1620934 (Refugee)

1620934 (Refugee) [2020] AATA 6186 (11 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1620934

COUNTRY OF REFERENCE: Korea, Republic Of
MEMBER:Christine Cody
DATE:11 September 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 September 2020 at 7:56pm
CATCHWORDS
REFUGEE – protection visa – Republic of Korea – particular social group – lesbian – social denigration – singleness – period of unlawful residence – delay in applying for protection – return visits to South Korea – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Dranichnikov v MIMA [2003] HCA 26 (2003) 77 ALJR 1088
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant, who claims to be a citizen of the Republic of Korea (South Korea), applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 12 November 2015. A delegate of the Minister for Immigration and Border Protection refused to grant the visa on 30 November 2016. This is an application for review of the delegate’s decision.
Migration history[1]
[1] Information sourced from the delegate’s decision record, a copy of which was provided to the Tribunal, and the applicant’s application form.
The first time the applicant arrived in Australia was [in] February 2009, holding a UD 976 electronic travel authority visa. While onshore, she applied for a [tourist] visa on 15 May 2009, which was granted on 20 May 2009. The applicant departed Australia [in] August 2009.
The applicant returned to Australia [in] September 2009 as the holder of a UD 976 electronic travel authority visa. On 16 December 2009 she again applied for an onshore [tourist] visa, which was granted on 4 January 2010, valid until 4 February 2010.
The applicant did not depart Australia before the expiry of her visa, and became an unlawful non-citizen on 5 February 2010.
She was detained by the authorities while unlawfully present; she then departed Australia [in] June 2011[2].
[2] The applicant gave this evidence at the first Tribunal hearing.
The applicant returned to Australia 4 years later: [in] July 2015 with a UD 601 electronic travel authority visa. She applied for a protection visa on 7 October 2015. The applicant’s first application for protection was found invalid on 17 October 2015 due to not providing biometrics. She applied again on 12 November 2015. The Department accepted that application as valid.[3]
[3] Information sourced from the delegate’s decision record, a copy of which was provided to the Tribunal, and the applicant’s application form.
The Department
The Department file contains various documents including two copies of the application forms and the ap plicant’s written statement setting out her claims for protection,[4] a copy of the applicant’s passport and a copy of the delegate’s decision record.
[4] The invalid and valid versions which do not contain any significant differences; in this decision the Tribunal refers to the valid versions.
According to the application forms and statement, the applicant’s claims and background can be summarised as follows:
- The applicant is an ethnic Korean who was born on [date] in Wuchang, Heilongjiang, People's Republic of China (China). The applicant was a Chinese citizen at birth. The applicant lists no religion. The applicant speaks, reads, and writes Korean, and speaks Chinese.
- She resided at a single address in China from January 1985 until August 1997.
- She married in September 1997 and went to live in South Korea. The applicant divorced in October 1998 in Seoul, South Korea. [In] February 2000 she became a South Korean citizen, and she was no longer a Chinese citizen.
- The applicant’s father and mother are deceased.
- The applicant attended primary and secondary school in China until [year]. The applicant was unemployed from [year] until December 1989. The applicant then worked as a salesperson in a [Business 1] in Wuchang City from January 1990 until December 1996. The applicant was then unemployed from January 1997 until October 1998. The applicant then worked as a salesperson at a [different Business 1] in [a location in] Seoul, South Korea from October 1998 until June 2015. The applicant has been unemployed since.
- The applicant states that she is seeking protection against South Korea. When she was growing up in China, she considered that she was different from other children. She did not like girly clothes or makeup, and was not understood by others. When she began to work, she tried to change slowly. She thought she might have a problem, but could not tell her parents, and she did not have any friends.
- The applicant’s behaviour and activities drew other people’s attention, and her parents pressured the applicant. In order to make her parents happy, the applicant began dating boys, but felt disgusting and ugly, and knew she could not be in such a relationship. The applicant knew that she liked women and did not like men. The applicant was too scared to show her character. The applicant moved to South Korea but was still scared, as she could not change herself.
- The applicant came to Australia and realised that no one in Australia cares about one’s sexual orientation. The applicant believes that she could be peaceful and happy in Australia.
- After her return to South Korea in 2011 (and before she returned again to Australia in 2015), the applicant travelled to China twice: to visit family from [March] 2013 until [April] 2013, and to attend a relative’s wedding from [in] January 2014.
The interview and delegate’s decision record
The applicant was invited to attend an interview with the Department on 28 November 2016, but did not attend nor did she contact the Department[5].
[5] The Departmental file indicates that the letter inviting her to interview was not collected from the post office, but it was delivered to her home on the day of the scheduled interview.
The delegate refused the application on 30 November 2016. The delegate found that the applicant was born in China as a Chinese citizen to Chinese citizen parents. She acquired South Korean citizenship [in] February 2000. The delegate noted that the nationality laws of both China and South Korea do not ordinarily allow dual citizenship, although South Korea makes a number of exceptions under certain conditions, especially for children who might be born as dual citizens and for foreign spouses who are resident in South Korea.
Based on the fact that China does not allow or recognise dual citizenship in any circumstances, the delegate found that the applicant lost her Chinese citizenship, at least in theory, when she became a citizen of South Korea. While the applicant has not provided any information as to the procedures she followed on becoming a South Korean citizen, including whether she informed the Chinese authorities that she was taking on an alternative citizenship, the delegate found that she does not currently have citizenship of, or a current right to enter and reside in, China.
The delegate found that the written material does not provide a sufficient basis to be satisfied that the applicant is, in fact, a lesbian or that she faces harm of any kind for such a reason on return to South Korea. The delegate also found that, in her written claims, the applicant did not specify any particular persecutors, nor that any persecutors would commit any specific harm against her. For example, she did not indicate that she would be persecuted or harmed by any State agents of South Korea. She did not indicate that she would be persecuted or harmed by any non-State agents in South Korea. At most, the delegate found that the applicant indicated that South Korean society in general terms disapproves of lesbianism, causing her to feel scared to inform people that she is lesbian.
Given that the applicant has not specified any particular persecutors or any particular harms against her, the delegate was not satisfied that any particular action towards the applicant would be taken by any person in South Korea because she is lesbian. The delegate was not satisfied that the membership of a particular social group (lesbians) is a reason for persecution, and therefore found that the applicant was not a refugee. The delegate found that the applicant did not claim any harm that would fall under the complementary protection criteria. The delegate thus rejected the application.
The Department file does not contain any non-disclosure certificates.
The Tribunal
The applicant applied to the Tribunal for review of the decision on 8 December 2016. She was represented by her registered migration agent. The file was constituted to the member on 5 December 2019. She was represented by her registered migration agent. The applicant has provided a copy of the delegate’s decision record to the Tribunal.
To help slow the spread of COVID-19 (coronavirus), the Tribunal ceased holding in-person hearings at AAT premises in March 2020. The Tribunal considered the written material before it; however, it was unable to make a positive decision on the papers. It decided to invite the applicant to a telephone hearing to give evidence and present arguments. The applicant was informed that she could object to the hearing being held by telephone, but she did not do so. She responded to the hearing invitation and attended a telephone hearing before the Tribunal on 8 July 2020. Her agent had indicated that he would not be attending.
At this hearing, the Tribunal provided an introduction and noted that this was a telephone hearing, and the applicant had not indicated any objection to the hearing being conducted by telephone. The Tribunal noted that it had to make up its mind on all her claims and background and consider what should or should not be accepted, which will involve the Tribunal asking questions about her background and claims. The Tribunal asked if the applicant felt comfortable proceeding by telephone, and said that if she did not, it could arrange for a video hearing in the near future via MS Teams. The applicant said she had no objection to proceeding by telephone. The Tribunal said that she could raise an objection at any stage during the hearing, especially if she was concerned about any sensitive issues. The applicant appeared comfortable to answer all questions at the first hearing. In addition, she had requested the Tribunal take evidence from her boss/friend, [Witness A]. Although the applicant through her agent had not complied with the Tribunal’s request that any proposed witness should provide a witness statement setting out the witness’s evidence by 1 July 2020, the Tribunal agreed to take evidence from the witness by telephone.
Towards the end of the hearing the Tribunal had some concerns about the applicant’s claims and decided to adjourn the hearing to a video hearing by MS Teams which the applicant said she thought would be possible to organise.
The hearing was adjourned to 16 July 2020; however, it did not appear that the applicant could confidently participate in a video hearing using MS Teams and thus the Tribunal postponed the hearing. The hearing was rescheduled to 23 July 2020 as a video hearing (the applicant attended the AAT premises in Perth and the Tribunal conducted the hearing by video link from the Sydney premises, using an interpreter by telephone). At this second hearing the Tribunal took further evidence, and put concerns to the applicant about her claims.
The Tribunal had also discussed country information with the applicant, who asserted that same sex relationships/activity is illegal in South Korea. The Tribunal put to the applicant that the country information it had accessed did not state that same sex relationships or activities were illegal (except in relation to male homosexual relationships during military service); in response the applicant told the Tribunal to look this up on the internet. The Tribunal explained that it is the applicant’s responsibility to produce documents in support of her case, not the Tribunal’s responsibility. The applicant claimed that she did not know this. The Tribunal found this difficult to accept given, firstly, that she had engaged a registered migration agent and secondly, the Tribunal had on numerous occasions in its correspondence requested that she produce to the Tribunal any documentation upon which she sought to rely (including the first hearing invitation when she was requested to produce any documents upon which she sought to rely to the Tribunal 7 days prior to the (first scheduled) hearing). However, the Tribunal said it would agree to allow her extra time to produce documents she sought to rely upon; noting she had said in particular she would want to produce newspaper reports showing that it is illegal to be gay in South Korea. She agreed that one week would be sufficient to do this. On 31 July 2020 the Tribunal received an article from the agent. No further time was sought.
The Tribunal considered the country information relating to same sex orientation, also relevant to imputed same sex sexual orientation, including the article provided by the applicant. Some relevant aspects are summarised at Annexure B.
The applicant’s evidence at the first hearing included:
·     She was born in China. She had been introduced to a Korean man who had one daughter when living in China. She moved to South Korea in 1997 when she got married to him; she was aged [age] years. When asked when they decided to get married, she said as soon as they met. The Tribunal asked why this occurred so quickly, and she said because she was old, her parents were already [age range] and they pushed her to get married to someone. She said that she thought that he was “the one”. She then said that at the time she didn’t date a lot and she didn’t really like males, but she decided to get married and go to South Korea. When asked what made her decide to marry him, she said he was good-natured, older than her and she thought she would have a peaceful life with him. She wanted to go to Korea because no one knew her in Korea. She thought it was the only option for her because it meant no one knew her. When asked why she wanted this, she said that since she was young, in particular in her late teens, she was not very feminine, she didn’t wear make-up and didn’t wear skirts and all her friends were getting married and she didn’t do that. She wasn’t interested in getting married, although she felt pressure to get married as she was the only child, and at that time in China people start to think something is wrong if you’re older and not married.
·     She said her sexual orientation was that she was attracted to women.
·     When asked why her husband wanted to marry her, she said she was not sure, he was divorced, she was single, she wanted to go to Korea. He said he wanted to have a family again. He told her that he wanted someone to look after the child. The Tribunal asked whether she had told him about her sexual orientation, and she said no.
·     In South Korea she got a job one month after she arrived. She worked at the [Business 1] for 2 years and 9 months from October 1997. She then worked as [an Occupation 1] in [a specified agency] for about 8-10 years until 2009, when she became [an Occupation 2]. When the Tribunal asked how long she was [an Occupation 2], she has worked consistently as [an Occupation 2] since 2009 (in both Korea and Australia); she is still doing it now.
·     She separated from her husband about one year after she arrived in South Korea. It was not a happy marriage. They were divorced in December 1998.
·     She said that she first came to Australia in 2009 and she stayed for about 2 years. While the Tribunal accepts that the time spent in Australia between 2009 and 2011 was about two years, it noted that she had gone back and forth and that she had made various applications and had been unlawfully present during that time. When the Tribunal read out her migration history recorded in the delegate’s decision record, she agreed.
·     When the Tribunal asked why she came to Australia, she said because a friend of hers suggested they should have a holiday because Australia is a lovely country. When asked why she sought a further onshore tourist visa, she said it was because Australia was so nice that she did not want to leave. Then she got an extension on her visa; she was “a bit ignorant” and became illegal.
·     She told the Tribunal that she had been working as [an Occupation 2] and she was caught by immigration compliance in 2011. She stayed in immigration detention for about one month. When she was detained, she was in shock and had an issue with her hearing for about three or four days. She received treatment and was OK, but she decided that she just wanted to go back to Korea. She told them that she just wanted them to send her back.
·     When asked the reason why she returned to Australia in 2015, she said because she liked Australia and she wanted to stay here. She had spoken to a friend (her witness) who said she could come over and she could work with her. She then said no one knew about her and no one knew she was a person who loved the same sex. When the Tribunal asked if she was coming over to work, she said no, because she had a lot of savings (which she earned in Korea because she worked a lot and didn’t spend her money much). The Tribunal noted she had said that she did work in Australia; she said that she didn’t have to work in Australia all the time, but she did work here.
·     The Tribunal noted the applicant’s evidence that when she was back in South Korea, between 2011 and 2015, she said that she was working as [an Occupation 2] at [a Business 2]. The Tribunal asked her whether anything happened when she was in Korea during that period. She said “No, nothing, I just worked and after work I went home and went home, that’s it”.
·     When asked whether anything happened in Korea between 1998 and 2009, she again said “No, nothing”.
·     The applicant said that she is not sexually interested in women and she has never had a lesbian encounter or relationship with women, and that nothing in the past happened in South Korea either before she came to Australia in 2009 or after she returned from Australia in 2011.
·     When asked what would happen if she returned to South Korea, she said that the only thing that would happen to her if she returned to South Korea was that she has relatives, friends, people from her hometown and they will ask if she was single and why she is single. When asked if there was anything else that would happen to her she said no, she will probably get a job and just work. When asked to confirm whether there was anything else, she said no that’s all she can do, just work in a [Business 1] or in a [Business 2].
·     When the Tribunal asked whether there is anything she had not told the Tribunal that she would like to say, she said that in South Korea she was a bit depressive. When she saw a doctor she couldn’t tell him much as he is Korean. She had a colonoscopy in Korea every 3 years and they found polyps, and the doctor said if she left it too long it could be cancer. The doctor asked if she was stressed, and he told her to take it easy. She also said that she could not catch any buses or cars or trains because she gets carsick, but she took a tablet there to help her. When the Tribunal asked whether the applicant had seen a doctor here, she responded no, here, in a car, she has not felt sick, she has felt free here. Further, she doesn’t like the pollution in South Korea.

The applicant was asked about her witness, [Witness A]. The applicant said that [Witness A] is her boss and a friend; she is older than the applicant. She is the owner of the [Business 2] where the applicant works. She is like her elder sister. When the applicant was back in South Korea she contacted [Witness A] and said that she was coming to Australia; [Witness A] told her that when she comes to Australia, they could travel together.
The applicant’s evidence at the second hearing included that:
·     When asked whether there was anything she had done in Australia or anything that has happened to her since she has been in Australia which would cause her problems if she went back to South Korea, she did not respond but instead said words to the effect of: “Because I like same sex and I don’t like opposite sex and if I go back it will be a little bit difficult for this reason”. When the Tribunal repeated its question, she said no, nothing.
·     The Tribunal repeated back to the applicant its understanding of what she had said at the first hearing and asked if this was true: that she is not sexually interested in women and she has never had a lesbian encounter or relationship with women and that nothing in the past happened in South Korea either before she came to Australia in 2009 or after she returned from Australia in 2011. The only thing that would happen to her if she returned to South Korea was that people would ask if she was single and why she is single. Apart from that she would just work. Further, she doesn’t like the pollution and sometimes she gets carsick, and she sometimes has some stress.   The applicant agreed and said she never had sex with women, but she likes women, and so when she sees people from her hometown, she finds it difficult to relate to them. When the Tribunal asked her to explain in more detail, she said that she had a friend that she really liked. She was one year younger than her, but she died. She was the applicant’s only friend and she wanted to be with her, and because she was gone, she was miserable, and she would just go to work and then come home to sleep.
·     When asked about her life in Australia she said that she doesn’t have any friends. She likes her boss/friend in Australia but she doesn’t think her friend likes her. The applicant follows her around. When asked to describe her relationship with her, the applicant said that she really likes her friend, her friend likes men, and she probably thinks of the applicant as an elder sister. The Tribunal said that it appears that it is not a sexual relationship/interest but more like a friendship, and the applicant responded that “I like her as a person”.
·     When the Tribunal asked whether she wanted to stay in Australia because of this person, she said no, it is not because of her that she wants to stay in Australia. She said that she has found living in Australia very comfortable as no one looks down on her or ignores her because she likes the same sex.
·     The Tribunal asked how do people know that she likes people of the same sex in South Korea or in Australia. She said when she was with her friends (in South Korea) they used to have a drink, all her friends were married with children and they said “why don’t you get married” and she had to tell them that she doesn’t really like men and she thinks that rumor spread. So, she stopped contacting her friends. She thinks they thought she was a monster. When the Tribunal asked why, she said that they never actually said that to her, but when she was invited to a friend’s wedding, she felt that people were avoiding her and she felt that they were speaking behind her back.
·     The Tribunal sought clarification that she has never had any sexual interest in men or women. She responded that she never had a relationship, but she likes women. If she had a good friend, she would speak to them all the time. The friend she had before, she talked to her all the time on the phone and she didn’t have any other friends.
·     When asked if there was a reason why she had not had any sexual encounters she said no, because she is not attracted to men. When asked who she is attracted to, she said she likes women, if she is with a woman she feels comfortable but not to have a relationship. The Tribunal sought clarification that she said she doesn’t like to have sexual relationships with women but feels comfortable having friendships with women but nothing more. She said that was correct.
The Tribunal said to her that she had previously referred to having friends in South Korea, and had said that she was invited to weddings, but now she was saying she had no friends. She said that was in the past; in the first 4-5 years after she arrived in South Korea, she had no friends. Later, friends from her hometown in China started to come to South Korea.
The Tribunal put to the applicant that even if it accepted that she was a lesbian who had never had any sexual encounters either in South Korea or in Australia, it would seem that if returned to South Korea, she would also not have any encounters. It would seem that the worse that will happen is that people will ask her why she is single which will upset her, and that she gets carsick and doesn’t like pollution, but these matters do not appear to amount to a real chance of serious harm or a real risk of significant harm. The Tribunal asked if she wanted to comment and she said no, nothing.
The witness gave evidence at the first hearing that:
·     She doesn’t know the applicant that well, and the applicant had not told her much about South Korea, except that it has air pollution and she finds it difficult to live there. The applicant has said it was a bit stressful living there, but she didn’t tell the witness why, and the witness doesn’t know how much. The witness said that the applicant has been working with her for about three years now.
·     When asked what the witness knows about the applicant’s personal life, the witness responded that she didn’t know much about her personal life.
·     Recently the applicant told her that there is an immigration hearing, and that she had applied for a protection visa on the basis that she liked women not men. The witness said that she didn’t know anything about this before the applicant said this. She said that when the applicant came to Australia and said that she liked Australia, the witness had offered to introduce her to a man she could marry so she could stay in Australia. The applicant said no to this offer, and the witness said that this could be the reason why the applicant rejected that offer.
·     When asked whether the applicant had ever had relationships with women, the witness responded that she doesn’t know, she hasn’t seen it.
·     When asked what she thinks would happen to the applicant if she goes back to South Korea, she said that she doesn’t know, she doesn’t know her life now. When asked whether she thought good or bad things would happen to her, she said she does not think it will be good for her because she didn’t like living in South Korea. The Tribunal noted that the only reason she had told the witness that she didn’t like living in South Korea was because of air pollution. The witness responded yes, all she had known was that it was air pollution and it was stressful, but this time she told me something different.
Further evidence is referred to below.
CONSIDERATION OF CLAIMS
Country of reference
The applicant claimed in her application form that she was no longer a Chinese citizen once she became a South Korean citizen. The Tribunal accepts the evidence[6] referred to in the delegate’s decision record to the effect that China does not allow dual citizenship. The Tribunal has had regard to the applicant’s passport which shows that she is a South Korean citizen, the Tribunal accepts that the applicant is no longer a Chinese citizen. The Tribunal accepts that the applicant is a national of South Korea, and that the appropriate country of reference for the assessment of her refugee claims, and the receiving country for the purposes of her complementary protection claims, is South Korea.
[6] Page 5, delegate’s decision record including reference to the Nationality Law of China.
The issue in this case is whether or not the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Concerns as to the applicant’s claims
Relevant law as to whether the Tribunal is satisfied as to the applicant’s claims
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).
As Kirby J observed in Dranichnikov v MIMA:[7]
The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. [The High Court] has rejected that approach to the Tribunal's duties. The function of the Tribunal … is to respond to the case that the applicant advances …[8]
Changing evidence as to her sexuality
[7] [2003] HCA 26 at [78], (2003) 77 ALJR 1088 at 1100.
[8] As cited in Sun v MIBP per Flick and Rangiah JJ at [69].
The applicant gave changing evidence about matters relating to her sexuality. While the Tribunal accepts that it can be difficult to discuss or accurately describe for another one’s sexual orientation or preferences, the applicant did say different things to the Tribunal. At two different hearings she confirmed that she was not sexually interested in women. This indicates that she does not have a sexual orientation towards women. She later claimed that she liked the same sex. However, when the Tribunal sought to explore what that meant, she said she had never had any encounters with women either in South Korea or in Australia (and she made no suggestion she had any encounters in China), she did not indicate that she wanted to, or thought that she would have any sexual encounters if she returned. She indicated an interest in her boss but when the Tribunal explored this, she said that she likes her boss “as a person”. Her evidence did not indicate that, if she had a sexual orientation towards women, that she had ever attempted to act on this. The Tribunal notes that the applicant married a man and that she said that he was “the one”. The Tribunal is prepared to give her the benefit of the doubt and accept that she was not indicating that she had a sexual orientation towards men. Her evidence indicates that she is making the following claims: that she didn’t have a sexual interest in men, she likes some women as friends, and that generally she is lonely, with not many friends. However, she also maintained at times, a same-sex sexual orientation.
The Tribunal has carefully considered whether it is satisfied that the applicant has a sexual orientation towards women and/or that she suffered discrimination and/or harm in China or South Korea, for the reasons claimed. It is not, however, prepared to accept these claims nor that she genuinely fears, or faces, a real chance of serious harm or a real risk of significant harm in South Korea for any reason. This is because the Tribunal considers that the concerns and inconsistencies discussed below undermine the credibility of those claims.
Concerns and inconsistencies
Firstly, the Tribunal was concerned that the applicant:
·     Had the opportunity to claim protection from her first arrival in Australia in February 2009, but she did not do so until October 2015, some 6.5 years later.
·     Made two onshore applications to the Department to remain as a tourist, which indicates that she was able to liaise with the Department and that she had the ability to make enquiries as to the types of applications that could be made, yet she still did not lodge a protection visa application.
·     Chose to remain unlawfully present in Australia for well over one year, instead of claiming protection or seeking advice on her situation.
·     During that period, she had made trips voluntarily back to South Korea. This includes in 2011: the applicant told the Tribunal that she was detained in 2011 having been found working unlawfully in Australia. She told the Tribunal that she had stayed in detention for about one month and she would talk to fellow detainees. She told the Tribunal that she chose to return to South Korea, she decided that she just wanted to go back home.
The Tribunal put these concerns to the applicant, noting that if she had been held in detention for one month in Australia and had been speaking with other detainees (as she told the Tribunal), it would think that this was another opportunity for her to be aware that she could have claimed protection. Her reasons for her delay in claiming protection included that: she had heard that people from South Korea couldn’t apply for a protection visa; when her visa expired and she overstayed she was concerned about going back and if she knew, she would have claimed protection. She didn’t know anything about protection visas, and it was her understanding that as South Korea is a wealthy country one can’t apply for protection visas. The Tribunal put to her that she had been able to find accommodation, find and maintain work, and survive when unlawfully present in a foreign country (and travel back and forth between South Korea and Australia), she seems to be a resourceful woman and it would think that if she genuinely considered that she needed protection, she would have sought advice on this.
The Tribunal considers that the above actions when considered as a whole indicate that the applicant was not fearful or worried about returning to South Korea, but that she preferred to stay and work in Australia, and she was prepared to disregard Australia’s immigration laws to do so. The Tribunal considers that this undermines her claims that she faced a difficult time in South Korea as a result of her sexuality or imputed sexuality or the way she presented herself.
Secondly, the applicant’s initial evidence to the Tribunal about why she wanted to come to Australia made no reference to wanting to escape harm or a difficult situation in South Korea. As noted above, she told the Tribunal that the reason why she came to Australia in 2009 and 2010 was because she wanted to come for a holiday/work, and when she returned in 2015, the reason was because she liked Australia, and her friend could get her work here.
The Tribunal asked the applicant (twice) if she wanted to comment about why, when it had asked her why she came to Australia, her first response was always that it was because she wanted a holiday, or it was a nice place; it was not to say that it was to escape harm or seek protection. The applicant did not really engage with this other than to say that the only way to come to Australia was on a tourist visa and once she came to Australia she had to survive and make a living. The Tribunal had not however asked her at the time for the type of visas she was able to get (and she did not claim to have obtained a work visa to come to Australia); it was instead asking her the reasons why she came to Australia.
The Tribunal considers that if she was having such difficulties as a result of her sexuality or imputed sexuality or the way she presented herself, she would have told the Tribunal clearly that her intentions in coming to Australia was to escape a difficult situation in South Korea. While the Tribunal accepts that after having given these responses, when talking about why she came in 2015, she gave a reason which supported her claims (that in 2015 she had also come to Australia because no one knew that she loved the same sex). This does not, however, overcome the Tribunal’s concerns that the reasons she gave initially for coming to Australia, made not mention of escaping adverse attention in South Korea as a result of her sexuality or imputed sexuality or the way she presented herself.
Thirdly, the Tribunal considered that the applicant’s delay in returning to Australia after she left voluntarily in 2011 (having been detained) undermined that she faced difficulties in South Korea as a result of her sexuality or imputed sexuality or the way she presented herself. In this regard, she left Australia in June 2011, but did not return until July 2015, some 4 years later. The applicant said that she “thought” she was banned from returning for 3 years. The Tribunal said that even if she was banned for 3 years, she had waited a further 12 months after the 3-year period to leave South Korea. In response the applicant said that she spoke to a travel agency at the time who told her she was “probably” banned for 5 years. The Tribunal put its concerns with her changing evidence. If the applicant had experienced difficulties in South Korea, and if she believed that she was able to be free in Australia, then the Tribunal considers that at the very least during those 3 years she would have made serious enquiries to ascertain exactly when she was allowed to return to Australia. Her evidence instead was vague and changing; she then suggested that the motivating factor in her deciding to return to Australia was that she was coming back to Australia to work. In this regard, after mentioning that she was possibly banned for 3 or even 5 years, she said to the Tribunal that in 2015 there was a new virus outbreak in South Korea and the [Business 2s] were shut down and she had no work for 4 months. For this reason, she wanted to find out if she could travel. She went to the Australian Consulate to find out if she could travel and she said she was told that she could buy air tickets and “see for yourself”.
The Tribunal was not prepared to accept her explanations for why she did not return to Australia earlier, and instead it considers that her evidence supports that her reason for returning to Australia was because she had not been able to work for a 4-month period in South Korea and her source of income had been shut down. It also notes her evidence that upon her arrival in Australia she commenced working again in a [Business 2] for her current boss. This evidence undermines other evidence she gave that she was not coming Australia to work, because she had savings. The Tribunal considers that her failure to make serious enquiries as to when she could return to Australia, and her vague evidence indicating that she did not make any serious enquiries until her source of income was shut down in South Korea, undermines her claims that she faced a difficult time in South Korea as a result of her sexuality or imputed sexuality or the way she presented herself.

Fourthly, the applicant was clear in her evidence to the Tribunal in the first hearing that “nothing” happened to her in South Korea between 1998 and 2009, and 2011 and 2015. The Tribunal put to the applicant at the second hearing that when she said that nothing had happened in South Korea during the years that she lived there, this indicated that the claims made in her statement and the claims made at the second hearing (as referred to in the next point) were not true. In response she said that she has nothing more to say to that.
She then, however, continued. She said that last time the Tribunal didn’t specifically ask about bad things in South Korea, the Tribunal had just asked about what it was like for her in South Korea, so she could not answer that, and she didn’t want to answer a question which had not been asked. The Tribunal put to the applicant that she was attending a hearing about why she needs to be granted protection in Australia, and it did not understand why she would say nothing had happened to her when she was living in South Korea if, indeed, something had happened. In response the applicant said that she really didn’t think of what to say. The Tribunal considers that if the applicant had experienced difficulties as a result of her sexuality or imputed sexuality or the way she presented herself, she would not have told the Tribunal that nothing happened in South Korea.
The Tribunal considers that these initial responses to the Tribunal undermines that she had experienced any harm including discrimination in South Korea.
Finally, the applicant provided evidence of specific harm in South Korea which was inconsistent with other claims. In this regard, she told the Tribunal that when she was living in South Korea, people from her hometown in China started to visit. In 2012 she attended a wedding of relative’s son and she could feel people were looking at her. One man said to her “I heard you like women not men is that true?”; she said that she could not answer. When asked if anything else happened, she said that as soon as the wedding was over, she came home and didn’t go to the reception. This was a very bad experience and she felt like crying and killing herself, so she took sleeping pills.
The Tribunal put to the applicant that if encountering people from her hometown and being asked such questions was so difficult for her, it does not understand why she returned to China in the following years, to visit family and to attend a wedding. She claimed to the Tribunal that once she went to China because she thinks she has to see her mother’s cousin’s daughter “or something like that”, and the second time she went to China to look after her relative who had a bad lower back; the other relative who should have gone to China to care for the relative was pregnant, so the applicant said she would go. The Tribunal was concerned that her evidence about why she returned to China was vague, and that this was inconsistent with her claims. The Tribunal would think that if she was fearful of encountering people who knew her and who would ask questions about her, then if she travelled to another country to see such people, she would have remembered why she had put herself at risk of a repeat experience which she said resulted in her wanting to kill herself.
Further, the Tribunal put to her that her reason given to the Tribunal (which was that she didn’t attend a wedding) was contradicted by her application form, where she had specified that she travelled to China in January 2014 for the wedding of relatives (and in March-April 2013 she went for a “family visit”). She did not explain why she had stated in her application form that she had attended a wedding. She also changed the reason for the visit, and said it was for her cousin’s uncle’s 70^th birthday so they all went to celebrate his birthday. She only stayed 4 days because she had a job to come back to. The applicant’s evidence was that she only remained in China for a short time, having gone to visit family, because of work commitments in South Korea; she did not say that she spent the minimum time there because she feared comments or questions.
The Tribunal put to the applicant that her returns to China in 2013 and 2014 undermined her claims that family/ people from her home town have discrimination/denigrated or humiliated her about her sexuality/sexual orientation/the way she presents herself to the extent that she wants to cause herself serious harm. In response, the applicant said the 70^th birthday is a big thing and it is a duty to go. Further, when her aunt was ill, she had to look after her. The applicant’s application form was very specific about the dates and reasons why she returned to China from South Korea, which included to attend a wedding in January 2014. The Tribunal was concerned with her changing and vague evidence as to why she returned, it considers that her return visits (after what she claimed she experienced in 2012) undermine her claims that she was fearful of people in her hometown because of what they thought of her/imputed to her and how that made her feel.
The Tribunal’s concerns in this regard are heightened because, as it put to the applicant (and referred to above in the fourth point), at the first hearing she had been asked if something happened in South Korea and she had said nothing; she was now saying that she had attended a wedding, comments were made by one person, and she had felt so bad that she wanted to kill herself. She responded by saying that she took sleeping pills with intention to kill herself and she hasn’t told anyone, and she didn’t mention this earlier when she was asked, because she couldn’t prove it. The Tribunal acknowledges that there are feelings/incidences that people may find difficult to discuss. However, the applicant’s protection visa proceedings have been ongoing since 2015, and the applicant was aware that she was attending a hearing because the Tribunal was not, on the papers, satisfied that it could grant her a protection visa. In such circumstances, the Tribunal considers that the change in her evidence from nothing having happened, to her saying that comments were made which led her to want to kill herself, is difficult to accept.
Summary of the concerns
Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility about her claims to be an actual/imputed lesbian or to have an actual/imputed sexual orientation towards women, lead the Tribunal to conclude that the applicant is not a witness of truth concerning these claims and when claiming to: hold fears, have experienced past harm and future feared harm upon which she has based her protection claims.
Other matters
The Tribunal had a concern that the applicant’s evidence about the legality of homosexuality in South Korea undermined her claim that her sexual orientation is toward women. In this regard, the applicant claimed that if she had had a sexual relationship with a woman in South Korea, then she would have broken the law. The Tribunal put to her that according to the country information it had accessed, it was not against the law to have a lesbian/homosexual relationship. She responded that if one is in a same sex relationship that is in breach of the law you can be imprisoned for 5-6 months. The Tribunal asked the applicant for her source of this information; she said it is in South Korean newspaper reports. The Tribunal put to her that the country information indicated that it is only a criminal offence for sex between men in the military, but as noted above, it allowed her further time to provide information in support to the Tribunal. In the article she provided post hearing, there was no reference to homosexuality/lesbianism being illegal (except, as already referred to by the Tribunal, the specific illegality for men in the military, and there is no suggestion that this would apply to the applicant as she is not a man and she did not suggest she was entering the military). The applicant has not otherwise explained why she believed that it was illegal for her to have a same sex relationship when living in Seoul from 1997 until 2015 (except for periods in Australia). The Tribunal accepts that it could be argued that if she had seen information about homosexuality being forbidden between men in the military, she may have assumed this related to all persons. Although the Tribunal has doubts in this regard and considers that if she really wanted sexual relations with females, she could have made enquiries about the legality of this, the Tribunal will not draw an adverse inference from this part of her evidence. The Tribunal is not, however, prepared in all the circumstances to accept this evidence as supporting her claims.
Concerning the witness’s evidence, the Tribunal put to the applicant at hearing that it is up to the Tribunal to consider the weight to be given to the witness’s evidence, and just because the applicant tells a witness something, or the witness thinks something, this does not mean it is true. The witness thought the applicant was happier living in Australia/ didn’t like living in South Korea; while this is consistent with the applicant’s evidence, there could be many reasons for this.
While the Tribunal does not draw any adverse inference from the witness not telling the applicant earlier that she was attracted to women: there could be many reasons for this, including that she didn’t know her well (the consistent evidence from both); however the Tribunal notes that just because the applicant recently told the witness that she was attracted to women does not mean that this is true.
The witness thought that the applicant’s recent revelation that she likes women could explain the applicant’s failure to take up the witness’ offer to organise a husband as a method of staying in Australia; there could, however, be many reasons for not wanting to enter into an arranged marriage (including for example that the applicant had already previously had a marriage that she described as not happy).
The witness’s evidence is based on what the applicant has told her, it is not independent evidence of the applicant’s sexual orientation. If the Tribunal did not have the credibility concerns referred to above (including the applicant herself telling the Tribunal at times that she does not have a sexual interest in women), it may have decided to place some weight on the witness’s evidence; however the witness’s evidence does not overcome the Tribunal’s concerns. The Tribunal is not prepared to place any weight on the witness’s evidence.
Findings on the applicant’s claims
The Tribunal put its concerns to the applicant at hearing that although it had not made up its mind, it was not sure that it would accept her actual or imputed same-sex sexual orientation, nor that she had faced problems in South Korea or China as claimed, nor that she faces a real chance of serious harm or a real risk of significant harm if she returns to South Korea. Having considered all of the evidence, the Tribunal is not prepared to accept that the applicant’s claims in this regard are true.
The Tribunal does not accept that the applicant has a sexual orientation or interest towards woman nor that she has been so perceived in China or South Korea. It is prepared to accept her evidence that she likes women (as friends), that she does not usually have many friends, and that she likes her female boss (as a friend) and that she likes spending time with her boss but her boss doesn’t really like spending time with the applicant (as a friend or in any other role other than as employee).
The Tribunal does not accept that, for the reasons claimed, the applicant felt different or misunderstood or attracted adverse attention when growing up in China, nor when she was an adult in China and in South Korea. It does not accept that she felt pressured into dating men or getting married. It does not accept the claims flowing from this including that she felt peaceful and happy in Australia about her sexual orientation. It does not accept that she has been honest about her sexuality/ sexual orientation.
While it accepts that she married a South Korean which enabled her to leave China and live in South Korea, it does not accept that this is because of how she felt about, or any imputation about, her sexuality/sexual orientation, and it does not accept that she drew adverse attention or experienced pressure to marry in China or in South Korea. It does not accept that she has experienced harm or humiliation or denigrating behaviour or discrimination as a result of being in an unmarried and/or divorced state for years.
The Tribunal does not accept any of the claims flowing from her claims to be a lesbian or to be imputed as liking the same sex and not liking men.
The Tribunal is not prepared to accept that the applicant has faced adverse attention or harm in China or South Korea as claimed. The Tribunal does not accept that she faces a real chance or a real risk of serious harm or significant harm in the form of adverse attention, humiliation, denigration, discrimination or other harm for reasons claimed including actual or imputed sexual orientation or imputed disinterest in men.
The Tribunal is prepared to accept that perhaps the applicant has felt stress in South Korea, that she does not like pollution and has experienced carsickness in South Korea. The Tribunal notes that it has no medical evidence of any mental health or physical condition. The Tribunal does not accept that this means she has faced or does face a real chance of serious harm or a real risk of significant harm in South Korea. The Tribunal accepts that the applicant is [age] year old divorced woman who has worked most of her adult life in South Korea and in Australia and upon her return to South Korea she will, as she told the Tribunal, be able to find work.
The Tribunal is not satisfied that the applicant faces a real chance or real risk of serious or significant harm for any reason.
The Tribunal has considered the applicant’s claims individually and on a cumulative basis, having regard to the findings that it is not satisfied that the applicant’s claims are credible concerning past events 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 she does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by her or on her behalf.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act (see Annexure A, which provides a summary of the relevant terms).
The Tribunal does not accept that the applicant has experienced the claimed adverse interest or attention in South Korea, and it has not accepted her claimed actual or imputed sexual orientation. The Tribunal does not accept that there is any reason for her to face a real risk of adverse attention or harm amounting to significant harm (as discussed in the Annexure A). It considers that she will return to South Korea as she has before, will again find a job (as she said to the Tribunal). On the evidence before it the Tribunal is not satisfied that the applicant faces a real risk of significant harm for any reason including stress or depression or carsickness or imputed female/ anti-male orientation. Having considered her claims and circumstances on a cumulative basis it is not satisfied that she faces a real risk of significant harm for any reason.
CONCLUSION
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).
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member

ANNEXURE A - 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 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).
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 below.
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 below.
Mandatory considerations
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.
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.
…
Annexure B - Country information
·     The 2019 USDOS Country Report on Human Rights Practices for South Korea, noted that the law that established the National Human Rights Commission of Korea (NHRCK) prohibits discrimination based on sexual orientation and authorizes the NHRCK to review cases of such discrimination, but the law does not specify discrimination based on gender identity. Reference was made to two previous annual Busan Queer Culture Festivals which had 15,000 attendees and occurred without incident, whereas on this occasion the organisers cancelled the third one over a dispute about permits. In 2018, a number of protestors had attacked the Seoul Pride Festival parade, so in 2019 there were 3,000 police officers on hand to protect the LGBTI community at the 2019 Seoul Pride Festival. “The presence of embassy staff from around the world meant that the police had to ensure the safety of the event,” according to the BBC.[9]
[9] US Department of State, 2019 Country Reports on Human Rights Practices: Republic of Korea, 11 March 2020, (accessed 8 July 2020).
·     In April 2013, an article published in Oxford University’s Forced Migration state that while Korean society has certainly become more accepting of differing sexual orientations over the last fifteen years, many elements of Korean society remain quite conservative, and open affirmations of homosexuality are rare. Nevertheless, gays and lesbians have equal rights and are protected by antidiscrimination law, and two relatively high-profile asylum cases in recent years have resulted in gay men being granted asylum in Korea:
oThe first case involved an asylum seeker from Pakistan, a married attorney from Lahore with four children. He had been arrested and detained briefly in Pakistan, and had also been subjected to blackmail and intimidation by family members and people around him. His application for refugee status in Korea was rejected by the Ministry of Justice in June 2009 and the claimant then filed an appeal, which was heard by the Seoul Administrative Court.
oIn 2011, another claim of sexual orientation-based persecution was presented to the same court by a Nigerian asylum seeker. Here the claimant stated (and the court accepted as credible) that the Nigerian government had rejected him from a government job because he was gay, and had denied him compensation when his house was demolished in an urban planning project because of his sexual orientation. When he protested at the lack of compensation, a group of people tried to attack him at his house. The Seoul Administrative Court ruled in favour of the appellant, taking into account the fact that Nigerian law criminalises homosexual relationships.[10]
[10] Asylum for persecuted homosexuals in the Republic of Korea, Oxford University, April 2013, Issue 42, CIS26038, pp.30-31 as quoted in Department of Home Affairs, South Korea: CI180626152152268 – Refugees – LGBTI, 5 July 2018, p. 4
Concerning the military however, the Military Criminal Act’s “disgraceful conduct” clause criminalizes consensual sodomy between men in the military with up to two years’ imprisonment if convicted. In 2016 the Constitutional Court ruled the clause constitutional. According to Amnesty International, the criminalization of LGBTI relationships in the military has a significant impact on broader societal attitudes as half of the country’s population goes through compulsory military service. NGOs noted the Military Service Act prohibiting homosexual sex led to abuse of LGBTI (lesbian, gay, bisexual, transgender, and intersex) soldiers. According to the MHRC, as of August at least three new cases were prosecuted under the Military Criminal Act’s “disgraceful conduct” clause[11].
[11] US Department of State, 2019 Country Reports on Human Rights Practices: Republic of Korea, 11 March 2020, (accessed 8 July 2020).
The only article provided to the Tribunal after the hearing by the applicant was an article from the New York Times in 2017[12] which referred to the prosecution of a military captain for homosexuality. It also quoted the UN Human Rights Committee (2015) as stating that there is “continuing widespread violence and hate speech against such individuals in the country”. However, the source document states that there is widespread discrimination against lesbian, gay, bisexual, transgender and intersex persons, including violence and hate speech; it does not say that there is widespread violence or widespread hate speech[13]. The Tribunal notes that in the most recent USDOS under the heading of “Acts of violence, discrimination, and other abuses based on sexual orientation and gender identity” there was no reference to any violent acts or hate speeches, although it stated that LGBTI persons had a fear of hate crimes. This section of the report concentrated on the military.
[12] South Korean Military Sentences Captain for Sex With Other Servicemen
[13]
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Citations

1620934 (Refugee) [2020] AATA 6186

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22

MZWMF v Minister for Immigration and Multicultural Affairs [2006] FCA 780

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20

[2020] AATA 6186

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Natural Justice

Standing

Statutory Construction