1704758 (Refugee)

[2020] AATA 2915

1704758 (Refugee) [2020] AATA 2915 (19 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704758

COUNTRY OF REFERENCE:                   Korea, Republic Of

MEMBER:Michael Hawkins

DATE:19 June 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 19 June 2020 at 4:12pm

CATCHWORDS

REFUGEE – Protection visa – Korea – failed to undergo compulsory military service – homosexual preference – conscientious objector – feared being LGBTI in the military – in a genuine partner relationship with a female –delay in lodging protection application –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 91,499

Migration Regulations 1994, Schedule 2

CASES

Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225
Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387
Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1
Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1
Minister for Immigration and Multicultural Affairs vs Respondents S152/2003 (2004) 205 ALR 487
Nagalingam v MILGEA (1992) 38 FCR 191
NBFP v MIMIA [2005] FCAFC 95
Prasad v MIEA (1985) 6 FCR 155
SCAT v MIMIA [2002] FCA 926
VTAO v MIMIA [2005] FCAFC 95

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 3 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of the Republic Of Korea, applied for the visa on 5 July 2016. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s.5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background:

10. The Tribunal has obtained the following background information from the applicant’s visa application forms and evidence presented to the delegate and the decision of the delegate:

11. The applicant is [an] [age]-year-old male, born in the Republic of South Korea.

12. The applicant left South Korea to study and travel in Australia.

13. He first arrived in Australia [in] February 2008 as the holder of a [(Student)] Visa. He departed Australia [in] August 2008.

14. The applicant arrived back in Australia [in] October 2008 as the holder of a Sub-Class 417 (Working Holiday) Visa. He departed Australia [in] October 2009.

15. The applicant arrived in Australia again as the holder of a Sub-Class 976 (Electronic Travel Authority) Visa [in] October 2009.

16. He applied for a [further] (Visitor) Visa on-shore which was granted on 5 February 2010.

17. He applied for a further [(Visitor)] Visa on-shore which was granted on 23 April 2010. He departed Australia [in] October 2010.

18. The applicant arrived in Australia again [in] October 2010 as the holder of a Sub-Class 977 (Electronic Travel Authority) Visa.

19. On 13 January 2011, the applicant’s Sub-Class 977 (Electronic Travel Authority) Visa ceased and the applicant remained in Australia unlawfully. The applicant departed Australia [in] February 2011.

20. The applicant arrived in Australia again [in] March 2011 as the holder of a Sub-Class 976 (Electronic Travel Authority) Visa. He applied for a [(Student)] Visa on-shore which was granted on 22 June 2011. He departed Australia [in] January 2013.

21. The applicant arrived in Australia again [in] February 2013 as the holder of [a]  (Student) Visa which was to cease on 30 August 2013.

22. On 30 August 2013, the applicant applied for a Sub-Class 820/801 (Combined Partner) Visa. The Partner Visa was refused by the Department on 11 March 2015.

23. The applicant sought review of that Decision with the Migration Review Tribunal. However, the department’s decision was affirmed on 9 June 2016.

24. The applicant applied for a Protection Visa on 5 July 2016.

25. The applicant was not interviewed by the Department and he claims he did not receive an invitation to attend an interview.

    Claims:          

    Summarised from the Protection Visa Application and as summarised in the Delegate’s Decision.

26. The applicant claims that from 2008 to 2013, the applicant had travelled and studied in Australia.

27. The applicant claims that in 2013, he had to return to South Korea as he still had the compulsory military service obligations to complete. The applicant claims he requested a further year’s extension.

28. The applicant claims he applied for a Permanent Partner Visa in Australia in August 2013.

29. The applicant claims that in January 2014, he was informed that he was required to return to South Korea to undergo his military service. He claims that he requested a further extension to stay overseas again, explaining his circumstances that he was waiting for the decision on his Permanent Visa and that he was on a Bridging Visa. He claims that he was unable to travel overseas and that his passport had also expired. He claims his request was declined. He claims that he was informed of the disadvantages for not following the procedures.

30. The applicant claims the penalty for failing to return to South Korea and undergo compulsory military service are imprisonment for a maximum of three years; compulsory military service obligations until the age of 37; severe financial difficulties as his work rights will be cancelled until the age of 40; severe disadvantages on his basic human rights as his personal information will be published on the internet which he believes is unfair and a limitation on travel.

31. The applicant claims that without working rights until the age of 40, he would not be able to support himself financially. He claims that he does not own or inherit financial luxury from previous generations. He claims that he will have to work. He claims that at the end of his prison term, he will be [age] years of age and literally unemployed for eight years. He claims that when he gets his work rights back, he will be out of the job market for not having worked for 10 years.

    As summarised from the Representative’s Submission submitted on 19 March 2020

32. The applicant claims his fear of harm arises from:

    ·His “social” persuasion being of homosexual preference;

    ·His religious persuasion;

    ·The likelihood of being subjected to ill and degrading treatment; and

    ·His being physically incapable of withstanding the infliction of bashings/battering likely to occur.

    Evidence:

33. The Tribunal has before it a range of material, including, relevantly:

    • The applicant’s protection visa application forms completed and signed on 5 July 2016 (visa application);
    • The protection visa decision record (delegate’s decision record) dated 3 March 2017;
    • The applicant’s identity document being photocopy of passport;
    • Pre-hearing submission from the Representative of 19 March 2020;
    • Post-hearing submission of 28 March 2020 including:
    • An undated statement of the Applicant;
    • Civil Petition Results, Military Manpower Administration, dated 13 March 2020;
    • Country information article, “Coronavirus: South Korea sect leader to face probe over deaths”[1];
    • Country information article. “COVID-19 confirmed, recovered, and test cases South Korea 2020”[2]; and
    • DFAT Smart Traveller advice for South Korea dated 18 March 2020.
    • Country Information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing.

    [1] BBC news, 2 March 2020, available at Statista, 19 March 2020, Submission

    The Tribunal received a pre-hearing submission from the representative received on 19 March 2020. The contents of this submission are set out as follows:

    Preliminary

    This is an application for review of a decision made by a delegate of the Minister for Home Affairs [Department of Immigration (the Department)] to refuse to grant the applicant a Protection (Class XA) 866 under s. 65 of the Migration Act 1958 (the Act). In terms of section 5(1) of the Act, it is accepted by the Department delegate that the applicant is a South Korean national. What is not accepted is that the applicant has real concerns and genuine fears for his safety if he is required to return to that Country. The applicant has come to Australia on several occasions since first arriving in February 2008. On the most recent entry to Australia in August 2013, a Partner visa was refused (March 2015), the applicant eventually making the Protection visa application in July 2016. In the intervening period, the applicant had been granted a student visa (June 2011) to study and travel in Australia. As a citizen of South Korea, the applicant had compulsory military obligations to fulfil and returned to South Korea in 2013 to seek an extension from having to join the military service, preferring to continue studies in Australia. Faced with the prospect of being imprisoned for failing to meet military service requirements, the applicant returned to Australia in February 2013 (having left Australia for less than 2 weeks). For various unrelated reasons, the applicant’s application for a Partner visa (August 2013) was refused in March 2015, and a subsequent request for review affirmed the decision not to grant the visa in June 2016. The application for a protection visa was then made in July 2016, with the decision to refuse to grant this visa being made on 3 March 2017. In summary, the delegate was of the view that the circumstances described by the applicant were insufficient to support a claim that the provisions of s.36(3) applied to his case. In other words, the delegate’s decision suggests that the delegate, in this case, concluded that:

    a) there are insufficient grounds for believing that the applicant, as a necessary and foreseeable consequence of removal, would face a ‘real risk of harm’ (that there is no ‘real chance’ of his suffering harm/ degradation and/or persecution due to his being of a particular social group or the like);

    b) there are no substantial grounds for concluding that the applicant would likely suffer ‘significant harm’ (severe pain/ torture) in the circumstances presented at the time of the application.

    It was accepted that the applicant had complied with the validity requirements of the Act 1 and the Migration Regulations 2. Visa application charges were appropriately paid. The visa class has been specified. The application was made on the relevant approved form/s and in accordance with the criteria prescribed by the Regulations as required for a Protection Visa (Subclass 866)

    SUBMISSION

    It is submitted on behalf of the applicant, that there are, in fact, circumstances, in this case, that:

    a) establish that the applicant has a well-founded fear of suffering serious harm if made to return to South Korea;

    b) there is sufficient evidence to justify categorising the applicant as a person who:

    (i) falls within the definition of a refugee - under the definition of “refugee” in Article 1A of the United Nations Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees.

    (ii) qualifies as a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

    Several factors require consideration in determining whether the applicant may qualify for protection as a ‘refugee’ [1003004 [2010] RRTA 534 (1 July 2010) & 0909869 [2010] RRTA 477 (12 June 2010)].  In general terms, Australia is a party to the Refugees Convention and the Refugees Protocol and does take protection obligations to people who are refugees as defined in them, seriously. These obligations arise by reference to Article 1A(2) of the Convention which defines a refugee as any person who: “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”[Under the definition of “refugee” in Article 1A of the United Nations Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees].

    Over the past several years, this definition has been considered by the High Court in a number of cases, notably Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225, Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559, Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293, Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1, Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1, Minister for Immigration and Multicultural Affairs vs Respondents S152/2003 (2004) 205 ALR 487 and Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387.    Some aspects of Article 1A(2) are now qualified by sections 91R and 91S of the Act for the purposes of the application of the Act and the regulations to a particular person. There are four key elements to the Convention definition, namely:

    First, an applicant must be outside his or her country.

    Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve “serious harm” to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). The expression “serious harm” includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. However the motivation need not be one of enmity, malignity or other antipathy towards the victim on the part of the persecutor.

    Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase “for reasons of” serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

    Fourth, an applicant’s fear of persecution for a Convention reason must be a “well-founded” fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well- founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country (or countries) of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    COUNTRY

    [International Federation for Human Rights (FIDH), A State Terror Policy ( Korea is one of the very few countries that does not offer a genuine civilian alternative to compulsory military service. Reports by Amnesty International indicate that each year there are hundreds imprisoned for refusing / avoiding compulsory military service on religious or pacifist grounds. “Without a ‘legitimate’ reason to refuse to bear arms conscientious objectors in South Korea are jailed for exercising their right to freedom of thought, conscience, religion or belief” [Amnesty International ‘Torment goes on…’ 29 September 2017]

    Recent changes to the law in South Korea has provided little by way of encouraging signs that conscientious objectors to military service will not be harshly punished. ‘They will continue to be punished and stigmatized for refusing military service under the new alternative service law adopted by the South Korean parliament on the 27th December 2019; this law requiring them to work in correctional facilities - jail - for three (3) years ’ [Amnesty International (Arnold Fang Researcher) 27 December 2019 UTC the applicant’s case, there are several situations giving rise to his fear of harm and persecution, including the possibility that his life may be at risk. It is submitted that the basis for the applicant’s fears arise from:

    1) his ‘social’ persuasion being of homosexual preference;

    2) his religious persuasion;

    3) the likelihood of being subjected too ill and degrading treatment;

    4) his being physically incapable of withstanding the infliction of bashings / battering likely to occur;

    Persecution

    Persecution under the Convention requires that the applicant have a fear of serious harm, involving systematic and discriminatory conduct for reason of race, religion, nationality, political opinion or membership of a particular social group7.

    ‘Persecution’ is not defined in the Convention and whether conduct constitutes ‘persecution’ will depend on the circumstances of each case. There has, however, been some legislative and judicial interpretation of the term, which defines its characteristics and boundaries. There must however, be some discriminatory or selective conduct perpetrated against the applicant which is sufficiently serious. For example, there is general acceptance that a threat to life or freedom, for a Convention reason, amounts to persecution: Chan Yee Kin v MIEA (1989) 169 CLR 379.

    The applicant is in fear of serious harm

    Section 91R(2) of the Migration Act sets out a non-exhaustive list of the types and levels of harm that will meet the serious harm test.

    Note this list does not purport to limit the notion of serious harm, which includes:

    (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 persons capacity to subsist;

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

    The revised Explanatory Memorandum to this section of the Migration Act emphasises that the list is not exhaustive, and a number of cases have also established that to treat the list as exhaustive would be a serious error of law. In VTAO v MIMIA [2005] FCAFC 95, Merkel J found that the RRT had erred in addressing the question of whether the harm feared by the applicant fell within the list set out in s91R(2) rather than whether the harm constituted ‘serious harm’. His Honour found that the Tribunal had erroneously applied s91R(2) as the appropriate legislative test rather than s91R(1). The case of NBFP v MIMIA [2005] FCAFC 95 also confirmed that subsection 91R(2) ‘was not intended…to narrow the scope of “harm”, whether “serious” or not, as that concept had been developed by the High Court’ [at 57]. Furthermore, the serious harm test does not exclude serious psychological harm, particularly harm involving mental illness: SCAT v MIMIA [2002] FCA 926. [Procedures Advice Manual 3 REFUGEE LAW GUIDELINES PERSECUTION FOUNDED FEAR

    [ProceduresAdvice Manual 3 [REFUGEE LAW GUIDLINES] WELL FOUNDED FEAR, has been long accepted by the United Nations that: "In general, the applicant's fear should be considered well-founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable if he returned there." [UN Handbook: Procedures and Criteria for Determining Refugee Status, Para 42, P 12 (Office of the United Nations High Commissioner for Refugees, Reedited Geneva, January 1992)].

    In Minister for Immigration & Ethnic Affairs v Guo Wei Rong & Anor (High Court of Australia, Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow & Kirby JJ, 13 June 1997), the majority discussed the meaning of the expression "well-founded fear" in the following terms:

    "Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is "well-founded" when there is a real substantial basis for it. As Chan [Chan Yee Kin v Minister for Immigration & Ethnic Affairs (19891 87 ALR 4'2) shows. a substantial basis for a fear may exist though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well founded if it is merely assumed or if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term "real chance" not as epexegetic of "well-founded. but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate."

    Accordingly, the Court was satisfied that there is a real substantial basis for finding the applicant would be persecuted for a Convention reason in South Korea should she return in the reasonably foreseeable future. Similarly, we are satisfied that the applicant’s fear is well-founded for the purposes of the Convention. In the circumstances of this case, it is submitted that the high degree of probability that this applicant will be subjected to all forms of abuse, may be taken into consideration in the assessment of his application, in light of the above.

    A ‘real chance’ that persecution will occur

    It is also worth noting that the ‘real chance’ test, established by the High Court in Chan v MIEA (1989) 169 CLR 379, suggests that:

    ‘ a real chance discounts what is remote or insubstantial; it is one that is not remote, regardless of whether it is less or more than 50%; an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be persecuted. However, a far-fetched possibility of persecution must be excluded’. By reference to this High Court decision, a ‘real chance’ is therefore a possibility which is not remote or farfetched, and can certainly be below a 50% chance. Based on the country information available today, there is much evidence to support that there is a real chance of persecution occurring toward the applicant if he were to return to South Korea in his circumstances (previously mentioned). CNN World News, which recently reported on the military service of South Korea, found ‘gay’ personnel were subjected to many forms of ill- treatment for all of the time they were in military service. The applicant in this case remains fearful that his attempts to avoid military service will mean his fate will be far worse, regardless of whether it is with the military service or jail. [CNN World article ‘ Gay and trans soldiers abused and harassed in South Korean military’ article edition.cnn.com/2019/10/asia…]

    Reference to s.36(2)(a) and (aa), it is clearly the criterion for a protection visa that the Minister be satisfied Australia has protection obligations because the person is a refugee by definition pursuant to the Migration Act, or that 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: Complementary Protection.

    FACT FINDING AND VERIFICATION OF INFORMATION

    After the 24th March 2012, complementary protection criteria became a possibility for people who fail to be accepted as Convention type refugees but who also cannot be returned to their home country because of a real risk that they would suffer “significant harm” of certain kinds. Note, however, that a new s.197C now clarifies that Australia’s non- refoulement obligations are irrelevant to the removal of an unlawful non-citizen from Australia. Australia's non-refoulement obligations, in addition to those of the Refugee Convention kind, are derived from international human rights conventions to which Australia had become a party in the 1980s and 1990. The most important of these are:

    ‘the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional’; and, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Non-refoulement obligations may be engaged under these treaties where there are 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 the person will suffer significant harm, be subjected to, as in this case, cruel, inhuman, and degrading treatment / punishment. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes the cautionary note sounded by Foster J at 482: …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true [see MIMA v Rajalingam (1999) 93 FCR 220)].

    ‘COMPLEMENTARY PROTECTION’

    As discussed above, the concept of ‘complementary protection’ was introduced into the Migration Act in 2012, in many ways to assist persons in difficult situations that were not (technically) refugees. In this respect, attention focuses on the various concepts it introduced. In Minister for Immigration v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559; (1997) 144 ALR 567; (1997) 71 ALJR 743 (High Court of Australia, Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow & Kirby JJ), the majority discussed the meaning of the expression "well-founded fear" in the following terms "Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is 'well-founded' when there is a real substantial basis for it. As Chan [Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 87 ALR 42] shows. a substantial basis for a fear may exist though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term "real chance" not as epexegetic of "well-founded. but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well- founded even though the evidence does not show that persecution is more likely than not to eventuate." [ a u/cgi-bin]

    In Minister for Immigration & Ethnic Affairs v Singh (1997) 142 ALR 191, the Full Federal Court held that the "well founded fear" must exist at the time the question of return arises, namely, at the time the decision is made whether the applicant is a refugee. In Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 87 ALR 412 at 416),24 Mason CJ discussed the evidentiary basis for determining refugee status where he said –

    "In making such a determination under the Convention, a logical starting point in the examination of an application for refugee status would generally be the reasons which the applicant gave for leaving his country of nationality. Those reasons will necessarily relate to an earlier time. since when circumstances may have changed. But that does not deny the relevance of the facts as they existed at the time of departure to the determination of the question whether an applicant has a "fear of persecution" and whether that fear is "well founded." At p 419, His Honour continued – "While the question remains one for determination at the time of the application for refugee status, in the absence of facts indicating a material change in the state of affairs in the country of nationality, an applicant should not be compelled to provide justification for his continuing to possess a fear which he has established was well-founded at the time when he left the country of his nationality. This is especially the case when the applicant cannot, any more than a court can, be expected to be acquainted with all the changes in political circumstances which may have occurred since his departure. Those changes are a matter which, if they were to be relied upon, needed to be established and stated by the delegate in reasons." In Appellant S395/2002 & S396/2002 v Minister for Immigration [2003] HCA 71; (2003) 216 CLR 473,25 the Tribunal found that it was not possible for two Bangladeshi homosexuals to live openly but refused their applications on the ground that they had conducted themselves in a discreet manner, would continue to do so upon return and, therefore, would not be subject to persecution. On appeal to the High Court, McHugh, Gummow, Kirby & Hayne JJ were of the view that asylum seekers are not required to take reasonable steps to avoid persecutory harm. The Tribunal must determine how an asylum seeker is likely to live on return to the country of origin and assess the chance of persecution on that basis. It is not relevant to consider whether the asylum seeker could live in the country of origin without attracting adverse consequences. Further, if the Tribunal finds that fear of harm will influence an asylum seeker to live discreetly, it will err if it does not consider whether the fear of harm is well-founded and whether the threat of harm itself constitutes persecution. McHugh & Kirby JJ (at [40]):

    “But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a “particular social group” if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. Similarly, it would often fail to give protection to persons who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality. [See SZATV v MIAC [2007] 237 ALR 634 at [28] where Gummow, Hayne & Crennan JJ approve the last two sentences.] [41] "History has long shown that persons holding religious beliefs or political opinions, being members of particular social groups or having particular racial or national origins are especially vulnerable to persecution from their national authorities. The object of the signatories to the Convention was to protect the holding of such beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country of nationality would not protect them. It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions or to hide their race, nationality or membership of particular social groups before those countries would give them protection under the Convention."

    As Simon Brown LJ stated in Secretary of State for the Home Department v Ahmed (Unreported; UK Court of Appeal; 5 November 1999 at 8):

    “It is one thing to say … that it may well be reasonable to require asylum seekers to refrain from certain political or even religious activities to avoid persecution on return. It is quite another thing to say that, if in fact it appears that the asylum seeker on return would not refrain from such activities – if, in other words, it is established that he would in fact act unreasonably – he is not entitled to refugee status. … [42] "[I]n all asylum cases there is ultimately but a single question to be asked: is there a serious risk that on return the applicant would be persecuted for a Convention reason? If there is, then he is entitled to asylum. It matters not whether the risk arises from his own conduct in this country, however unreasonable.” [43] "The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. … In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly. … [47] "If the harm is inflicted for a Convention reason and is serious enough to constitute persecution, the homosexual person is entitled to protection under the Convention. It is immaterial that the conduct of the applicant for refugee status disclosed his or her identity as a homosexual and attracted the attention of the persecutors. … [50] In so far as decisions in the Tribunal and in the Federal Court contain statements that asylum seekers are required, or can be expected, to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed.”  Gummow & Hayne JJ:

    [80] “If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. …

    PROSPECTIVITY

    The issue in a refugee claim is whether or not the applicant has a well-founded fear in relation to a future event, i.e., whether he or she will be persecuted upon return. In Mok Gek Bouy v Minister for Immigration & Ethnic Affairs & Paterson [1993] FCA 545, Keely J observed – "In my opinion. the question of whether there was a real chance of persecution necessarily required the delegate to look at the future in so far as it was reasonably foreseeable at the time when he was making his decision." [ concept of persecution has been considered by the Courts on many occasions. It is worth noting that this codification of the concept of persecution, which was designed to be restrictive, may, in fact, have the opposite effect in some situations. For example, decision- makers frequently dismiss short to medium term detention of applicants by security forces, etc. as not being serious enough to amount to persecution. Given that a threat to a person’s liberty constitutes serious harm for the purposes of s.91R(1) (see s 91R(2)(a)), it is hard to see how decisions of this kind can now be made. It is submitted that the applicant in this case will not only lose his liberty but is highly likely to be subjected to harsh abusive punishments for having taken the stand he did. In another earlier decision of Chen Shi Hai v Minister for Immigration [2000] HCA 19 (13 April 2000),27 , the High Court also held that motivation in the sense of an intention to inflict harm is not necessarily an element of the concept of persecution.

    Persecution need not necessarily be perpetrated by the Government. In most cases, it is perpetrated by the agents of the Government of the country concerned, e.g., the police, security forces, the military, etc.. However, in some situations, behaviour on the part of non- governmental persons or groups will qualify as Convention persecution if certain criteria exist, known as the agents of persecution principle (Devarajan v Minister for Immigration & Multicultural Affairs [1999] FCA 796).28 The United Nations Handbook On Procedures and Criteria for Determining Refugee Status (Office of the United Nations High Commissioner for Refugees, Reedited Geneva, January 1992) (the UN Handbook) states at p17, para 65. “Persecution is normally related to action by the authorities of a country. It may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned. A case in point may be religious intolerance, amounting to persecution, in a country otherwise secular, but where sizeable fractions of the population do not respect the religious beliefs of their neighbours. Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection."

    The concept of persecution was extensively canvassed by the High Court in Chan. The judges were of  the view that –

    (i) Persecution necessarily involves selective or discriminatory treatment for a Convention reason but not all forms of selective or discriminatory treatment will amount to persecution;

    (ii) Persecution necessarily involves some serious punishment or penalty or some significant detriment or disadvantage; and

    (iii) The denial of fundamental human rights or freedoms will generally but not always amount to persecution.

    At 417, Mason CJ observed – "Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to harassment by reason of membership of the group amounts to persecution if done for a Convention reason."… other adverse factors (e.g. general atmosphere of insecurity in the country of origin), In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to wellfounded fear of persecution on "cumulative grounds". " In the case of Applicant S454/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1136,29 it was suggested that the explanation of persecution given by McHugh J in Applicant A (High Court of Australia, 24.B7997) is generally accepted as illuminating: ‘ …. sanction must be appropriately designed to achieve some legitimate end of government policy. Thus, while detention might be justified as long as the safety of the country was in danger, lesser forms of treatment directed to members of that race during the period of hostilities might nevertheless constitute persecution. Denial of access to food, clothing and medical supplies, for example, would constitute persecution in most cases [Quaere: s 91R of Migration Act]. It need hardly be said that a law or its purported enforcement will be persecutory if its real object is not the protection of the State but the oppression of the members of a race, religion, nationality or particular social group or the holders of particular political opinions.)…’

    Returning to the question of ‘serious harm’ to the person [refer: s 5J(4) and examples are set out in s 5J(5)]. The applicant in this case is, it is submitted, almost certain to suffer what is by Australian standards, considerable ‘harm’, considered from a cumulative perspective.

    LAWS OF GENERAL APPLICATION/MILITARY CONSCRIPTION

    Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 206 ALR 242 31 concerned the ad hoc, random and forcible recruitment of young able-bodied Afghan males to serve in military operations by the Taliban when it was in control of Afghanistan. The High Court considered the issue of enforcement of a law of general application in the context of military conscription. Gleeson CJ, Gummow and Kirby JJ dealt with the issue at [41]–[49], including: "The criteria for the determination of whether a law or policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A. His Honour said that the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is ‘appropriate and adapted to achieving some legitimate object of the country [concerned]’ " [(1997) 190 CLR 225 at 258; 142 ALR 331 at 354]. These criteria were accepted in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen ((2000) 201 CLR 293 at 303 [28]; 170 ALR 553 at 560; 58 ALD 321 at 328).

    It is thus submitted that there is a sufficient basis from which to conclude that the applicant should succeed in this application.

    Post-hearing Submission

1. The Representative sent the Tribunal a post-hearing submission on 28 March 2020 containing an undated statement from the applicant. The contents of the applicant’s statement are set out as follows:

   I believe that enough evidences and claims were not provided at the time of application for my protection visa as a refugee and there are several areas that I would like the AAT to review.

   When I first applied for the protection visa, myself belonging to a particular social group LGBT and conscientious objector was omitted. Due to my introvert and shy personality, it took me a while to say this and is a big step for me to open and publicly speak about it.

   Also the evidence of my passport/ overseas stay permission being denied was missing and therefore I have provided these evidences for AAT review with the recent correspondence from South Korea Consulate (Melbourne) and the Military Manpower Administration in South Korea.

   And as outlined from the response from MMA, due to the jail term that I will be serving, I don't agree with the department's claim that I will have the competitive edge when I enter the labour market in South Korea based on my education in Australia and work experiences in [hospitality]. MMA's response stipulates the restrictions and disadvantage that I will face if I ever return to South Korea. This will remain not only as a criminal record as well as a social stigmatisation and therefore my ability to access employment afterwards will most likely still be compromised.

   Furthermore, the discrimination and persecution that I will face as LGBT in the military which I will serve as per the MMA's response when I return to South Korea were not considered during my first visa application decision and therefore I have attached my further claims and supporting documents.

   As a LGBT conscientious objector, if I ever return to South Korea, I will face jail terms, the military service, or the alternative service which is in the process of discussion and implementation at the present moment, and restrictions on employments, overseas travels.

   Although recently I have heard from the media that South Korea has legalised the alternative military service to conscientious objectors, it is still in the process of being discussed as we speak and there is no precedent case yet. Furthermore, this alternative service is 3 years, double the terms of the normal military, which makes the South Korea the country that offers the longest alternative service in the world. And also I am still convinced that there is still an implementation gap and still conscientious objectors are yet to be provided with genuine alternative service options that are clearly non-punitive.

   Furthermore, as per the response from South Korean Military Manpower Administration, I will have to go to the military service, not sure whether I will be given the alternative service option.

   I have heard many cases about torments, inhuman treatments and persecutions towards LGBT group in the military in South Korea through media as well as through my close ones.

   As an example, [a] close friend of mine that I have known since [childhood] experienced consistent torture and persecution during his military service. After numerous suicidal attempts, he had to receive psychiatric treatments and then had to finish his term as alternative service in the local office. Even during this time, he was asked and revealed the reason why he was discharged from the military and constant humiliation and harassment stopped him from integrating himself into the society.

   Also he confided in me as he wasn't the only case during his time, but he had heard and seen even the extreme case of this persecution and one of his colleagues committed a suicide, and then died.

   Furthermore, due to the increasing difficulty in recruiting military soldiers in South Korea, the military manpower agency is dissimulating these truths and making the military environment a lot nicer than how it is in reality.

   Given my age, I gave a benefit of doubt that it might have changed over time, however another friend of mine, [confided] in me that still it is the prevalent case in South Korea. Especially he confided me that he was suffering from continuous harassments, physical abuse and torture and ended up being dispelled from the army and threatened not to reveal this fact to the public.

   South Korea is not as open as Australia towards LGBT group in the society. Even it is worse in the military as especially they are seen to be a treat to undermine the masculinity of the military.

   My mother in South Korea who is not aware that I belong to LGBT group. I haven't told her because I know how she would react to this. But even without knowing my identity, she has been always concerned of me going to the military because of my feminie nature and she knew that I would be tortured and physically abused. She doesn’t know that my visa application for the protection has been declined, only knows that I have applied for the residency and says still she prays for my residency to be approved. If she ever finds out that I am to return to South Korea and go to the military, she will be grieving out of the fact that I will have to face the jail term, military service where I will be abused and tortured by those who are much younger than myself.

   I know a lot of LGBT hide their identity and 'serve in silence' in the military because they are well aware of what's waiting for them once they are 'outed'. However I am way too obvious. Usually people notice me right away the moment they see me.

   Country of reference/ receiving country:

2. The applicant claims to be a South Korean national. Based on evidence provided to the Department by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that the Republic Of Korea is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

3. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3) of the Act.

   Hearing:

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal recorded that the applicant was represented and that no objection to a hearing by telephone was made. The Tribunal made frequent inquiries of all parties during the hearing that they could hear each other and were being heard.

5. The applicant attended before the Tribunal on 27 March 2020 to give evidence and present arguments. The applicant was accompanied by his Representative.

6. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.

7. The Tribunal explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in South Korea. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to South Korea. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

8. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to South Korea.

9. The Tribunal discussed his claims as summarised in the Delegate’s Decision. It noted that there appeared to have been some new claims added since the delegate’s decision, as noted in the representative’s submission. The Tribunal read out the claims of the applicant. The applicant confirmed they were now accurate and complete. He added that he was a conscientious objector to military service. And that he feared being LGBTI in the military. The Tribunal confirmed that his fears related only to his obligation to complete military service and what might happen to him if he did not.

10. The Tribunal discussed with the applicant the findings of the Delegate. The Delegate, having considered Country Information, and in the absence of any claims from the applicant that he is a conscientious objector of mandatory military service in South Korea, or he objects or refuses to perform his military service as mandated due to his moral, religious or political conviction, or for any other reason, the Delegate did not find that any punishment the applicant faced under the South Korean laws of general application would amount to persecution of the applicant. The Tribunal noted that decision was made without having interviewed the applicant.

    Assessment of Claims and evidence, and findings:

11. 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 an 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. 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 (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

12. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

13. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

14. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

15. The Tribunal has strong reservations about the genuineness of the applicant’s claims.

16. The Tribunal has had regard to the comments of Heerey J in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:

    The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”

17. A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.

18. The Tribunal discussed these concerns with the applicant at length.

19. The Tribunal discussed with the applicant that his request for an extension in which to commence his military service was rejected in January of 2014, yet he did not apply for a Protection Visa until 5 July 2016, some 2½ years later. But more to the point and of greater concern to the Tribunal is the fact that the applicant only applied for a Protection Visa when his review at the Refugee Review Tribunal of a decision to reject his Partner Visa Application was affirmed. The Tribunal noted that the decision of the Migration Review Tribunal affirming the Delegate’s decision was on 9 June 2016. The Tribunal explained that applying for a Protection Visa Application only after the rejection of his Partner Visa Application might be construed as his protection claims not being genuine or that a Protection Visa was his only other option to remaining in Australia. The applicant replied that that was definitely not true. The Representative submitted that the delay in seeking the Protection Visa Application might be that the applicant only became aware of his status then.

20. The Tribunal expressed its concern about its perception of the timeliness of taking out a Protection Visa Application, noting also that he made his application for a Partner Visa on the date of expiry of his Student visa in 2013, and stated it would consider that further.

21. The Tribunal noted that States have a right of self-defence under both the UN Charter and customary international law and are entitled to require citizens to perform military service for military purposes and this does not, in itself, violate an individual’s rights or constitute persecution. Furthermore, States may also impose penalties on persons who desert or avoid military service where their desertion or avoidance is not based on valid reasons of conscience provided such penalties and the associated procedures comply with international standards.

22. The Tribunal invited the applicant to comment on that position. The applicant replied that he is a conscientious objector and that he is LGBTI. He went on to add that he has violated the international travel requirements by overstaying in another country.

23. The Tribunal asked the applicant when he had become a conscientious objector. The applicant replied that he became so in 2016, after he had overstayed. The Tribunal noted that he was not a conscientious objector at the time that he was required to return for military service.

24. The Tribunal asked the applicant why he had not mentioned the fact of his conscientious objection in his Protection Visa Application which was made in July of 2016. The applicant stated that he was not represented and had completed the form on his own.

25. The Tribunal asked the applicant when he determined that he was a homosexual, noting that the applicant had previously applied for a Partner Visa with a female. He replied in 2016.

26. The Tribunal asked the applicant how his conscientious objection to military service manifested itself. He replied that he is a shy person and so doesn’t publicly manifest it. He states that his friends know that he is a pacifist. He states that he does yoga and is vegetarian. He again maintains that his friends know who he is, but that he doesn’t want to impose himself on others.

27. The Tribunal summarised some of the concerns that it had already with the applicant’s claims.

28. Firstly, permission from the Korean authorities to extend his military service was rejected in 2014, but he didn’t become a conscientious objector until 2016. The applicant responded that he was afraid to claim he was a conscientious objector, but that now he has no other option.

29. The Tribunal noted its concern that he had not mentioned the fact of his conscientious objection in his claims. The applicant responded that it would have come out had there been an interview with the Delegate. The Tribunal noted that the Delegate had made a decision on the papers.

30. The Tribunal noted the applicant’s claims to be a Christian, but noted that 30% of the South Korean population were Christians. The applicant responded that he was not making a protection claim based on his Christianity, but claimed that it supported his claim as a conscientious objector, that he was a pacifist in the religious views that he has.

31. The Tribunal returned again to the applicant’s claim to be homosexual and again noting that for nearly three years he had maintained an application for a Partner Visa with a female. The Tribunal invited the applicant to reconcile this concern.

32. The applicant explained that LGBTI people in Korea tend to hide their identity. He maintained that his relationship with his “partner” was genuine. He said that he “came out” in 2016. He continued, stating that his partner was more than five years older than him and had a child from a previous relationship. The Tribunal enquired of the impact of his “coming out” on his partner. He replied that he was still good friends with her. He stated that they were living together in Melbourne. His former partner is still living in Melbourne. The applicant states that he moved to Brisbane in 2018.

33. The Tribunal spoke of South Korea, and particularly its capital, Seoul, as being a very cosmopolitan city and quite accepting of homosexuals.

34. The applicant responded that his concerns were as to how homosexuals would be treated in the military. He spoke of his own physical presence, as being very slight and as fitting the bill of a classic pacifist. He spoke of his limited capacity for self-defence. He stated that his mother fears for him in the military because of his effeminate appearance.

35. The Tribunal considered the Country Information submitted by the Representative in relation to the treatment of LGBTI people in the military.

36. The applicant stated that he had a friend in the military who was also LGBTI. He said he was in the military in 2011 and was bullied and victimised. His friend was depressed and ultimately committed suicide in 2012. He said that prior to that, his friend was discharged for psychiatric issues and suicided as a consequence of how he was treated.

37. The applicant spoke of his concerns as to who would hire a criminal. He said he would be[age] years of age with a criminal record, and asked how he would get a job.

38. The Tribunal considered the applicant’s work history in Australia [in] hospitality and suggested that he was ideally equipped for a job in South Korea. The applicant agreed, but maintained that he would have a criminal record.

39. The Tribunal enquired of the applicant’s life in South Korea before he moved to Australia. The applicant advised that he had lived in Seoul for three or four years. He advised that his parents were divorced and that he had a brother also living in South Korea. His brother lived close to [Seoul]. His father lived [number] hours from Seoul. His mother lived near Seoul. He stated that he had moved to Seoul to attend university.

1. The Tribunal advised that it would consider the Country Information, brief as it was, submitted by the Representative, but restated the concerns that it had, especially in relation to the making of new claims which it appeared had arisen only in 2016 when he decided that he was a conscientious objector and had determined that he was now homosexual, despite having maintained for three years immediately prior that he was in a genuine partner relationship with a female.

2. Turning to the issue of credibility generally, the Tribunal was impressed by the applicant as a witness. He was particularly articulate. After initial nervousness, the applicant became relaxed and the Tribunal found his responses to be both spontaneous and fulsome.

3. The Tribunal had discussed with the applicant and his Representative its concerns about having very little corroborative evidence in support of the applicant’s claim. No witness statements or witnesses for the Tribunal to interview.

4. In the absence of any such corroborating evidence, the Tribunal was faced with a simple decision - did it believe the applicant’s evidence and was it persuaded that his claims were genuine?

5. The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

   In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[3]

   [3] Guidelines on the Assessment of Credibility (July 2015) Available at >

   However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[4]

   [4] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

6. The Tribunal had expressed its concerns to the applicant about the timing of his application for protection, about the fact of his new claims and the circumstances by which those new claims came to be, and particularly his claim to be LGBTI in 2016, when up until March 2016 he had been maintaining that he was in a genuine heterosexual relationship and seeking a partner visa on the basis of that.

7. As discussed earlier, the Tribunal notes that States have a right of self-defence under both the UN Charter and customary international law and are entitled to require citizens to perform military service for military purposes and this does not in itself violate an individual’s rights or constitute persecution.  Furthermore States may also impose penalties on persons who desert or avoid military service where their desertion or avoidance is not based on valid reasons of conscious provided such penalties and the associated procedures comply with international standards[5].

   [5] UNHCR, Guidelines on International Protection No.10: Claims to Refugee Status related to Military Service within the context of Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, 12 November 2014

8. While the applicant claimed in his submission to be a conscientious objector to compulsory military service and cited his Christianity as evidence of him being a pacifist, he did not claim to be a conscientious objector on the grounds of his religion. In the absence of any other information, the Tribunal accepts he may well prefer not to have to serve in the military if he returns to South Korea and that like many people he may be opposed to being trained in and carrying and using weapons. The applicant spoke of his friends knowing he is a pacifist but provided no evidence in the way of witness statements to support the contention. It is fair to say that the applicant is a latter day conscientious objector, admitting to not having such views until 2016, some two years or more after his request for an extension had been made and rejected. However, on the available information the Tribunal is not satisfied that these reservations are based on any principled objection, informed by moral, religious or political considerations to performing military service.  The Tribunal finds the applicant is not a genuine conscientious objector to compulsory military service.

9. The Tribunal acknowledges, based on the country information submitted by the representative, including relevant articles of the South Korean Military Services Act (Articles 76 and 88), that penalties did apply to persons who refused to undertake compulsory military service, including the possibility of three years imprisonment and exclusion from public employment.  Furthermore, the Tribunal accepts the law was widely applied and that large numbers of young men were reportedly imprisoned for failure to complete military service.   While a New York Times article printed on 28 June 2018 indicated that South Korea’s Constitutional Court had ordered the government to introduce civilian forms of service to spare young men from going to prison for refusing to serve in the military against their conscious, the article indicated that evading conscription would remain a crime.

10. However, the Tribunal notes the latest US State Department’s report on human rights in Korea[6]  which states that in December 2019 the National Assembly amended the law to allow conscientious objectors to fulfill the military service obligation by working for 36 months at a correctional facility. Prior to passage of the amendment, those who refused service faced up to three years’ imprisonment. After passage of the conscientious objector law, President Moon pardoned 1,879 conscientious objectors who had been barred from government service due to past convictions for refusal to serve in the military. The government ceased detaining, charging, or imprisoning conscientious objectors to military service immediately after the 2018 Constitutional Court decision, but prosecutors continued to appeal “not guilty” verdicts, arguing that some Jehovah’s Witnesses who had been acquitted were insincere because they played violent video games or did not routinely attend church. Trials for 935 conscientious objectors that began before June 2018 were still underway as of December 30, including for 63 persons who declined reserve forces participation as opposed to the initial mandatory military service.

    [6] United States Department of State, Bureau of Democracy, Country Report on Human Rights Practices for 2019.

11. The Tribunal notes the representative’s submission in relation to a comment by Amnesty International. He states that recent changes to the law in South Korea has provided little by way of encouraging signs that conscientious objectors to military service will not be harshly punished. ‘They will continue to be punished and stigmatized for refusing military service under the new alternative service law adopted by the South Korean parliament on the 27th December 2019; this law requiring them to work in correctional facilities - jail - for three (3) years’[7]

    [7] Amnesty International (Arnold Fang Researcher) 27 December 2019 UTC >

    The Tribunal accepts the country information contained in the latest US State Department’s report on human rights in Korea and is satisfied that the applicant will not be detained, charged or imprisoned if he maintains that he is a conscientious objector.

12. Notwithstanding this, the Tribunal acknowledges the separate issue of the applicant being potentially liable for punishment for having already evaded conscription. The Tribunal is satisfied that if there was to be any punishment, then any punishment the applicant might receive for evading conscription would be due entirely to the general application of legitimate lawful sanctions resulting from the outcome of a decision of an independent court. 

13. The applicant and representative have also drawn to the attention of the Tribunal a claim that the applicant may be required to complete alternative service for 36 months at a correctional facility. The Tribunal is satisfied that if there was to be any order, then any order the applicant might receive for alternative service would be due entirely to the general application of legitimate legal directives. 

14. As to whether the applicant will be harmed on account of being detained in a South Korean detention facility, and/or alongside other convicted persons, on the basis of his appearance, effeminate as described by his mother, and of slight build as he describes himself (the appearance of a pacifist), or being physically incapable of withstanding the infliction of bashings/ battering likely to occur,  the Tribunal notes that the 2019 US State Department report on human rights states that there were no significant reports regarding prison and detention centre conditions that raised any human rights concerns. There were no major concerns in prisons and detention centres regarding the physical conditions. Deaths in prison were generally consistent with death rates/causes nationally. There were no problems reported with access to prison facilities. The country’s independent National Human Rights Commission has access to correctional facilities to investigate reported cases of human rights violations. Also, the law prohibits arbitrary arrest and detention and provides for the right of any person to challenge the lawfulness of his/her arrest or detention in court and the government generally observed these requirements. Accordingly, the Tribunal is not satisfied that there is a real chance the applicant will face serious harm in connection with any period of detention which might follow him refusing to undertake military service. Similarly, the Tribunal is not satisfied that the mere fact of having a criminal record arising from a legitimate state sanction amounts to serious harm or significant harm as it is explained at s.5J(5) of the Act and s.5J(1) and s.36(2A) of the Act.

15. For these reasons the Tribunal does not accept the applicant is at risk of any serious or significant harm if he returns to South Korea now or in the reasonably foreseeable future for reason of him refusing to undertake his military service.

16. The applicant also stated that he fears actually completing his military service as a LGBTI man and being physically incapable of withstanding the infliction of bashings / battering likely to occur. He spoke of the experience of a friend of his who was bullied whilst in the service, and who was ultimately discharged on psychiatric grounds. The applicant produced no evidence of this person, other than his own statement.

17. The representative submitted a quote from a CNN World News story that reported that “gay” personnel in the military service of South Korea were subjected to many forms of ill-treatment for all of the time they were in military service.

18. The representative submitted that the applicant believes his fate will be far worse given his attempts to avoid military service.

19. The latest US State Department’s report on human rights in Korea[8] states that in 2019:

    ·there were no reports that the government or its agents committed arbitrary or unlawful killings.

    ·there were no reports of disappearances by or on behalf of government authorities.

    ·there were no reported instances of bullying in the military despite a general belief that hazing played a role in suicides in the military.  However, the Tribunal acknowledges the report notes that some mistreatment of soldiers persisted. 

    [8] United States Department of State, Bureau of Democracy, Country Report on Human Rights Practices for 2019.

20. The Tribunal also noted that the same report indicates that the Ministry of National Defence has implemented the Basic Law for the Status and Service of Military Personnel in 2016.  The law aims to ensure the basic rights of personnel and provide remedies for violations of human rights.  With support from the National Human Rights Commission of Korea (NHRCK), the MND has trained military human rights instructors yearly since 2015. It stated it increased the number of human rights instructors receiving training to approximately 800 during the year, up from 600 in previous years. The ministry also worked with the Defense Media Agency to produce and distribute human rights education television programs to military personnel. 

21. The Tribunal has considered the applicant’s responses and acknowledges his post-hearing evidence lends some support to the fact that bullying is an occurrence in the army.  However, in the Tribunal’s view country information also indicates that the Korean authorities are taking the problem of bullying seriously.  Indeed, since the 2014 article was published the above information shows that further steps have been taken to prevent such behaviour and to provide remedies in circumstances where it occurs.

22. The Tribunal is satisfied that even if he went back to South Korea and decided to complete his military service and did encounter some bullying or physical harassment it appears that the South Korean authorities have put protections in place against such behaviour.

23. In view of the country information outlined above, the Tribunal is satisfied that the South Korean authorities are motivated to deter bullying behaviour in the military and are capable of providing protection to conscripts who are subject to bullying and physical harassment in the course of completing military service.  On this basis, the Tribunal is satisfied that the applicant could obtain from an authority of the country protection such that there would not be a real chance he will suffer serious or significant harm if he undertakes military service and is subject to such behaviour on return to South Korea. 

24. Having considered all the available evidence, the Tribunal is satisfied that there is not a real chance the applicant will suffer serious harm if he chooses to, or is required to, complete his military service on return to South Korea.

100.   The Tribunal considered the applicant’s comments about COVID-19, comments the applicant made in his closing remarks to the Tribunal. The Tribunal has also considered articles the applicant submitted post-hearing. The applicant did not articulate a particular claim however, so the Tribunal will assume he fears being returned to South Korea where the virus has spread and may fear the risk of catching it.

101.   Even if the applicant genuinely held such fears, the Tribunal is of the view that even if well-founded, the claim fails as the harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion. It is not so directed.

Cumulative claims

102.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of his conscientious objection to military service, his being LGBTI and/ or being physically incapable of withstanding the infliction of bashings/ battering likely to occur, and completing military service, his being ordered to complete alternative service in a correctional facility, his evasion of military service, his treatment in the military or at the correctional facility as an LGBTI man, the COVID-19 pandemic or any other reason if he returns to South Korea now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to the Republic Of Korea. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act. 

Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?

103.   The Tribunal has considered the applicant’s claims under complementary protection.

104.   Having regard to the Tribunal’s findings of fact above that there is no real chance that the applicant will suffer persecution as a consequence of his conscientious objection to military service, his being LGBTI and completing military service, his being ordered to complete alternative service in a correctional facility, his evasion of military service, his treatment in the military or at the correctional facility as an LGBTI man, the COVID-19 pandemic or any other reason if he returns to South Korea now or in the reasonably foreseeable future, the Tribunal does not accept that the applicant fears that he will suffer significant harm from the same reasons.

105.   The Tribunal finds that the applicant would not be faced with unreasonable difficulties finding accommodation or employment in South Korea if he was required to return as he has family members still living in the Republic Of Korea.

106.   The Tribunal accepts that his concerns about COVID-19 amount to a risk faced by the population generally, and not by him personally.

107.   In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to the Republic Of Korea now or in the reasonably foreseeable future.

108.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to the Republic Of Korea now or in the reasonably foreseeable future.  

Conclusion: Refugee Criterion

109.   Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.

Conclusion: Complementary Protection

110.   Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the Republic Of Korea that there is a real risk that he will suffer significant harm.

Overall conclusion:

111.   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).

112.   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).

113.   There is no suggestion that the applicant satisfies 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 applicant does not satisfy the criterion in s.36(2).

DECISION

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

Michael Hawkins
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

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

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

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

…

5H    Meaning of refugee

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

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

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

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

…

5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b)     significant physical harassment of the person;

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

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

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

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

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

5K    Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L    Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i)the relevant State; or

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

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

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

(a)     the person can access the protection; and

(b)     the protection is durable; and

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

…

36     Protection visas – criteria provided for by this Act

…

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

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

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

…