1704758 (Refugee)

Case [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…

Continue reading 1704758 (Refugee)

Sign in free to access the full text

Details
AGLC
1704758 (Refugee) [2020] AATA 2915
Case
[2020] AATA 2915
Decision Date

CaseChat Overview and Summary

The applicant, a male from the Republic of South Korea, sought review of a decision to refuse him a protection visa. The dispute centred on whether the applicant met the criteria for a protection visa, either as a refugee or through complementary protection, based on his claims of being a conscientious objector to compulsory military service and fearing harm as an LGBTI individual in the military. The matter was heard by Michael Hawkins.

The court was required to determine if the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as defined by section 36(2)(a) of the Migration Act 1958. Additionally, the court had to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia, the applicant faced a real risk of suffering significant harm, as per section 36(2)(aa) of the Act.

The Tribunal found that the applicant was not a genuine conscientious objector, noting his claims of pacifism emerged in 2016, significantly after his requests for extensions to avoid military service. While acknowledging penalties for evasion existed in South Korea, the Tribunal relied on recent country information indicating that new laws allowed for alternative service in correctional facilities and that the government had ceased detaining or imprisoning conscientious objectors. The Tribunal was satisfied that the applicant would not be detained, charged, or imprisoned and that any punishment for evasion would stem from lawful sanctions. Furthermore, the Tribunal found no real chance of significant harm from detention conditions or from potential bullying or harassment within the military, citing measures implemented by South Korean authorities to deter such behaviour and provide remedies. The Tribunal also concluded that the applicant's fears related to being LGBTI in the military were not substantiated by sufficient evidence to meet the threshold for significant harm, given the protections and remedies available. Consequently, the Tribunal affirmed the decision not to grant the protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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: 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: The applicant is [an] [age]-year-old male, born in the Republic of South Korea. The applicant left South Korea to study and travel in Australia. He first arrived in Australia [in] February 2008 as the holder of a [(Student)] Visa. He departed Australia [in] August 2008. 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. The applicant arrived in Australia again as the holder of a Sub-Class 976 (Electronic Travel Authority) Visa [in] October 2009. He applied for a [further] (Visitor) Visa on-shore which was granted on 5 February 2010. He applied for a further [(Visitor)] Visa on-shore which was granted on 23 April 2010. He departed Australia [in] October 2010. The applicant arrived in Australia again [in] October 2010 as the holder of a Sub-Class 977 (Electronic Travel Authority) Visa. 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. 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. The applicant arrived in Australia again [in] February 2013 as the holder of [a] (Student) Visa which was to cease on 30 August 2013. 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. The applicant sought review of that Decision with the Migration Review Tribunal. However, the department’s decision was affirmed on 9 June 2016. The applicant applied for a Protection Visa on 5 July 2016. 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. The applicant claims that from 2008 to 2013, the applicant had travelled and studied in Australia. 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. The applicant claims he applied for a Permanent Partner Visa in Australia in August 2013. 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.

Evidence

Evidence Before The Court

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 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: 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: The applicant is [an] [age]-year-old male, born in the Republic of South Korea. The applicant left South Korea to study and travel in Australia. He first arrived in Australia [in] February 2008 as the holder of a [(Student)] Visa. He departed Australia [in] August 2008. 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. The applicant arrived in Australia again as the holder of a Sub-Class 976 (Electronic Travel Authority) Visa [in] October 2009. He applied for a [further] (Visitor) Visa on-shore which was granted on 5 February 2010. He applied for a further [(Visitor)] Visa on-shore which was granted on 23 April 2010. He departed Australia [in] October 2010. The applicant arrived in Australia again [in] October 2010 as the holder of a Sub-Class 977 (Electronic Travel Authority) Visa. 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. 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. The applicant arrived in Australia again [in] February 2013 as the holder of [a] (Student) Visa which was to cease on 30 August 2013. 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. The applicant sought review of that Decision with the Migration Review Tribunal. However, the department’s decision was affirmed on 9 June 2016. The applicant applied for a Protection Visa on 5 July 2016. 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. The applicant claims that from 2008 to 2013, the applicant had travelled and studied in Australia.

Decision

Reasons for decision

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.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.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 2014While 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. 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.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.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.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. 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. 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. 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. 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.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.The representative submitted that the applicant believes his fate will be far worse given his attempts to avoid military service. 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.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. 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. 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.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. 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 claims102. 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 Criterion109. 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 Protection110. 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).DECISION114. The Tribunal affirms the decision not to grant the applicant a protection visa.Michael HawkinsMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.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 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: 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: The applicant is [an] [age]-year-old male, born in the Republic of South Korea. The applicant left South Korea to study and travel in Australia. He first arrived in Australia [in] February 2008 as the holder of a [(Student)] Visa. He departed Australia [in] August 2008. 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. The applicant arrived in Australia again as the holder of a Sub-Class 976 (Electronic Travel Authority) Visa [in] October 2009. He applied for a [further] (Visitor) Visa on-shore which was granted on 5 February 2010. He applied for a further [(Visitor)] Visa on-shore which was granted on 23 April 2010. He departed Australia [in] October 2010. The applicant arrived in Australia again [in] October 2010 as the holder of a Sub-Class 977 (Electronic Travel Authority) Visa. 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. 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.