1620934 (Refugee)

This matter concerns an application for review of a delegate's decision to refuse a protection visa. The applicant, who claims to be a citizen of the Republic of Korea, arrived in Australia on multiple occasions between 2009 and 2015, at times holding electronic travel authority visas and at other times overstaying her visa conditions, becoming an unlawful non-citizen before departing. The applicant lodged her protection visa application on 12 November 2015, which was accepted as valid by the Department.

The primary legal issue before the court was whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically relating to her sexual orientation, such that she ought to be granted a protection visa. The applicant claimed that she was unable to be her true self in South Korea due to societal pressures and her fear of revealing her sexual orientation, which she believed would lead to negative attention and distress. She asserted that Australia would provide a safe environment where her sexual orientation would not be a cause for concern.

The delegate's decision was based on the applicant's migration history and her claims. The delegate noted that the applicant was born in China as a Chinese citizen but later acquired South Korean citizenship. The delegate also observed that neither Chinese nor South Korean nationality laws ordinarily permit dual citizenship, though exceptions exist. The applicant did not attend a scheduled interview with the Department, and the delegate refused the visa application. The court was required to consider the applicant's claims in light of the relevant provisions of the Migration Act 1958 and the Refugee Convention.