1612041 (Refugee)

[2019] AATA 6811

1612041 (Refugee) [2019] AATA 6811 (13 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612041

COUNTRY OF REFERENCE:                   Korea, Republic Of

MEMBER:Tania Flood

DATE:13 December 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 December 2019 at 1:25pm

CATCHWORDS
REFUGEE – protection visa – Republic of Korea – particular social group – South Koreans over fifty years old – fears harm due to long term residence outside South Korea – economic hardship – discrimination – lack of evidence – remained unlawfully in Australia for years – ill partner’s carer – emotional hardship – referred to Minister – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 48, 65, 417, 499
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 July 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of the Republic of Korea, applied for the visa on 5 August 2015. The delegate refused to grant the visa on the basis that there is no authoritative evidence to support that persons’ over 50 years of age in South Korea have a real chance of suffering serious harm for that reason or for having long term residence outside of South Korea.  

3. The applicant was invited to attend a hearing of the Tribunal on 19 December 2019 at 11:00 am ([specified] time).  The applicant’s representative contacted the Tribunal on 28 November 2019 to advise that the applicant declines the invitation.  The applicant’s representative advised that the applicant has requested that a decision be made on the papers.  In the circumstances, the Tribunal has proceeded to make a decision without taking further steps to interview the applicant.

   Criteria for a protection visa

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

7. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

9. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether there is a real chance the applicant will face serious harm if he returns to South Korea for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to South Korea there is a real risk that he will suffer significant harm.  

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

    Summary of claims

12. Based on the information contained in the application for a Protection visa the applicant is a [male] from [South Korea].  He listed his occupation as [occupation].  He has a wife and [daughters] living in Australia. He has [a number of siblings] in South Korea.  He came to Australia in 2005 holding a [temporary] visa.  He was previously refused a  visa in Australia due to condition [specified].

13. The applicant states that he fears harm in South Korea on account of his membership of a particular social group – South Koreans over the age of fifty.  He states the harm he fears is economic hardship and that the high rate of elderly suicides for this reason has increased his fear of returning to South Korea.  He claims the government does not care about the situation and economic hardship cannot be resolved by relocation to another part of the country.

14. In a submission to the Department which is dated 5 August 2015 it is claimed:

15. The applicant will be denied the capacity to earn a livelihood in South Korea on account of his age.

16. South Korea is an economically prosperous country however this does not always translate into good care for its aging communities.  It has the lowest ranking in terms of economic security for the elderly.  It is stated that 41.5% of South Koreans over the age of 65 live on less than half of the country’s median household income.

17. Many believe this crisis is because companies often force employees in the fifties to retire out of preference for younger workers.  Furthermore, the public pension scheme was newly established in 1988 therefore people who retired in around mid-2000 have acquired little or no retirement benefits. 

18. The main cause of suicide for the elderly is the economy.  Economic hardship can lead to health problems and family conflicts which together increase the rate of suicide.

19. The applicant has resided in Australia since 2005 with his family including his spouse and daughters.  He has integrated into Australian society and has adapted to the economic standards of this country as afforded to all ordinary citizens.

20. In a submission to the Tribunal dated 28 November 2019 the applicant requested that a decision in this matter be made on the papers. 

21. It is submitted that since the lodging of the Protection visa application the applicant’s circumstances have changed considerably.  His partner was recently diagnosed with [a medical condition] and as a consequence has had to under surgery and will require further [treatment] for the foreseeable future.  His partner is an Australian citizen and requires his daily physical and emotional care.  The couples’ daughters are unable to provide this support because they have young children and insufficient time to allocate to caring for their mother.

22. It is submitted that the change in circumstances falls within the Ministerial Guidelines and are of the type that could be brought to the Minister’s attention under s.417 of the Act.  The applicant is requesting that the Minister lift a s.48 bar which was imposed on the applicant from a previously refused visa application and substitute a Visitor visa thus opening a pathway and opportunity for him to apply for a Partner visa and remain in Australia with his partner.

23. All the applicant’s family members, including his partner, daughters and grandchildren are Australian citizens.

24. Attached to the submission is a medical report, copies of birth certificates and citizenship certificates and statutory declarations from the applicant’s daughters.

    FINDINGS AND REASONS

25. Attached to the Department’s file is a copy of the applicants Republic of Korea passport which verifies his claimed identity and nationality.  In the absence of any information to the contrary the Tribunal accepts he is a national of South Korea.

26. On the available evidence the Tribunal accepts the applicant is [a certain age]; that his partner and [daughters] and their children are all Australian citizens.  Based on the information contained in his application for a Protection visa the Tribunal finds the applicant has [a number of siblings] who live in South Korea.  The Tribunal also accepts that the applicant’s partner is undergoing treatment for [a medical condition].  

27. On the available evidence the Tribunal finds the applicant last arrived in Australia on a [temporary] visa [in] May 2006.  The evidence indicates he resided unlawfully in Australia from 18 September 2006 to 13 July 2009 and again from 12 September 2009 to 18 August 2015 before applying for a Protection visa on 5 August 2015.

28. The Tribunal accepts the applicant is apprehensive about leaving his family in Australia and returning to South Korea after a long absence from the country.  The Tribunal accepts he would prefer to live in Australia with his family and to be in a position to care for his partner as she undergoes treatment for [a medical condition].

29. The Tribunal acknowledges that the applicant’s long absence from South Korea and his age, may present challenges for him in obtaining employment.  Notwithstanding this, the information contained in his application for a Protection visa indicates that from 1982 until 2005 the applicant was the proprietor of a [business] in South Korea.  The Tribunal considers this experience will assist him in his search for employment in South Korea.

30. Country information also indicates that the South Korean government has passed legislation that specifically deals with age discrimination in employment.  The Prohibition of Age Discrimination in Employment and Aged Employment Promotion Act not only prohibits age discrimination in employment but also promotes aged employment.[1]  The South Korean state has taken affirmative action to provide employment opportunities for older South Koreans by raising the minimum age of retirement, providing grants and incentives to employers who employ older South Koreans and encouraging older South Koreans to remain in the workforce.  The country information indicates that there are companies in South Korea that specialise in providing employment for older people.  It indicates that there is, for instance, one company that only employs people 55 years and older and has 420 employees aged 55 to 83 years.[2]

    [1] South Korean startup only hires people over 55, to Fight Age Discrimination, Oddity Central, 15 June 2017 >

    In view of the above, the Tribunal is not satisfied that the applicant would not be able to obtain employment or that he would not be able to subsist if he returns to South Korea now or in the reasonably foreseeable future.  In forming this opinion the Tribunal also notes the applicant has [siblings] residing in South Korea and there is nothing before the Tribunal to indicate that they would not assist him financially and/or emotionally if he returns to South Korea and while he searches for employment.

31. The Tribunal finds there is not a real chance or a real risk that the applicant will suffer serious or significant harm if he returns to South Korea for reason of his membership of a particular social group, namely South Koreans over the age of fifty.

32. The Tribunal accepts that the applicant has integrated into Australian society and has adapted to Australian standards.  However, the Tribunal does not accept that this means there is a real chance or a real risk that he will suffer serious or significant harm if he returns to South Korea.

33. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act.

34. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

    RECOMMENDTION FOR CONSIDERATION OF MINISTERIAL INTERVENTION

35. It has been submitted that the applicant’s circumstances warrant the Minister’s intervention to enable the applicant to remain in Australia. 

36. The Tribunal notes that the Minister has a discretionary power to intervene in a matter and grant a visa to an applicant where he considers it would be in the ‘public interest’ to do so.  The Minister’s Guidelines state that the public interest may be served where the Australian government ‘responds with care and compassion’ where an individual’s situation involves ‘unique and exceptional’ circumstances, which are said to include:

    -    strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

37. The applicant has resided continuously in Australia for the past thirteen years and all his close family members, including his partner, his daughters and grandchildren are Australian citizens.  The Tribunal accepts on the available medical evidence that his partner has had [surgery] recently and is receiving ongoing treatment for her condition.  The evidence supports that the applicant is best placed to provide her with the physical and emotional support she needs at this critical time in her life. 

38. The Tribunal acknowledges that the applicant has flouted Australia’s immigration laws by residing unlawfully in the country for a number of years.  The Tribunal does not condone this behaviour but considers his Australian citizen partner will suffer serious and ongoing emotional and possibly physical hardship if the applicant is forced to return to South Korea.

39. For these reasons, the Tribunal considers that the circumstances warrant that it recommends to the Department that it conducts an assessment of their circumstances, including a consideration of the matters raised above and, accordingly, provides an appropriate submission to the Minister for his consideration.

    DECISION

40. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Tania Flood
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …