1707488 (Refugee)

1707488 (Refugee) [2020] AATA 4367 (12 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1707488
COUNTRY OF REFERENCE:                   Korea, Republic Of
MEMBER:Luke Hardy
DATE:12 October 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 October 2020 at 2:54 p.m.
CATCHWORDS
REFUGEE – protection visa – South Korea – lived in Australia from young age – parents borrowed large amounts of money – fear of harm from creditors – new claims to tribunal – fear of harm as ‘foreigner’ during compulsory military service – claims to be unable to speak or understand Korean and unfamiliar with culture – credibility – inconsistent evidence – parents and guardians – Korean church and employer – visa history, including previous refusals, tribunal reviews and application for ministerial intervention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1), 5J(1), 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant] is a citizen of the Republic Of Korea (South Korea/Korea). He has four aliases, but these all appear to be variant transliterations of his Korean name. He first arrived in Australia, aged [Age], with his parents in 1995. He departed for Korea two times since then, the second time in 2005 at the age of [Age] and as an unlawful non-citizen. The last time he arrived in Australia it was under the name that appears at the top of this record: [the applicant]; on a student visa. In 2009, [the applicant] applied for Australian citizenship; his application was refused in 2010. He applied for review of that refusal but withdrew. He retained a valid student visa and applied for a confirmatory residence visa, in 2014, which was refused. He sought merits review of that refusal but without success. He then sought Ministerial intervention but the request, he was told on 27 June 2016, was not considered. By this stage, [the applicant’s] student visa had expired and he had again become unlawful, although in 2015 he was granted a bridging visa valid to 11 August 2016.
[The applicant] lodged a protection visa application on 4 August 2016, a week before his bridging visa expired; he was almost [Age] when he applied.
The delegate refused to grant the visa on 23 March 2017. [The applicant] then sought review by this Tribunal, and the matter was constituted to me.
[The applicant] appeared before the Tribunal to give oral evidence and present arguments. He was unrepresented. No interpreter was required.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.
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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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 issues
The main issue in this case is whether, on accepted facts, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the former Immigration Department (the Department)
[The applicant] claimed he was an only child born in Busan, South Korea. He claimed his parents brought him to Australia. He claimed his parents separated, his father remaining in Australia and his mother returning to Korea (see Q.42 of the primary application form at f.51 of the Department’s file.) Before this happened, he claimed, he was taken back to Korea to visit relatives when he was [Age]. He claimed to have one personal contact in Australia, a [Mr A] who he described as a family friend living in [Suburb 1] NSW. He did not name his parents in his protection visa application. He did not state (at Q. 29 of the primary application form) which languages he could speak, read or write. He claimed to have attended various schools in NSW including one [school] and one [college]. He said he worked, or had worked, as [an Occupation] with a company called “[Company].”
[The applicant] claimed that his mother left him when he was young. He claimed he relied during his life here on money sent from “various sources” in Korea. He claimed the amount sent to him had amounted over time to A$300,000. He claimed that the money had been lent by a private creditor and that he was legally liable to repay it. He claimed he would never be able to repay the principal and the interest on the amount lent. He claimed he might be convicted of fraud if he returns to Korea.
[The applicant] claimed that when he was taken back to Korea to visit his relatives in 2005, at the age of [Age], he was shouted at by his creditor(s). He said he could remember this clearly even though he had been very young. He did not provide any detail as to how he came face to face with such a person or people at that time. He seemed to indicate, however, that the relatives themselves did the shouting, implying that they lent the money.
[The applicant] claimed to the Department that he could not avail himself of state protection because the loan(s) and the debt(s) was (or were) entirely legal. He said he could not relocate to any other part of Korea because the lender(s) would easily find him. Since he suggested that the lenders were his relatives, he seemed to be saying it would be easy for his relatives to find him in Korea. I take that to mean it would logically be just as easy for him to locate relatives in South Korea if he wishes or needs to do so.
Later in his protection visa application form, [the applicant] appeared to describe his creditors as “loan sharks” threatening violence. The term “loan sharks” is commonly used to describe people who lend money outside of the law and regulations at usurious interest rates. [The applicant]’s reference to “violence” indicates that he was now talking about an illegal loan, or one that was, because of the “violence” or threat of the same, being illegally enforced. He said that the Korean police “would not help us” who borrow from violent loan sharks.
[The applicant] made these claims when he was weeks from turning [Age]. He declared at the end of the primary application form that he had confirmed that his claims were true, correct and complete. He stated that he had not received any assistance in completing his application.
Evidence to the Tribunal
The Tribunal received a number of submissions from [the applicant] in May 2017. The submissions run to just over one hundred pages (ff.17-118 of the AAT file). They include a covering summary of claims and legal arguments from a migration agent. None of these submissions refer at all to [the applicant]’s original claims to the Department about a loan.
In the May 2017 submissions, produced only two months after the finalisation of the delegate’s decision, [the applicant], then aged [Age], appeared to be making an entirely new set of claims: he claimed that he feared having to perform compulsory national military service in Korea because, as he now claimed, he can neither speak nor understand Korean and would be singled out by other recruits as being tantamount to a “foreigner” and be discriminated against for that reason. He clearly indicated that he held no conscientious objection to military service as such. He provided independent evidence of instances of bullying and “hazing” in the South Korean military. He also provided some statistics of suicides committed by serving conscripts and discharged conscripts.
I put to [the applicant] that, whereas a South Korean national becomes liable for around 20 months of military service at the age of 18, or at least usually by 20, he had made no claims regarding military service in his protection visa application when he was still [age] years old. I also put to him that he did not appear to have pursued any of his claims about the alleged loan(s) in submissions since the delegate’s decision, not even to rebut any aspects of the latter.
The matter of [the applicant]’s original claims about the alleged loan(s) and lender(s) appeared to become more confusing, in the course of the Tribunal hearing, when [the applicant] presented a substantially different version of events from the one that appears in his original protection visa application form.
At the Tribunal hearing, [the applicant] now claimed that the loan was one that had been taken out by his paternal grandfather for the purposes of investing in a venture of some kind in [Country]. He said his father “therefore” brought him and his mother to Australia. He said he was implicated because the loan agreement said his grandfather’s “family” would repay it. I put to him that implied his father was included, as he, [the applicant], was only [Age], and therefore only a very young infant, when his father, purportedly subsequently, brought him to Australia. In response, [the applicant] said he himself was also cited in as a debtor in the loan. Then he said he was not sure. Then he said the loan had been made out in his name. He said that this was why his father had disappeared. However, he said his father left his family in 2006 or 2007, when he, [the applicant], was still in high school. This was after he had been taken back to see relatives in 2005. I indicated to [the applicant] that much of this evidence about his having been named in some loan agreement appeared implausible.
[The applicant] told me he no longer has any living relatives in Korea as far as he knows. He said he used to have a grandmother there. He said she had died, however. I asked him to tell me when his grandmother had died and he said he was not sure as his mother had gone back to Korea and had fallen out of contact with him since she called him to congratulate him on his matriculation in [Year]. This explanation did not logically explain at all how he knew that his grandmother in Korea had died, since he had already apparently already lost contact with the only person who could tell him. Soon after making this claim, [the applicant] said he was not even sure his mother was or is in Korea.
I asked [the applicant] if his grandfather and/or father might have already repaid the loan. He speculated that he did not think so. I asked him how the lender of the money would be able to locate him and he said the lender has his telephone number. When I put to him that he could simply change his SIM card and telephone number with it, he changed his evidence, and said that the lender would be able to find him through his grandmother’s telephone number, and then seemed to revise this a little, referring to his grandparents’ telephone number. I put to him that this contact information would be useless to the lender since it seemed, according to claims just made, that he might have o living relatives in Korea. [The applicant] then changed his evidence again: he said that the lender would be able to locate him in the event of his return to Korea because the lender had a copy of the details of his national ID card. I asked him how the lender would be tipped off about his return to Korea, say, over twenty years since the loan to his grandfather (or late grandfather) was made. In reply, [the applicant] said he did not know; he said he was not sure how the system works in Korea.
I asked [the applicant] if he had ever met the lender. Having regard to his original claims, I was expecting him to say he did so at the age of [Age] in 2005. However, he initially said, “No,” and then said that he might have met the lender when he was [Age] years old. This prompted me to ask him who had shouted at him when he visited Korea at age [Age] in 2005, and he said that his father shouted at him. I asked [the applicant] to tell me who took him back to Korea in 2005 and he said his mother took him. I asked him who had shouted at him then, and he said that whoever did so probably spoke Korean and that he therefore did not know. He now claimed that he could not speak or understand Korean. In any event, here, he essentially contradicted his previous claim about having a clear memory of having been shouted at in the context of the alleged loan.
I put to [the applicant] that the loan claims in his original protection visa application (ignored or omitted in his submissions to the Tribunal) were very different from the claims he was making at the Tribunal hearing. In reply, he said he did not write his application. I put to him that the application was nevertheless in English, the only language he now claimed to understand. I also drew his attention to having solemnly declared that all of the information in his primary application was true, complete and correct. In response to all this, [the applicant] said that “maybe” his “mother’s brother” had written his claims for him, because that person, his “mother’ brother” had been made his legal guardian. He provided no evidence to support any of this; in addition, seemingly at variance with this description of guardianship, he had referred earlier in the hearing to having been left by his mother in the care of a man named “[Mr A – Alias],” who had been a friend of his father’s.
[The applicant]’s reference to his “mother’s brother” having been appointed as his “legal guardian” suggested a much more orderly transfer of responsibility over him that his claims about his parents having respectively “disappeared.” At the same time, it was hard to see why [the applicant], who speaks fluent English, needed to rely on a “legal guardian” at the adult age [when] he lodged his protection visa application.
I put to [the applicant] that although he was still very close to military call-up age when he lodged his original protection visa application, there was no mention at all of any concerns about conscription in that application. In reply, [the applicant] said that his solicitor at the time of his application advised him just to refer to the loan claims. I then put to [the applicant] that he had just been claiming to me that his “mother’s brother,” who was also his legal guardian, had “maybe” written his claims. In reply, he said “he was there.” I put to him that this claim was contradicted by the assertion about not having received assistance with his protection visa application.
I then asked [the applicant] to describe [Mr A] to me. (see paragraph 14 above.) In reply, he said that this was the man with whom his mother had “placed” him when she went back to Korea, and whom he called “uncle.” I asked him how the name “[Mr A]” had come out of his mouth earlier in the hearing as “[Mr A – Alias],” a name he had even gone to the trouble of spelling out for me. In reply, [the applicant] said, “I just called him uncle.”
On the evidence discussed up to this point, I can accept that [the applicant] was brought to Australia by his parents in 1995 and was taken home by his mother to visit relatives in 2005 when he was [Age]. I can accept that his parents broke up and that his mother, at least, returned to Korea around 2009 or 2010 when [the applicant] was about [Age] or [Age]. I can accept that [the applicant] was placed in the care of a Korean, or Korean-born, adult. I can also accept that [the applicant] subsisted for a while after his mother left, at least, on money sent somehow from Korea, and I am prepared to accept, as it is a common enough phenomenon, that there is an expectation that [the applicant] be sending money back home to Korea now that he is an adult. However, in light of the many inconsistencies, apparent improvisations and instances of outright implausibility in [the applicant]’s evidence, I do not accept either version of the loan claims, or any of the explanations as to how they came to appear in the form, or forms, in which they appeared. In addition, I draw negative inferences as to [the applicant]’s reliability due, one, the absence of any reference to his loan claims in the May 2017 submissions, which he submitted to the Tribunal through a solicitor, and, two, due to there being no explanation for the omission of even a reference to that strand of [the applicant]’s claims in what can reasonably be regarded as a response to the delegate’s decision on those facts.

To sum up, I have found numerous bases upon which one could reasonably regard [the applicant] as being an unreliable witness in the matter of the loan claims.
Turning then to the claims about military service, [the applicant], relying on the confusing and contradictory evidence about who helped him fill out his form, did not provide a satisfactory reason for their total omission from his primary application. It struck me as odd that he had not previously made claims about fearing harm during military service, especially since he had already been of conscription age at the he lodged his primary application.
Central to this new strand of facts are [the applicant]’s claims about having been “de-tribalised,” as it were, after spending nearly all his of life and most of enculturation in Australia, and about not being able to speak or understand Korean language beyond a few words like “Hello.” However, these claims appeared to be cumulatively undermined by several items of information that [the applicant] provided to me at the hearing.
[The applicant]’s evidence at the hearing indicates that his contact with other Koreans throughout his life in Sydney, such as with his mother’s brother, and with the daughters of the latter, has been more than originally claimed.
[The applicant] claims he was living for a significant period in the household of a Korean “guardian” appointed by his, [the applicant]’s, Korean mother. [The applicant] claims he addressed this person, after the colloquial Korean fashion, as “uncle.” It strikes me as odd that [the applicant] was lodged not with her brother, his legal guardian, but with a friend of the husband she had left. This adds to the incongruity of [the applicant] having named the second person, alternately, as “[Mr A]” and “[Mr A – Alias].”
On the evidence of that [the applicant]’s mother having left him in Australia in a more orderly way than originally claimed, and on the evidence of her having called him from Korea, as discussed earlier, I find it hard to accept that she has cut contact with him. It is also very hard to accept on the evidence before me that her congratulatory telephone call in 2011 was her last. [The applicant] also gave inconsistent answers in response to my questions about whether his mother and her brother here in Australia remained in touch: he said he did not know if they were in touch, on the basis of his mother’s brother never having said anything to him on the subject, and then asserted categorically that they were not in contact, which he could not have known if his brother, as claimed, had not discussed the topic with him.
[The applicant] told me at the hearing that he has for many years been attending a Korean Protestant church called the [Korean name] Church in [Suburb 2], NSW. He translated [Korean name] as meaning “[English name 1].” I note from a Google map search that it may in fact mean “[English name 2],” but, more significantly, [the applicant] told me that the church’s main services, which he attends every week, are in Korean, with some other gatherings in English. He indicated that most of the people attending that church are Korean. He said he used to be taken there by his parents and that it had become a surrogate family.
[The applicant] told me that he works on a casual basis for that same church: the notion of an acorn falling not far from the tree comes to mind. He said he attends the church on Saturdays and Sundays and even goes during the week. I asked him to name the pastor at that church and he said he was “not sure,” a response that struck me as being somewhat hard to believe in the claimed circumstances, given that the parish pastor would essentially be his employer.
I asked [the applicant] to describe the [company] [Company name] to me as he claimed to have worked for that entity. He said it was run by his Korean “uncle,” who was now [Mr A], rather than [Mr A – Alias], as earlier claimed. However, when I asked him to confirm on the record whether this man was called [Mr A] or [Mr A – Alias] he said he did not remember because he was called “[English nickname]” in English. On the evidence before me, this response appeared somewhat evasive. When I asked [the applicant] if his “uncle” who was called “[English nickname]” employed any Koreans, his answer appeared digressive: he said his “uncle” was a contractor”. When I asked him if his uncle employed or sub-contracted other Koreans he said he did but no-one spoke Korean to each other in the workplace. Then he said he did believe his “uncle” could speak Korean.
[The applicant] made it very clear in his oral evidence that the language barrier was the main factor in his fear of being singled out for discrimination and relevant harm in the Korean military. He said that he could not see himself returning to a country about which, he claimed, he knows “nothing.” He said that bullying occurs in every socially-organised structure in Korea, but is particularly aimed at ostensibly Korean people who act or are deemed to be “foreign.”
I put to [the applicant] that if, as he claims, he could not speak or understand any Korean, the military would in its own interests need to deploy him in some kind of alternative service. He did not deny the existence of such options; he said his main concern was language. I asked [the applicant] a number of questions going to the issues as to a “real chance of being persecuted” and a “real risk [of] significant harm.” In the main he directed me to anecdotal and statistical evidence in his submissions, which I have now duly considered. One of the more particular and personal elements in his overall claim related to his age: he said that he was already [Age] years old and older than most conscripts, and that this characteristic would heighten the possibility of his being singled out for intentional and discriminatory harm. Overall, [the applicant]’s claims appeared generally to be speculative.
It is reported that, whereas the majority of conscripts commence military service at or around 20 years, the conscription age in South Korea is 18 to 28 years and there are evidently many who delay their induction until they are 28.[1]
[1] “Military Service in Korea,” 90-day Korean, 2 October 2020,
As I discussed with [the applicant], it is also reported that males deemed unfit or unsuitable for regular military training in Korea may be allowed to complete their military service through non-active duty, such as through social work or other services for the government.[2] [The applicant] generally denied that any of this would be possible in his case, but he was unable to say how the army would be able to place him in training with arms and ordnance, or why the army would do so, at risk to the safety of his fellow soldiers in such circumstances, if he could not understand orders, instructions and safety advice. I have read of a foreign-raised conscript around twenty years ago having been mocked for his broken Korean, called out for relying on pocket dictionaries and having been given menial duties, such as cleaning officers’ golfing equipment.[3] I have also read the Korean military is currently implementing the opening up of military service to foreigners who are naturalised citizens, so there is evidently some change afoot.[4] Hazing occurs and every year there are some suicides: “Things are getting better, but it was normal to hear of men who were perfectly normal before entering the military and came out not normal … different [from how] they were before.”[5]
[2] Ibid.
[3] “South Korea wants to draft more men for its shrinking military — and punish those who dodge,” The World, 9 December 2019,
[4] Ibid.
[5] Ibid.
[The applicant] said that the exploitation, abuse and belittling of subordinates happens, or can happen, in every structured environment within Korean society. He says that while such treatment can affect the population of the country generally, it is particularly focused, in the military context, on foreign-raised Koreans.
Findings with regard to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[6] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[7]
[6] MIMA v Rajalingam (1999) 93 FCR 220.
[7] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[8] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[9]
[8] 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
[9] Sun v MIBP [2016] FCAFC 52 at [69].
I accept that [the applicant] was brought to Australia at the age of [Age] by his parents. I accept that the relationship between his parents broke down more than once but did so definitively between 2006 and 2007. I accept that [the applicant]’s mother left him in the care of others in 2009 or 2010. I accept that efforts were made on his behalf to have him granted permanent residency citizenship after several years of living here. I note the changes in his name, but I do not find that these were made for the purposes of avoiding the attention of Korean authorities for any reason. I note that one name change occurred between [the applicant] departing Australia as an unlawful non-citizen on one passport and his arrival here as a student on another.
[The applicant]’s claims relating to loans and debts he cannot repay have no nexus with s.5J(1)(a). Due to the consistencies and implausible facts discussed above, they also lack credibility. I find [the applicant] an unreliable witness in regard to his claims about the loan(s). I do not accept that he has been a witness of truth in this matter. I am not satisfied that he faces a real chance of being persecuted in South Korea in the reasonably foreseeable future in relation to any financial matter as claimed.
[The applicant]’s claims relating to the prospects of being abused and hazed in the Korean military have some nexus with “membership of a particular social group” that can reasonably be characterised as “Korean males who have been raised abroad.” I accept that such a group is cognisable in Korea; accordingly, I accept that the “particular social group” exists. It remains for me, one, to determine if [the applicant] will be perceived to some potentially significant extent belong to, or have “membership of,” such a group and, two, if he faces a real chance of being harmed for reasons of that “membership.”
There is some evidence that hazing, various forms of abuse and humiliation occur in the Koran military, not just from above downwards but also amongst peers. There is some evidence of recruits being targeted due to physical characteristics and social prejudices. Articles submitted by [the applicant] and located separately by me have reported the unhappy past experiences of some foreign-raised Koreans during national service.
[The applicant]’s own claims about the potential to be singled out by other soldiers and victimised as a perceived “foreigner” rely on his claims about having little or no experience in, or comprehension of, Korean language or Korean social expectations, proclivities and norms. These claims depend to a large extent on my accepting that he is a witness of truth. They are understandably difficult to establish or prove because in both they are essentially about absences, as it were: one may more easily demonstrate an ability, to some extent, than the lack thereof.
In considering [the applicant]’s claims about alienage and lack of facility in the Korean language, I have found useful guidance at paragraph 196 of the UN’s Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees:
196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.
[my emphasis]
There are a number of factors supporting findings to the effect that [the applicant] has enjoyed some comprehensive integration into Australian culture: he evidently attended all of his schooling in Australia and he speaks colloquial English with what one might call an entirely unalloyed Australia accent. However, these factors alone do not mean that he is to any significant extent alienated from Korean culture. I acknowledge that [the applicant]’s claims about alienage and lack of Korean fluency “are not susceptible to proof.” In the circumstances, it is appropriate to consider if his claims in these regards are credible. In considering this question, I have had regard to the fact that the bulk of [the applicant]’s claims about the loan(s) depended to a degree on accepting that he was singled out as a debtor, and even the debtor, in the loan. Those claims also depend to a degree on accepting that [the applicant] has no known family contacts in Korea. Both of these are claims that I have found, for reasons of inconsistency, to lack credibility. These findings do not help me to have confidence in giving [the applicant] the benefit of the doubt in relation to his claims about alienage from Korean culture or about being unable to speak or comprehend Korean.
Furthermore, although he was raised in Australian schools, where English was logically the medium language, [the applicant] was raised in Korean households. He voluntarily attended a Korean Protestant church where the main services are conducted in Korean language and where he feels he is amongst “family.” He has only ever worked for ethnic Korean employers. His suggestion that he does not even know the name of the pastor at his Korean church could be taken in some circumstance or other as evidence of his lack of familiarity with the congregation there, but [the applicant] claims to go to that church up to three times a week and also claims to work for that church casually. [The applicant]’s evidence about whether he was familiar or not with his mother’s brother and family was somewhat inconsistent. Generally, I found [the applicant] was evasive when I asked him questions about how he managed to function and fit in within the arguably all-Korean environments in which he has elected to move all through his youth and young adult life. This was particularly the case when I asked him if his boss, who was either [Mr A – Alias] or [Mr A] (this was never resolved), spoke Korean with his Korean employees.
[The applicant] has also been inconsistent in his evidence as to what he comprehended from the alleged shouting he received back in Korea in 2005. Whether that claimed shouting occurred or not, and I do not believe on the facts that it did, it is nevertheless the case that [the applicant] claimed, at least in his original protection visa application, that he knew enough Korean to be able to recall what the shouting had been about.
[The applicant]’s claims about having lost his mother tongue due to separation from his family are also undermined to a certain extent by some inconsistency in his descriptions of his mother having “disappeared.” These claims are at odds with the evidence of his orderly handover into the care of an “uncle” and/or “guardian”. I have given this factor some cumulative weight.
On the evidence before me, I am not satisfied that [the applicant] is telling the truth about being unable to speak or comprehend Korean. I give substantial weight to his evident immersion in the Korean community in NSW in concluding thus, and I also infer from his evidence, in spite of assertions to the contrary, that he has been comprehensively included by the community. No evidence before me suggests that the ethnic Korean community in NSW that includes [the applicant] in these ways is to any significant extent less cohesive, or more liberal, or less discriminating or more laissez faire than in South Korea itself.
In addition, I give some weight to the unsatisfactorily explained delay on [the applicant]’s part in bringing to light his claims about fearing military service in Korea. On the whole, in view of the delay, I am not satisfied he genuinely fears being singled out for harassment or serious harm. This leaves me inferring, and accordingly finding, that he has significantly greater social and language acuity than he claims, such that the chance of his being singled out for mistreatment, as a perceived foreigner, or for any other reason, is subjectively and objectively remote.
On the evidence before me, I accept that [the applicant], now [Age], will be liable to report for military service if he arrives in South Korea in the reasonably foreseeable future, but I am not satisfied on the evidence before me that [the applicant] faces a real chance of being singled out for any potentially significant reason such as for being, or seeming, a stranger to Korea, or a perceived foreigner. I am not satisfied that he faces a real chance of serious harm in the military for reasons of being a perceived “foreigner” or the like. I am also not satisfied that he faces a real chance of suffering such treatment in the wider community in South Korea or in sectors of it such as workplaces, churches or other environments.

Having considered all of the evidence in this matter in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in South Korea in the reasonably foreseeable future for any reasons cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted is not well founded. He is not a refugee.
For all the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings with regard to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a citizen of the Republic of Korea, I find that Korea is the “receiving country” in this case.
I find that the harm [the applicant] identifies in his claims appears to include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
[The applicant]’s claims to complementary protection are essentially the same as his refugee status claims. His claims have failed as refugee status claims due in many instances to a lack of consistency and reliability and, ultimately, to their not having met the “real chance” test. In the circumstances, those claims can no more succeed as complementary protection claims.
On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Korea, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
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.
…

[2020] AATA 4367

12 October 2020

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Immigration

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