1611485 (Refugee)

This matter concerned an application for a protection visa by a woman and her daughter, both nationals of the Democratic People's Republic of Korea (DPRK). The primary applicant claimed she feared persecution if returned to the DPRK due to her status as a defector, and also feared harm from her daughter's father in South Korea, alleging he had connections within the South Korean police force and that the authorities would not protect her. The secondary applicant, her daughter, was also at risk of harm from the father. The decision under review affirmed the refusal of the protection visa applications for both applicants.

The legal issues before the Tribunal were whether Australia had protection obligations towards the applicants under the Refugees Convention, specifically concerning well-founded fears of persecution for reasons of nationality, membership of a particular social group, or political opinion. The Tribunal was required to assess whether the claimed fears of harm constituted persecution involving serious harm and systematic, discriminatory conduct, and whether state protection was available or effective in either the DPRK or South Korea. Credibility issues and the delay in leaving for Australia were also relevant considerations.

The Tribunal affirmed the decision to refuse the protection visas. It found that the primary applicant's claims of persecution were not substantiated to the required standard. While acknowledging the difficult circumstances the applicant had experienced, including abuse and threats from her daughter's father, the Tribunal was not satisfied that these circumstances met the definition of persecution under the Refugees Convention, particularly in relation to the availability of state protection in South Korea. The Tribunal also considered the applicant's delay in seeking protection and inconsistencies in her evidence. Consequently, the Tribunal concluded that Australia did not have protection obligations towards either applicant.