1704758 (Refugee)

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.