration of her claims.
[39] [File number 2] df165.
· [Professor B] dated 1 December 2014: letter from [Professor B] and Mandatory Reporting (discussed above). [Professor B] noted that the applicant told him of anger issues towards her child who was misbehaving[40], and she self-reported to him about poor sleep, nightmares and episodes of flashback and five previous suicide attempts. He then stated that she had moderately severe depression. The basis for his assessment appears to be her self-reporting; it is not apparent from his report that he did any tests to determine clinically that she suffered from depression. It notes [Dr A]’s acknowledgement that [Professor B] does not have any qualifications in the field of psychiatry. However, the Tribunal is prepared to accept the diagnosis of [Professor B] that at that time, the applicant had moderately severe depression. The Tribunal is not prepared to accept that what she told [Professor B] about her past and symptoms can be considered to corroborate her claims. The Tribunal is prepared to accept that the applicant was struggling with her misbehaving child and had emotional issues in this regard (which is supported by the subsequent 56 [Organisation 1] sessions referring to parental coping strategies), as well as immigration problems, and considers that these matters could have contributed to her depression. However, it is not suggested that such a diagnosis at that time can explain the difficulties with her claims and evidence from the time of her claims to date
[40] The Tribunal had also put information about [Professor B]’ reporting to [Government agency 1] to the applicant pursuant to s.424A of the Act. The Tribunal was not provided with any assessment by [Government agency 1]; however the Tribunal noted that the child had not been removed from her care by [Government agency 1]. Although [Dr A] in his second report, and the submissions, refer to many different reasons why a child may not be removed from parents, the Tribunal is not privy to [their] reasons and it is unaware of the results of any [Government agency 1] investigation. The Tribunal is prepared to accept that the applicant told [Professor B] that she wanted to harm her child in 2014; which was reported to [Government agency 1] but that [Government agency 1] did not remove the child from her care and instead recommended that both she and her child attend counselling, and that they did this.
· A letter from [a GP], dated [March] 2015, states that she has seen the applicant since [January] 2015. The letter referred to claims of past trauma and suicide attempts, it notes that she continues to take antidepressants; she has had acute appendicitis and needs review by a gastroenterologist, noting that she has acute nausea. [The GP] supports the application for funding for medications.
Other correspondence from nurse/ community professionals (counsellors, social workers, [Organisation 2], the Department in relation to funding) which are located on the files appear to accept without question the applicant’s claims, reported symptoms, and asserted diagnoses, for example both applicants “have endured extensive physical and mental trauma throughout their lives”[41], and the applicant “has reported a significant history of multiple trauma and experiences and symptoms associated with post-traumatic stress disorder and severe depression”[42]; a letter[43] supporting that she be granted protection from a counsellor and social worker dated [July] 2015 refers to the symptomology of “her PTSD”. These letters do not provide any details as to who and when a diagnosis of PTSD and “severe” depression was made; indeed as noted by [Dr A] the applicant told him in 2017 that she had not previously been diagnosed by a qualified person (although in her statement in 2014 she claimed that she had PTSD).
[41] A letter from [a] registered nurse, midwife and mental health nurse noting that the applicant does not have access to Medicare and is receiving pro bono counselling, physiotherapy, medical assistance, dental care, medication and ongoing support as well as referrals for physical examinations (CAT scans tests, and a referral to a gastroenterologist).
[42] A letter from [a] social worker, [Organisation 1], dated [March] 2015, in support of CAS funding for the applicant.
[43] A letter from [a] counsellor and social worker dated [July] 2015.
Further, prior to the first hearing the Tribunal was provided with a letter from [Organisation 1] dated [October] 2017 which states that the applicant was referred by a “caseworker” to [Organisation 1] [in] October 2014 [“due] to complex, multiple trauma history, complex PTSD, depression and anxiety, grief and loss, issues relating to resettlement, social isolation and parenting”. It is not specified who made such diagnoses other than the “caseworker”, whose qualifications are not stated. It appears that the caseworker had accepted the applicant’s claimed history and symptoms.
The agent’s opinion: Further, the Tribunal has considered that the agent says that he considers that in his experience she is a very traumatised client who was vomiting “due to stress and anxiety” when he saw her to prepare her statement (signed 4 October 2017, prior to the first hearing). He does not however suggest that he has medical qualifications, and while the Tribunal has considered his opinion, this does not explain the difficulties with the applicant’s evidence.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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