1612430 (Refugee)

1612430 (Refugee) [2017] AATA 1678 (22 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1612430
COUNTRY OF REFERENCE:                  The Republic of Korea
MEMBER:Christine Cody
DATE:22 September 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 22 September 2017 at 5:04pm
CATCHWORDS
Refugee – Protection visa – South Korea – Imputed Political opinion – Social Group – Family of political prisoner – Credibility Issues
LEGISLATION
Migration Act 1958, ss 5AAA, 5I-LA, 36, 65, 424AA, 499
Migration Regulation 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 [in] July 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants claim to be citizens of the Republic of Korea (hereafter referred to as South Korea). They are in a de facto relationship which commenced in South Korea [in] July 2008.
They left South Korea legally [in] September 2011, transiting through [Country 1], and arriving in Australia [in] September 2011, holding working holiday visas issued [in] May 2011 (valid until [September] 2012). Thereafter the first applicant applied for, and was granted a student visa.
They applied for protection visas [in] February 2015, with the first applicant (hereafter referred to as “the applicant”) making claims for protection, and the second applicant making no protection claims other than as a member of the first applicant’s family unit. The delegate refused to grant the visas on the basis that there was no evidence that a person in the applicant’s position (if her claims were accepted) faced a well-founded fear of persecution or a real risk of significant harm.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case is whether or not the applicants face a well-founded fear of persecution, are entitled to complementary protection, and/ or are members of the same family unit. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Department
The Departmental file
The Departmental file contains documents including a letter from the agent enclosing the applicants’ protection visa application forms and copies of the identity pages of their passports, and the delegate’s decision record. There was no interview held with the applicants. There are no non-disclosure certificates on the file.
The applicants’ backgrounds and claims as set out in the written documents can be summarised as follows:
The applicant
The applicant’s background:
·     The applicant was born in Seoul, South Korea, [in date] is aged [age] years. She speaks, reads and writes in both Korean and English. Her religion is Christian.
·     Her parents and her [brother] reside in South Korea. She is in contact with her family.
·     She lived at three different locations in Seoul from her birth until she came to Australia in September 2011.
·     She was educated from [year] until [year] (elementary to high school).
·     From December 2005 until December 2006 she worked at [Workplace 1] providing customer [services].
·     She had periods of unemployment in South Korea during which time she was financially supported by her family ([years] while at school; January to February 2007).
·     From March 2007 until September 2011, she was a self-employed [Occupation 1] in [Seoul].
·     From March 2008 until February 2010 she studied and completed [a course].
·     Her passport was issued [in] 2011. She was granted a working holiday visa [in] May 2011, and she left South Korea legally on 14 September 2011 (transiting through [Country 1]) arriving in Australia [in] September 2011.
·     She was unemployed from October 2011 – April 2014 in Australia, during which time she was supported by her family.
·     She studied and completed a course for six months [from] January to July 2014. She did not complete any other studies in Australia. Although she stated that her occupation is student, she did not suggest that she was currently studying.
·     She commenced working as [an Occupation 2] at a [Workplace 2] in May 2014, and she continues to work there.
Her claims may be summarised as follows:
·     The applicant left South Korea fearing her human rights will not be protected because of her imputed political opinion as her father was a political prisoner in the early 1980s, opposing the Korean government at the time. He was a university student at the time of a massacre of students which the government has tried to cover up. He was tortured and has suffered ever since.
·     Her job prospects and her human rights will be affected in South Korea because of her father’s imprisonment for political reasons. Her father is still claiming compensation and redress for his imprisonment.
·     She experienced physical harm by seeing her father’s distress and suffering following his imprisonment.
·     She feels that if she returns, she will be harmed or mistreated because her father’s name is recorded on her family tree and her human rights will be harmed.
·     She cannot be protected if she returns because it is government policy that her father cannot be pardoned. The current South Korean President daughter of a former military dictator of South Korea and will not protect her [at the time she lodged her protection visa application the President was Ms Park; since 2017 however it is Mr Moon[1]]
[1] same policy will apply all over South Korea and it will not help to relocate.
·     She has not been found guilty or convicted of a crime or offence in any country, nor is she the subject of a criminal investigation or criminal charges pending against her.
·     [September] 2011: applicant arrived in Australia holding a working holiday visa (subclass 417)
·      [June] 2012: applicant departed Australia.
·      [July] 2012: applicant returned to Australia.
·      [October] 2012: applicant granted a [(student)] visa
·      [September] 2014- [December] 2014: applicant resides unlawfully in Australia
·      [December] 2014: [student] visa application refused.
·      [January] 2015- [February] 2015: applicant resides unlawfully in Australia
·      [March] 2015: apply for a protection visa.
The second applicant
The second applicant was born [in date] in Seoul and is now aged [age] years. He speaks reads and writes in Korean, and he speaks in English. His religion is Christian and his occupation is [an occupation]. His parents and sister continue to reside in South Korea. He was educated in South Korea, up to the level of completion of a [course] in 2010. His passport had been issued [in] 2011. He arrived in Australia [in] September 2011, having left South Korea [in] September 2011, holding a working holiday visa which had been granted [in] May 2011, which was valid until [September] 2012.
In South Korea, he had worked as [various occupations].
He has been working in Australia since November 2012 for a [company].
He makes no claims for protection.
The Tribunal
The applicants provided the delegate’s decision record to the Tribunal with their application for review.
The Tribunal was not satisfied on the evidence before it that it was able to make a positive decision in favour of the applicants. The applicants were invited to attend a hearing before the Tribunal on 21 July 2017. The Tribunal requested, in that hearing invitation, that all documents and evidence upon which they seek to rely should be provided to the Tribunal by 14 July 2017, and that a submission should be provided accompanied by a signed declaration of the applicants confirming that it accurately and completely presents their claims. This was not done.
Two days prior to the hearing the Tribunal received an email from the agent stating that he was not instructed to attend the hearing.
The applicants appeared before the Tribunal on 21 July 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 Tribunal explained that it was considering whether the applicants met the requirements as a refugee or under complementary protection or member of family unit. The Tribunal noted that it was not bound to follow the delegate’s decision record and it would make a fresh decision on all of the evidence before it, up until the time it issued a written decision.
The Tribunal asked the applicant questions about her background and claims, and noted that she would have an opportunity to say anything further at the end of the hearing. Her evidence included:
·     Prior to coming to Australia she lived with the second applicant in his family home (from about 2008). Before that, she lived at home with her mother and [brother], who has [worked]   for the last 7-8 years. Her parents had divorced when she was in high school. Her father wanted the divorce so that he could be a Buddhist monk. Her mother does not have any problems (however she has [an illness]).
·     She maintains a relationship with her father, seeing him on average two times per year while living in South Korea. Further, when she returned to South Korea in 2012/2013, she saw him then. She and her father just talked about life. When the Tribunal asked whether they discussed anything of significance, she said no.
·     At the hearing the applicant told the Tribunal that she had provided a number of documents to her agent about her father’s situation[2]. The Tribunal noted that nothing had been received, and suggested that she call her agent in the break. After the break she said she had not been able to get hold of him. She agreed with the Tribunal organising a case officer to call him. The case officer contacted the agent who stated that the only documents that he held were copies of the application form, other DIBP forms, and copies of ID documents. He stated that he does not have any documents relating to the applicant’s father, including any medical documents. He said that he only has documents that would already be replicated on the DIBP file. The applicant was so informed; she then said she would send the documents to the Tribunal who agreed to await the documents. After the hearing she forwarded to the Tribunal some documents with translations.
·     At the hearing her only claim to have faced, or to face harm in the future, in South Korea, related to the impact on her ability to work of her family connection with her father. She said that when she applied for a job the employer screens her, and they find out about her father’s “Level one disability”. The employers do not however tell the applicant this; they do not let her know why she has not passed the test, or why she did not get the job.
·     When asked what she feared upon return, she said if she returns, she will not be able to obtain permanent work because of her father’s situation. She will not be able to maintain an ordinary life like getting employment (a permanent position). The Tribunal asked if there was anything else other than employment that concerned her and she said that she can’t think of anything at the moment. The Tribunal then asked whether she thought she would face harm because of her father’s court case (apart from not getting a job) and she said she doesn’t know the details or what kind of impact that will have on her. She said her father told her about the court case in February 2015; but he did not say that it would cause her any problems. The Tribunal put to her that it did not appear that she faces a real chance of serious harm or a real risk of significant harm because of the court case and she said that she doesn’t want to comment.
·     The evidence suggested that she and her family were in a good financial position. The applicant said that she had been supported in Australia for over two and a half years (from October 2011 until April 2014) by her savings accumulated from her work in South Korea before she came to Australia, as well as monies from her family. The Tribunal said that this indicates that she has been able to survive in Australia from significant resources available to her; she claimed that she would have to pay her family back. The Tribunal put to the applicant that it appears that she has done pretty well in South Korea; she had managed to undertake a high level of education ([course]) and she managed to get a job in [Workplace 1] and accumulate savings; the Tribunal put to her that the family does not seem to have been adversely affected.
·     The Tribunal put to the applicant at the end of the hearing that it had concerns about the credibility of her claims about the past, her father, and her future employment situation. It also said that even if it did accept that her father had been a political prisoner in 1980s, she seems to have achieved quite a lot in South Korea so it doesn’t seem that she has been affected or that there would be consequences such that she faces a real chance or a real risk of being affected to the level of serious or significant harm. In response, the applicant said no comment. The Tribunal also noted that it did not have country information to support that a person in her position faces a real chance of serious harm or a real risk of significant harm. The applicant did not suggest to the Tribunal that there was such country information, nor did she provide any such information after the hearing. While the Tribunal notes that country information is not required to support claims, it remained concerned that her claims were assertions, especially in light of the concerns about her credibility.
[2] The applicant also referred to discussions with her agent, who is a solicitor; the Tribunal told her that she did not have to tell the Tribunal anything she had discussed with her solicitor, and suggested that she talk to him first before telling the Tribunal anything she discussed with him. She did not provide any further evidence about her discussion with her solicitor to the Tribunal after the hearing; she remained represented by her agent.
The second applicant confirmed in his evidence that he has no concerns or worries about returning to South Korea. He said at the hearing that the applicant will face problems getting a job when she goes back, because of her father, he also said that he was concerned that they may have to look after the father because of his mental illness.
After the hearing, the applicant provided four documents to the Tribunal relating to the father.
Further relevant evidence is set out below, as well as information put to the applicants pursuant to section 424AA of the act.
FINDINGS AND REASONS
Country of reference
The applicants both claim to be citizens of South Korea. They both provided their passports at the hearing. The Tribunal accepts that the applicants are nationals of South Korea, and that the appropriate country of reference for the assessment of the refugee criteria, and the receiving country for the purposes of the complementary protection criteria, is South Korea.
Member of Family Unit
The applicants both claimed in their application forms to have lived together since July 2008 in South Korea. Although the addresses they provided since that time in South Korea were different, the Tribunal has observed them at hearing and is prepared to accept that they are in a de facto relationship.
Credibility
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 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).
Having considered the relevant evidence, the Tribunal has concerns about the veracity of the applicant’s claims, and her claimed reasons for fears upon return to South Korea.
Firstly, the Tribunal was concerned that there was changing and inconsistent evidence provided about her father’s situation, as set out below.
·     The applicant gave changing and inconsistent evidence as to whether or not her father had problems in South Korea. Initially the applicant said that her father has no problems with anyone, including the state; his only problem is that he [has a mental health condition] and has to see a doctor and take medication. She later changed her evidence. The Tribunal put to her that she had earlier given evidence that he has no problems with the state; she did not explain why she changed her evidence. When the Tribunal asked about his problems with the state she then said that she doesn’t know all the details but he is in mid-trial in relation to the previous 18 May democratic movement with which he was involved for two years. He was imprisoned for one year. This ended a long time ago; he has no political involvement now. He has however been blacklisted on their family registry and the state appointed him as a man of merit and he was acknowledged as a level one disability person and he could not find any job because of the disability level.
·     She was vague about how long her father had been blacklisted; she said she did not know; it was before the change in President but she has no idea when. She was also vague about how long the court proceedings have been ongoing; eventually she said that maybe he lodged a lawsuit against the state about five years ago and this was because he had problems of discrimination and disadvantages, namely he was allowed to receive benefits but was classified as a person with disability, so couldn’t get employment. The Tribunal put to her that perhaps if he had a mental health disability this could be the reason why he is considered as having a disability. She responded that all Men of Merit receive a disability entitlement; it is about benefit entitlement and as they were classified as disability they have to live with this for the rest of their life.
·     She claimed that she has inherited the title of man of merit because she is the daughter of her father. The Tribunal put to the applicant that it had not seen any country information suggesting that a person in her position faces a real chance or real risk of harm and she gave changing evidence. Firstly she said that she does not have evidence of this, then she said she could get evidence of this from the Korean Embassy. The Tribunal asked her to confirm that she could get evidence that she suffers discrimination in South Korea from the South Korean Embassy and she said that she handed all the relevant documents to her agent. However when the Tribunal asked whether the documents she gave to her agent show that she faces harm, she responded no, that it is not documented. While the Tribunal noted that it was not necessary to provide country information in support, it was concerned with her changing evidence as to whether or not there is documentary evidence showing that she faces a real chance of serious harm or a real risk of significant harm.
·     After the hearing, the applicant produced the Tribunal a Prison Inmate Status Card dated [in] February 2015 stating that the father had been a [student]; he had been the subject of a warrant for breach of martial law and had been subjected to a 1^st trial sentence of seven years [in] October 1980: a second trial sentence of five years [in] December 1980, and that he had lodged appeals to higher court [in] October 1980 and [in] January 1981 (the results of the appeals not stated). This document caused the Tribunal concern as the applicant claimed that her father had being imprisoned for one year, not five years, or seven years, or in combination, 12 years. The Tribunal considers that if there had been a successful appeal, reducing his sentence to one year, the document (issued in 2015) would have specified this. This appears to be a significant inconsistency in relation to the length of time that her father was imprisoned, which the applicant has not explained. The Tribunal has also considered the possibility that the appeals have been ongoing/outstanding since 1980 and 1981, however, this is inconsistent with the applicant’s evidence, which was that her father’s court case had been ongoing for about the last five years. Further, this document does not indicate that the father has ever been released; and the applicant has not provided any explanation as to why there is no release date on the document. The Tribunal considers that the inconsistencies between the document and her evidence about her father’s situation, undermine the claims in relation to the father.
·     The applicant also produced two out of 34 pages of a Plaint from a Law Firm in South Korea which is undated (translated [in] March 2015). It states that her father and some other people have sought compensation against the government starting from [October] 1978 because they were forcefully taken without warrants for Breach of Presidential Emergency Decree No.9 and were interrogated by the investigative agencies while illegally detained for a long time and then were sentenced for imprisonment for the breach of the Presidential Emergency Decree and then later were released from the prison”. No further details or information was provided in relation to the claimed Plaint. The Tribunal noted that the contents of the pages produced were different to the applicant’s evidence in a number of respects: in her application form she said that her father was imprisoned in the early 1980’s; she also told the Tribunal this. However, the document claimed compensation and accumulated interest starting from [October] 1978. If her father had been detained since [October] 1978, and assuming he remained detained at least until the second trial in December 1980 (there is no evidence he was released earlier), this would mean that her father had been detained for at least two years, not the one year claimed by the applicant. While the Tribunal accepts this is a long time ago, it is the applicant’s claim that her father was imprisoned and tortured during that time; given the circumstances, the Tribunal would think that she would be able to tell the Tribunal how long he was imprisoned for. Further, the document does not appear to contain a date, nor any official stamp showing that it was lodged. The Tribunal was concerned that the document itself indicated that there were 34 pages, yet the applicant did not produce the following 32 pages; the Tribunal would think that she would have done so if this would have assisted her claims.
More generally, the applicant told the Tribunal at hearing that there were about 100 pages available relating to her father; she has not however provided to the Tribunal anything approaching that amount, nor did she explain why she did not do so[3]. The Tribunal’s concerns were heightened because it appears that these documents were translated [in] March 2015, namely some three weeks after she lodged her protection visa application, and well before her application was refused by the Department. The Tribunal put to the applicant at hearing that it was her responsibility to make her case. She remains represented by her agent (although he was instructed not to attend the hearing). The applicant had been asked to provide evidence and documents in support of her claims to the Tribunal on numerous occasions[4], but did not do so until after the hearing. There was inconsistent information as to whether or not the applicant had provided documents to her solicitor/agent. At the hearing, the Tribunal said it would wait to receive the documents and would consider them. It noted that it had not seen the documents but that it did have concerns with her credibility and it noted that false documents could be obtained from South Korea[5]; it would have to consider the weight to be given to such documents.
[3] She entitled her third email as the “last” email; she had emailed a total of 21 pages (some being repeats).
[4] Letter dated 15 August 2016 stating that if the applicants wish to provide material or written arguments for the Tribunal to consider, they should do so as soon as possible. Information Sheet accompanying that letter, provided after receipt of application for review, stating that if they have any material not yet provided, which they believe supports the application, this should be sent in as soon as they can. If they provides further information or evidence that was not given to the Department, the Tribunal may need to consider the credibility of what has been provided and why it was not provided to the Department; letter to the applicant’s agent requesting that all documents and evidence upon which the applicant seeks to rely be provided to the Tribunal by 14 July 2017, namely one week prior to the hearing.
[5] Falsified academic records, 2007: 100 people indicted for falsifying safety documents affecting South Korea’s nuclear power plants, 2013: Falsified documents used in South Korea concerning emissions tests, 2017: >
Secondly. the Tribunal was concerned with the applicant’s delay in coming to Australia once her visa was granted, if indeed her situation was as difficult as she claimed. The Tribunal asked the applicant to explain the harm she has experienced in South Korea. She responded that the [Workplace 1] job was not permanent position, it was not stable and in living in Australia both she and the second applicant can work. In South Korea she will only be able to get a part-time job, and not a permanent position. The Tribunal put to the applicant that if her situation was as difficult as she claimed, it did not understand her delay in leaving. The Tribunal noted that her visa was granted in May 2011, but she did not arrive in Australia until [September] 2011[6]. It did not sound like she was in a hurry to leave. In response the applicant said she couldn’t save enough of the required money to come earlier. The Tribunal asked her whether she had to show to the Department that she had some funds before she applied for her visa, and she said yes. The Tribunal put to her that she had that money, she could have come straight away. She then changed her evidence and said that she needed some time to sort things out and wrap things up. The Tribunal put to her that it did not understand why, if she was coming for one year, she needed to wrap things up for four months beforehand. She said that she was living with her de facto husband and they needed to get engaged. When the Tribunal put to her that it still did not seem like she was in a hurry to leave, she also said that she was not aware of the four months duration it took her to come. She also said that her initial intention was not to escape, it was only when she spent some time here that she saw how bad the situation was for her back in South Korea. The Tribunal does not consider her responses to be persuasive. The Tribunal considers that her four-month delay in leaving South Korea once she had been granted her visa to come to Australia undermines her claim that she had any genuine concerns about being in South Korea. It also notes her claim above that she survived from her savings/her family’s money for a period of almost three years in Australia (2011-2014) appears to undermine her claim that she did not have enough money to come when her visa was granted.
[6] See application form.
Thirdly, the Tribunal was concerned with the applicant’s 3.5 year delay in claiming protection (which she did [in] February 2015) after her arrival in Australia [in] September 2011. In this regard, the Tribunal was also concerned that she initially held a working holiday visa which expired [in] September 2012, however instead of then apply for protection visa, she applied for a student visa [in] September 2012. Further, although she had a student visa granted from [October] 2012, it appeared, according to her protection visa application form, that she only studied for six months from January to July [2014].
The Tribunal was concerned about what the applicant had been doing in Australia. She gave inconsistent, and vague and evasive evidence about her work in Australia. Although she claimed in her protection visa application form to have only started working for [Workplace 2] in May 2014, when the Tribunal asked her the work she did while she had a working holiday visa, she appeared to avoid the questions and her evidence was vague and evasive. The Tribunal asked what work she did when she first came to Australia (holding a working holiday visa) and she said she did [work] with [Workplace 2]. The Tribunal noted that her application form only declared her work for them from May 2014; she then said that her job was not official. The Tribunal asked her to explain why the job she had, while holding a working holiday visa, was not official, and she said that she could not communicate with them properly. The Tribunal noted she was not explaining clearly and simply what she was doing in that first year and why, when she worked for [Workplace 2], it was not “official”. The Tribunal considers that her evasive evidence undermined her credibility. Further, the Tribunal was concerned that her evidence about her later activities was also vague. The Tribunal asked what her next visa was and she said “entertainment, no business”. She then said [course name] but she was not sure of the name of the course. The Tribunal asked how long she studied this course and she said 1.5 or two years. The Tribunal asked why she said in her protection visa application that she only studied for six months (January-July 2014). She did not explain other than to say that she did a language course for 6 to 8 months, and she only studied for a total of one year. The Tribunal also noted that she was granted her student visa [in] October 2012[7], but she only started studying her [course] in January 2014.
[7] see delegate's decision record provided to the Tribunal by the applicants
The Tribunal then put to the applicant that if she feared harm, it did not understand why she made an application for a student visa, instead of making an application for a protection visa. The Tribunal put to her that she is an educated person; she would have access to the Internet; and she had employment. The Tribunal put to her that it was difficult to accept that she did not obtain any migration advice on her position. In response she said that she wanted to study at Australian university but she had to do business because of English. She was ignorant about protection visas. The Tribunal put to her that this was difficult to accept; she had arrived in September 2011, she had a one year working holiday visa, she was working unofficially (about which the Tribunal has no clear details) and she was able to survive in Australia and lodge an application for a student visa, then study for one year; she had undertaken many activities, except enquiring about/ applying for a protection visa. She said no comment. The Tribunal considers that her delay in applying for a protection visa for such a period, and in these circumstances, undermines her claims.
The Tribunal notes that she had made a further application for a student visa refused [in] December 2014. The Tribunal also put to her that she had applied for another student visa, instead of applying for a protection visa. In response she said that while she was applying for a [second] student visa she became a victim of a fraudulent immigration agent. She said she was not sure if she was able to meet the conditions of protection visas at that time, she did not know about protection visas. Even if she encountered a fraudulent agent in 2014 (which the Tribunal is not prepared to accept), the Tribunal is not satisfied with her explanation as to why she did not apply for a protection visa earlier, after her arrival in September 2011. The Tribunal considers that this undermines her credibility and her claims.
Fourthly, the Tribunal noted that the applicant had returned to South Korea since she has been in Australia (June/July 2012[8]); which would indicate she didn’t have any fears or worries or concerns about going back. The applicant did not respond other than to say that she had to stay there for one month because her mother was sick. The Tribunal considers that this indicates that the applicant does not have any genuine fear of harm in South Korea for any reason.
[8] Refer to passport stamps
Finally, The Tribunal had concerns about the credibility of the applicants concerning the applicant’s claims. As put to both applicants pursuant to s.424AA of the Act: The applicants gave inconsistent evidence about the reason for lodging the protection visa application. The applicant said that she had suffered discrimination and disadvantages in the past because of her father’s status, and this was why she was concerned and this is why they came to Australia, the second applicant however gave evidence that it was only in about January 2015 that they became worried and fearful, and this was why they lodged the protection visa application [in March 2015].
In response, the applicant said she does not want to continue, the Tribunal is not listening, she does not agree. The Tribunal explained that it had not made up its mind, and this was her opportunity to give evidence. She said she does not want to say anything. The second applicant said it is about Korean sentiment which is difficult to describe and he does not want to. The Tribunal does not find these explanations to be persuasive. The Tribunal considers that the applicants, who travelled together to Australia, and have been living together in Australia ever since, would give fairly consistent evidence about the reason for the applicant’s concerns and the lodgement of the protection visa applications.
The Tribunal also put to the applicant its concern that the second applicant, her long-term partner, who was prepared to claim to the Tribunal that the applicant could not get a job, did not know that she had a job in a [Workplace 1] for one year. The Tribunal considered that this inconsistent evidence about her work undermines the claims about her work history. In response, the second applicant said that he just was now reminded of that employment and after a six-month position, people get permanent positions automatically but her employer did not give her permanent position. The Tribunal does not find this persuasive, and considers that if this was the case, the second applicant would have remembered to tell this to the Tribunal, especially as he was prepared to discuss her employment. The Tribunal considers that this inconsistent evidence undermines the credibility of the applicants.
Other matters
While the Tribunal notes that the applicants gave some consistent evidence (for example that she went for a job interview and the company marked down her interview scores because of the different ideology of her father); this does not overcome the Tribunal’s concerns with the applicant’s credibility and the claims.

Documents relating to her father’s status: In addition to the Plaint referred to above, the applicant provided a “5.18 Democracy Man of Merit Confirmation Certificate”. It was stated to be confirmation by [the] Ministry of Patriots and Veterans affairs, that the classification of [her father’s] injury is “Disability level [number]”, and that he has applied under section 4 and 5 of the Respectful Treatment for 5.18 Democracy Man of Merit Act. Having regard to the Tribunal’s concerns with the Plaint document, and the concerns with the applicant’s credibility, on the evidence before it, the Tribunal is not prepared to give weight to these documents.
Credibility of claims summary
Considered cumulatively, the Tribunal considers that the available evidence indicates that the applicant’s claimed fears of past and future harm, upon which she has based her protection claims, are not true, and the Tribunal is not satisfied as to the credibility of the applicants in this regard.
Findings on the applicant’s claims
As noted above, after hearing, the applicant provided to the Tribunal relating to the father, including her Certificate of Family Relations showing that [the name] is her father and [name] is her mother. The Tribunal is prepared to accept this, noting that her father’s name is consistent with that claimed in her protection visa application form (although in her application form, her mother’s name is “[another name]”; the Tribunal is prepared to accept that was an error). The Tribunal is also prepared to accept that her parents are separated.
The applicant also provided a Medical Certificate dated [in] April 2013 for her father stating that he was diagnosed as suffering from [mental health conditions]. He visited the hospital due to [various symptoms] and so forth. As a result he was hospitalised for [December] 2012 until [March] 2013. Continued observation and treatment is required in the future. The Tribunal is prepared to accept that her father has some mental health problems.
The applicant claimed that she had been adversely affected in her life due to her father’s past, and his record with the authorities. She also claimed that if she returns, she will not be able to obtain permanent work because of her father’s situation. The Tribunal put to her that she did not appear to have suffered harm in the past, noting her evidence that she had obtained three government scholarships when she was studying, that she had obtained education starting in primary school, until her completion of a [course]. She had also managed to work in [Workplace 1]. Further, the Tribunal noted that she had been able to come to Australia.
The Tribunal has carefully considered the applicant’s claims about her father’s past. It is not satisfied that it should place weight on her oral evidence, nor on the documents relating to his status. Further, the Tribunal has general credibility concerns with the applicant, and there is no country evidence provided to the Tribunal which could support that the applicant’s claims are true (while noting this is not necessary).
The Tribunal is not satisfied that: the applicant’s father was a political prisoner who was tortured and has suffered ever since, that he was adversely affected in seeking work or in his life thereafter, that he commenced a court case seeking compensation, that the applicant has been affected by her father or has a family history known to authorities and employers which means that it makes it difficult for her to get a job, that the applicant has had difficulties in obtaining work, nor that the applicant has any imputed political opinion due to her father or for any reason. It does not accept that her human rights have to date been adversely affected. The Tribunal does not accept any of the claims that flow from these claims.
At the hearing the Tribunal put to the applicant that there were credibility concerns about her claims, and that even if her claims in relation to her father were true (which it does not accept), it did not see how this affected her (other than her claim that she could not get a job because people would check her record and see that her father had been blacklisted). She did not make any other claims to face serious or significant harm. The Tribunal notes that the applicant did not claim to fear any harm from the government or its agents as a result of the claimed court case. Further, there is no satisfactory evidence before the Tribunal, that, even if the applicant’s evidence and the documents provided were taken at face value and if it was accepted that the applicant’s father had been a political prisoner in the 1980’s and he had been unable to obtain a job for that reason and had been given a disability pension (which it does not accept) that the applicant faces a real chance of serious harm or a real risk of significant harm for being connected to her father.
As the Tribunal does not accept that the applicant has had difficulties in getting work in the past, considering her past education and work experience in Korea and Australia, on the evidence before it, it does not accept that she faces a real chance of serious harm or real risk of significant harm for reasons of not being able to obtain employment.
While the Tribunal has been prepared to accept that the applicant’s father has mental illness, it was the applicant’s evidence that he had not lived with her for a long time, and the Tribunal is not satisfied that the applicants face a real chance or real risk of having to care for the applicant’s father which would lead to either of them suffering a real chance of serious harm or real risk of significant harm.
The Tribunal is not satisfied on the evidence before it that there is any reason for considering that either of the applicants face a real chance of serious harm, including any imputed political opinion or any breach of their human rights.
The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that the applicants are not credible witnesses concerning past or future harm feared in relation to the applicant, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that she does not have a well-founded fear of persecution for any of the reasons put forward by her. Similarly, the Tribunal is not satisfied that the second applicant has a well-founded fear of persecution for any reason.
The Tribunal does not accept that there is any credible evidence to support that the applicants face a real chance of persecution in South Korea. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicants do not meet the criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
The Tribunal has accepted that the applicants are a young de facto couple from South Korea, both of whom have work experience in both South Korea and Australia. For the reasons discussed above, the Tribunal is not satisfied as to the majority of the claims. The Tribunal does not accept that the applicant experienced past serious or significant harm, and nor has her father, nor has it accepted any of the claims flowing from these claims. The Tribunal considers that they are resourceful persons who have managed to survive in a foreign country. The Tribunal considers that they will return to live in their home area of Seoul where they have family members, and they will work again in their home country. It does not accept that the applicants face a real risk of discrimination or significant harm for any reason. The Tribunal is not satisfied that in the applicants’ particular circumstances, they face a real risk of significant harm from any authority or employer or being targeted or subjected to discrimination or persecution or any other harm for any reason.
The Tribunal is not satisfied that there is a real risk that they will face a real risk of adverse attention amounting to significant harm, from anyone, for any reason.
On the evidence before it, and for the reasons discussed above, and having considered the claims singularly and cumulatively, 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, namely South Korea, that there is a real risk that they will suffer significant harm. Accordingly, the Tribunal finds that the applicants do not satisfy the requirements of s.36(2)(aa) of the Act.
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 are persons 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), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Christine Cody
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 1678

22 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing