1712252 (Refugee)

1712252 (Refugee) [2021] AATA 4374 (18 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712252
COUNTRY OF REFERENCE:                   Republic of Korea
MEMBER:Brendan Darcy
DATE:18 August 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 18 August 2021 at 9:18am
CATCHWORDS
REFUGEE – protection visa – Republic of Korea – complementary protection – socio-economic hardship – close to retirement age with personal debts and no assets or savings and limited family or community support – visa, employment and small business history – application made after applications for business visas refused – second applicant’s mental health and adult children’s physical health – one child an Australian citizen – country information – societal discrimination against mature-aged workers – request for referral for ministerial consideration not granted – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J(1)(a), 5L, 36(2)(a), (aa), (2A)(e), 65, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
MZZIA v MIBP [2014] FCCA 717
SZRSN v MIAC [2013] FCA 751
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 (now Home Affairs) on 18 May 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of the Republic of Korea (South Korea), applied for the visas on 12 June 2015. The delegate refused to grant the visas on the basis that the first-named applicant (‘the first applicant’ or ‘the applicant’) did not meet the criteria for protection under ss.36(2)(a) or (aa) and the second-named applicant (‘the second applicant’) therefore did not qualify as a member of the family unit of the applicant.
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, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–5LA, 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.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 (DFAT) 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 is owed protection under the refugee criterion or the complementary protection criterion and should not be returned to South Korea.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The first applicant was born in Yongsan-gu, Seoul, in [Year 1], and is a citizen of South Korea by birth. He stated he can speak, read and write Korean and English, and that his ethnicity is Korean, and religion is Christian. His highest educational attainment is [Qualification 1] from [College 1], Seoul, completed [Year 2]. He stated he has worked as [Occupation 1], self-employed partner, [Occupations 2-3] since arriving in Australia in 2009.
The second applicant was born in Gangneung, Gangwon-do, Korea, in [Year 1], and is a citizen of South Korea by birth. She declared she can speak, read and write Korean, and that her ethnicity is Korean and religion in Christian. Her highest education is [Qualification 2] from [College 2] in [Year 3]. At the time of application, she worked with her husband in their [business].
The applicants claimed to be in a married spousal relationship since in 1986 and have two children (two daughters).
The first applicant declared his nephew and cousin as family members who are currently residing in Australia, and his father, mother, [brothers] and sister as immediate family remaining in Korea. The second applicant declared the same nephew and cousin, and her [sisters] and [brothers] as family in Korea.
The first applicant initially arrived in Australia holding an Electronic Travel Authority (Business Entrant) visa on [in] May 2006. The second applicant arrived [in] February 2007 holding a Student Guardian (TU-580) visa. Both applicants were granted Australian Temporary Work (UR-163) visas on 21 January 2008. They were both refused Temporary Work (Skilled) (UC-457) visas on 19 December 2013. On 20 May 2015, the Tribunal, differently constituted, affirmed the decision to refuse the Temporary Work visas. On 12 June 2015, the applicants lodged the current protection application.
The applicant provided several passports to the Department:
·Current passport, issued [2012], expiry [2022] (f. 122);
·Previous passport, issued [2007], expiry [2012] (f. 98);
·A further previous passport, issued [2002], expiry [2007] (f. 97).
The last time the applicant visited South Korea was between [February] 2009 and [May] 2009.
The second applicant also provided the following:
·Current passport, issued [2012], expiry [2022] (f. 95);
·Previous passport, issued [2007], expiry [2012] (f. 70); and
·A further previous passport, issued [2002], expiry [2007] (f. 71)
The last time the second applicant visited South Korea was between [July] 2013 and [August] 2013.
The applicant also provided a copy of his family registration, original and accredited translation, dated 19 June 2012, and a certificate of graduation relating to his highest qualification. Also attached to his application was a memo from his representative, dated 12 June 2015, noting that the agent explained the unlikely prospect of success in the visa application to the applicant, and further that the applicant wishes to proceed and have the matter referred for Ministerial intervention if unsuccessful.
The first applicant’s claims for protection are first advanced in answers to questions on the Application for Protection form (866C) lodged with the Department on 12 June 2015, in which he claims:
·After arriving in Australia, his property in Korea was damaged and its sale price plummeted, resulting in a significant loss of money and an inability to implement his business plans.
·The applicant disposed of his property and assets when he came to Australia, and would be financially destitute if he had to return to Korea.
·The applicant did not experience harm or attempt to relocate internally in Korea.
·The applicant fears the harm of not finding work or being able to support his family.
·He believes the authorities will be indifferent to his circumstances and relocation will not solve his financial problems.
In a decision dated 18 May 2017, a delegate of the Minister refused to grant protection visas to the applicants, finding that their fear of harm was for socio-economic reasons and as such did not meet s.5J of the Act, nor did it amount to significant harm for the purposes of complementary protection.
The applicants applied to the Tribunal for review of this decision on 9 June 2017, attaching a copy of the delegate’s decision to their application alongside a letter from their representative, with the same date, noting the applicant accepts he may receive an unfavourable outcome and wishes to request a Ministerial intervention.
On 29 June 2021, the applicants’ representative submitted a legal submission in which it outlined to the Tribunal that the applicants were not claiming to be persons in respect of whom Australia has protection obligations as they have a real risk of ‘severe financial hardship’ if returned to South Korea as their country of reference under s.36(2)(aa). It noted that the applicants fear severe hardship because the applicant is of retirement age, has lacked physical connection with his home country for close to 14 years and that he has no financial resources here in Australia or his home country. It also states that if the applicants have not established that Australia has protection obligations owed to them, then the applicants intend to request Ministerial intervention to personally intervene in the matter.
Attached to the submission was a statement dated 29 June 2021 stating the applicant started a [business], [company name], in 2011, but could not develop it enough to meet the eligibility for a permanent visa and that he was unsuccessful in applying for a Subclass 457 sponsored work visa when he applied in 2012 (including a review application in which the decision maker affirmed the decision not to grant him a Subclass 457 visa). The applicant claimed he applied for a protection visa because he was so afraid of the likelihood that his wife and he would fall into severe financial hardship. The applicant wrote that there was no prospect of gaining employment as his primary means of survival, that he and his wife are now [age] years of age and that they will struggle to survive in dire poverty. The applicant also claims he and his wife have lost all connections with South Korean society after 14 years in Australia; and that the prospect of establishing a business in South Korea is very slim as he does not have financial backing. The applicant also mentions that he has been working hard in Australia to pay for tuition fees of around AUD30,000 (AUD=Australian Dollars) per year for his daughter, an international student, and that he had been using his credit card with high interest rates to meet this cost.
The applicant also states the economic situation in South Korea has worsened due to Covid-19 restrictions and that his wife lives with high levels of anxiety and experiences sleeplessness about departing Australia for South Korea.
The applicants attended a hearing at the Tribunal’s Melbourne Registry on 7 July 2021 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the English and Korean languages at the hearing. The applicants were represented in relation to the review and at the Tribunal hearing by their registered migration agent.
In attendance at the hearing were the two biological daughters of the applicants, [Ms A] (DOB: [Date 1]) and [Ms B] (DOB: [Date 2]), who are currently residing in Australia. They were observers of the Tribunal’s proceedings who did not provide any oral evidence so as to provide emotional support for their parents.
At the end of the hearing, the applicants and the observers were provided with an opportunity to submit a post hearing submission, and to do so by 6 August 2021.
On 6 August 2021, the Tribunal received a number of submissions, including:
·A nine-page legal submission dated 6 August 2021;
·A copy of a medical certificate in relation to the second applicant dated 23 July 2021. It mentions the second applicant suffers from persistent severe anxiety, panic attacks in social situations and it is hard for her to go outside or stay alone;
·A letter of support from the applicants’ elder daughter dated 4 August 2021. The letter, among other things, outlines that the daughter cannot pay off her credit card debt and for the costs of living as a student, and that she suffers from lupus and irregular menstruation and her parents are constantly worried about her;
·A copy of the elder daughter’s Australian Citizenship certificate indicating she was conferred with Australian citizenship in March 2017;
·A copy of a medical certificate for the elder daughter;
·A letter of support from the applicant’s younger daughter dated 4 August 2021. The letter outlines to the Tribunal that her parents have sacrificed a lot to help with her and her sister’s education and that the family support back in Korea is limited;
·A copy of the younger daughter’s [Qualification 3] dated 27 January 2021;
·A letter of support from [Reverend C] of [Church 1] in Melbourne; and
·A letter of support from [Reverend D] and [Ms E] of [Church 2].
Also attached was a statement signed by both of the applicants. Dated 4 August 2021, it is addressed to the Tribunal. It details how the first applicant’s plans to migrate to Australia did not go to plan; that the applicants worked to pay off debt owed for his children’s education and the economic reasons the applicants are unable to return to South Korea, which includes having no finance for the cost of living in South Korea, the impact of relative age in finding another job and the prolonged period of time spent in Australia. It also mentions that the second applicant’s mental and physical health has deteriorated.
No further documents or submissions were received by the Tribunal in relation to this matter.
Non-disclosure certificates
The Departmental files in connection with this application, [Numbers], do not contain any certificates restricting or preventing disclosure of material.
Country information
There is no report about South Korea prepared by DFAT for the purposes of assessing protection claims.
The US State Department’s 2020 report on human rights practices in the Republic of Korea states in its executive summary:
The Republic of Korea (South Korea) is a constitutional democracy governed by a president and a unicameral legislature. Observers considered the presidential election in 2017 and the April 15 legislative elections free and fair. Moon Jae-in was elected president in an early election following the impeachment of former president Park Geun-hye.
The Korean National Police Agency, under the supervision of the Ministry of the Interior and Safety, is responsible for internal security over land, and the Korea Coast Guard has jurisdiction over the sea. The National Intelligence Service investigates suspected criminal activity related to national security. Civilian authorities maintained effective control over security forces, and the government utilized effective mechanisms to investigate and punish abuse of power.
Significant human rights issues included: restrictions on freedom of expression, including criminalizing the sending of leaflets and other materials into North Korea, and the existence of criminal libel laws; corruption; and laws criminalizing consensual same-sex sexual conduct between adults in the military.
The government took steps to prosecute officials who committed abuses.[1]
[1] US Department of State, 2020 Country Reports on Human Rights Practices – Republic of Korea, >
With regard to the effectiveness of State protection in South Korea more broadly, reports indicate that the State has the institutions and capacity to effectively protect its citizens. In 2020, the US Department of State reported that “There is an independent and impartial judiciary in civil matters, and there were no problems enforcing domestic court orders”. According to the same report, “Citizens had access to a court to bring lawsuits seeking damages for, or cessation of, a human rights violation”.[2] The World Justice Project’s Rule of Law Index 2020 ranks South Korea 22nd out of 128 countries for respect of “Fundamental Rights”, and 20th in respective to “Open Government”.[3]
[2] Ibid
[3] The World Justice Project 2020, Rule of Law Index 2020,
With regard to its economy, the World Bank states:[4]
The Republic of Korea has achieved remarkable success in combining rapid economic growth with significant poverty reduction. The government of Korea’s policies resulted in real gross domestic product (GDP) growth averaging 7.3% annually between 1960 and 2019. This strong performance was fueled by annual export growth of 16.0% on average from 1961–2019, while savings and investment rose to 34.7% and 29.8% of GDP respectively. As the first former aid recipient to become a member of the Development Assistance Committee (DAC) of the Organization for Economic Cooperation and Development (OECD) in 2009, Korea’s gross national income (GNI) per capita increased rapidly from US$67 in the early 1950s to over US$30,000 in 2018.
ASSESSMENT OF CLAIMS
[4] The World Bank in Republic of Korea: Overview, of nationality
The applicants claim to be South Korean nationals. Based on evidence provided to the Department by the applicants, and in the absence of any other evidence to the contrary, the Tribunal finds that the Republic of Korea is the applicants’ country of nationality and also their receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
Third country protection
The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations under s.36(3) of the Act.
Claims and findings
There are no significant or substantial reasons in which the applicants and the witnesses have invited concerns about their claims lacking credibility arising from the written, oral and documentary evidence.
Applicants’ accepted circumstances

With no discernable controversy or credibility concerns, the Tribunal accepts the first applicant was born in [Year 1] in the South Korean capital, Seoul, and that he was brought up in Gyeonggi-Do (or Gyeonggi Province) while the second applicant was born in [Year 1] in Gangwon-Do (or Gangwon Province). It also accepts they are practising Protestant Christians, that they are ethnically Korean (minjok) and that they can speak, read and write Korean.
Based on the applicants’ written and oral evidence, the Tribunal accepts the first applicant has his parents, [brothers] and a sister living in South Korea while the second applicant has [sisters] and [brothers] in South Korea.
It is also accepted the first applicant has [Qualification 1] while the second applicant has [Qualification 2]. The first applicant has largely worked in the Republic of Korea for the conglomerate, [Corporation 1], as [an Occupation 4] before migrating to Australia where he has worked variously as [Occupations 1-3] and in a [business] he owned in partnership with the second applicant.
According to the applicants’ signed statement dated 4 August 2021 as well as their oral claims at the scheduled hearing, the applicants decided to migrate to Australia in 2008 with the view to gaining permanent residency through business or sponsored work visas. However, this did not go as planned. Having been granted Subclass 163 temporary work visas in 2008, the applicants were subsequently refused Subclass 457 visas. They appealed to the Tribunal which progressed to affirm the decisions not to grant Subclass 457 visas to the applicants in May 2015. The applicants then lodged an application for protection visas in June 2015.
The applicants have consistently claimed they fear returning to South Korea on the basis of the high degree of financial hardship they will encounter which amounts to Australia owing them protection obligations.
During the hearing, considerable time was spent discussing the amount of debt the applicants had acquired, the reasons for such debt and the amount owed to people in South Korea. The purpose of this debt was to cover the cost of living and tuition fees for the applicants’ two children.
The first applicant claimed that he sold their residence in South Korea to help finance the cost of living and other expenses associated with the family’s migration to Australia. The Tribunal accepts this.
The first applicant also claimed that he borrowed the equivalent of AUD50,000 from friends back in South Korea in 2007, and that he has not repaid any of this combined amount. Neither did he advance that any interest on the principal was owed. He stated that he intends to repay the amount in small instalments by drawing down from his contributory pension fund that has accrued since his employment with [Corporation 1]. The Tribunal accepts this.
The Tribunal enquired into the amount the first applicant owed in Australia. The first applicant claimed that he had recently consolidated his credit card debts into a AUD17,000 loan with [bank] and that his repayments were AUD400 per month over 10 years.
The applicants also claimed that their eldest daughter owed AUD40,000 in tuition fees and credit card debt. They argued that their daughters were not in a position to assist them with their debts, should they return to South Korea.
As the applicants are not liable for their daughters’ debts, the Tribunal approximates that the applicants owe a combined AUD67,000. (This is more the estimate provided in the representative’s submission of AUD35,000). This is a sizeable amount; however, it is not a crippling or debilitating amount to repay by two adults earning two incomes and with access to a contributory pension scheme by installments.
Refugee status: dispositive claims
Prior to the hearing, the Tribunal received a submission from the applicants’ representative. It stated that the applicants do not claim to have a well-founded fear of persecution by way of their religion, nationality, race, political opinion or membership of a particular social group, as required by s.5J(1)(a), if the applicants were to return to South Korea, and requested the Tribunal to consider the applicants’ claims as meeting the criterion pertaining to the Act’s complementary protection provisions under s.36(2)(aa).
Having considered the protection claims advanced by the applicants, the Tribunal is unable to identify any reason mentioned under s.5J(1)(a) as the essential and significant reason for the applicants having to depart South Korea or that they will be denied protection for any of the same reasons. The applicants have advanced that upon return to South Korea they will suffer destitution as mature age workers, close to full pensionable age. While the Tribunal accepts the applicants will face a real chance of encountering difficulties and discrimination in the labour market and difficulties in repaying debts arising from their relative maturity, it does not accept the applicants’ maturity in the labour market amounts to their belonging to a particular social group.
A particular social group is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element, the element must unite them, making those who share it a cognisable group within their society.[5] It was stated in Applicant A:
The adjoining of “social” to “group” suggests that the collection of persons must be of a social character, that is to say, the collection must be cognisable as a group in society such that its members share something which unites them and sets them apart from society at large. The word “particular” in the definition merely indicates that there must be an identifiable social group such that a group can be pointed to as a particular social group. A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society.[6]
[5] Applicant A v MIEA (1997) 190 CLR 225 at 241, 264–266, 285.
[6] Applicant A v MIEA (1997) 190 CLR 225 at 241.
The Tribunal does not accept the applicants at whatever age they are, constitute a particular social group in this matter. It is their burden of debt that is the essential and significant reason for advancing these protection claims. Their age at the time of making this decision is not something so fundamental to their identity or conscience that they should be forced to renounce it or that distinguishes them from the rest of society, given ageing into pensionable age is a natural trajectory of citizens capable of earning incomes in South Korea and life in general. In short, that the applicants are mature age persons close to full pensionable age constitutes a minor or non-central motivation in facing any chances of serious harm. In this regard the applicants do not satisfy either s.5L or s.5J(1)(a) of the Act.
At no stage was there a suggestion that the applicants owed debts to or would be pursued by any illicit moneylenders, loan sharks or criminal organisations. All debts were incurred lawfully, either from friends or licensed financial institutions. It is not claimed that the monies owed to two friends back in South Korea will lead to the applicants being harmed in any unlawful sense. At the hearing, the first applicant stated he intends to repay this amount of money owed in small installments from the money in his contributory pension scheme fund. The applicants did express a fear that the police could arrest them for not repaying such significant amounts. However, should this eventuate the Tribunal anticipates that one or both of the applicants would face civil and not criminal proceedings.
Furthermore, the Tribunal finds, in this instance, such foreseeable litigation would not be persecutory as it cannot be distinguished from punishment for a common law offence and because refugees are victims or potential victims of injustice, not fugitives from justice.[7] This is known as the law of general application which is consistent with Australian law and the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook).
[7] UNHCR, 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 (UNHCR, re-issued February 2019) (Handbook) at [56].
Accordingly, the Tribunal makes the finding that the applicants neither hold a well-founded fear of persecution nor a real risk of significant harm based on outstanding debts owed to any criminal elements in the Republic of Korea, should they return to their country of reference in the reasonably foreseeable future.
Although the Tribunal accepts the applicants have a real chance of encountering difficulties and challenges in repaying debts if they were to return to South Korea, it has not considered this real chance of harm amounts to serious harm, as they do not satisfy s.5J(1)(a).
Taking all these aspects into account, the Tribunal accordingly finds that they do not face a real chance of serious harm, now and in the reasonably foreseeable future, for any reason. The applicants’ fears of persecution are not well-founded for any of the reasons mentioned in s.5J(1)(a), (b) or (c) or s.5H if they are returned to the Republic of Korea, and they do not satisfy the criterion in s.36(2)(a).
Complementary protection provisions: dispositive claims
The first applicant’s post hearing statement outlines his fears:
So, if I have to go back to South Korea now, it goes without saying that a basic life itself will not be achievable as in Australia. I have no fiances for the cost of living for food, clothing, and shelter. Unlike Australia, in South Korea, when people are in their late 50’s or over 60, retirement is a natural phenomenon, and it is almost impossible to find another job. So, at my age, peple run a business to survive, But in my case, I do not have any living expenses for food, clothing, and shelter, so starting a business is unthinkable, I have some experience in [business] in Australia, But such business opportunity is only given through friends of a big business or relatives. As I have been away from South Korea for the last 15 years, I have no such opportunity coming. In South Korea, there is no such business as [the business] in which I have gained experienced in Australia. …
The Tribunal has accepted there are difficulties and challenges in meeting repayments of debts that the applicants owe while seeking to re-establish themselves to mitigate against and avoid significant financial hardship and mental health conditions.
In this regard, there are substantial grounds for the Tribunal to believe that the applicants, as a necessary and foreseeable consequence of being removed from Australia to South Korea, face a real risk of harm arising from their accepted economic circumstances combined with health concerns.
The key issue to determine is whether this real risk of harm amounts to significant harm as required by s.36(2A)(a)–(e).
Significant harm is different from the concept of serious harm as required by s.91R(1)(b)/s.5J(4)(b) in the context of s.36(2)(a).[8]
[8] In MZZIA v MIBP [2014] FCCA 717 (Judge Riethmuller, 16 April 2014) the Court observed that there is a significant overlap in the meaning of the two terms, e.g. a risk of being killed is sufficient to fulfil both: at [34].
The Tribunal does not accept the applicants face a real risk of those challenges amounting to significant harm as required by s.36(2A)(a), (b) or (c) as there is no suggestion that the death penalty will be carried out on them, or that they will be arbitrarily deprived of their lives or that they will be subjected to torture.
While the Tribunal acknowledges the applicants will face difficulties and challenges arising from finding work to support themselves and be required to pay down debts, the Tribunal assesses the amount not to be at a crippling or considerable level, if removed from Australia to their country of reference.
It is accepted the applicants are at an age of relative maturity, but they have not reached full pensionable age. As mature age workers in the South Korean labour market, the Tribunal accepts they may face challenges in finding employment. In 2018, the Organisation for Economic Cooperation and Development (OECD) states that on the one hand, South Korea will experience much faster population ageing than any other OECD country. The old age dependency ratio (population aged 65+ to population aged 15–64) for example is projected to increase from 20 per cent to around 70 per cent in 2050. On the other hand, employment rates of older workers are already very high: in the age group 65–69, for example, 45 per cent of all Koreans work compared with an OECD average of 25 per cent. The same report acknowledged most older people in Korea end up in poor-quality jobs after ending their core career in their early 50s.[9]
[9] ‘Working Better with Age: Korea’, Aged and Employment Policies: OECD, 24 October 2018, https:// >
The applicants have consistently stated they fear there is societal discrimination in employing jobseekers over 60. The Tribunal accepts there is some societal discrimination towards mature age workers. However, the Tribunal notes that the applicants have owned and been operating a [business] for many years in Australia. That business has provided sufficient income for the applicants to meet the cost of living and repay some of their outstanding debts. It strongly indicates they have the capacity and motivation to either find work as mature age jobseekers or create an income through a small enterprise, should they return to South Korea. The Tribunal does not accept the degree of age discrimination to be encountered in South Korea amounts to their facing a real risk of significant harm.
According to the OECD in 2018, the pension age in South Korea is 62 with at least 10 years of contributions. A reduced early pension can be withdrawn from the age of 57 years. The normal pension age is gradually being increased reaching 65 from 2033 and the early pension age is also increasing to 60 years by 2033. Eligible households receive different levels of support for living, medical, housing and education expenses, depending on their characteristics and circumstances. There are six forms of benefits: livelihood benefit, medical benefit, housing benefit, education benefit, childbirth benefit, funeral benefit.
During the hearing, the first applicant indicated that he is eligible for a reduced early pension from the contribution he made prior to departing Australia. Indeed, he suggested drawing down from this pension would assist him to repay outstanding debts. The evidence before the Tribunal is that the applicant is not eligible to South Korea’s full pension scheme. However the applicants will have access to a sophisticated labour market in which they can find work or establish a business in order to generate income for themselves and their outstanding debts for the reasonably foreseeable future. In this regard the Tribunal notes that the average monthly income in South Korea is the equivalent of approximately AUD3,200.[10] (Australia’s average monthly earning is approximately AUD3,600 indicating both countries are relatively high-income earning countries.)[11] The Tribunal does not accept the applicants will be unable to find any work or small business opportunities in South Korea or that their opportunities will be restricted any more than any other mature age person in that country, and pay down debts owing.
[10] >
The Tribunal has also had regard to the applicants having family and community support, should they return to South Korea. During the hearing and in the post hearing submission, the applicants have argued that their immediate relatives in South Korea are aged and pre-occupied with helping their own immediate families. The Tribunal accepts the applicants’ brothers and sisters are generally older and frailer. However, there are nephews and nieces in South Korea who can assist. The Tribunal does not accept they will be denied sufficient material and emotional support by family members in South Korea to assist them in finding short-term accommodation on return and other support as the applicants re-establish themselves in their country of origin for the longer term. Nor does it accept they have no financial capacity at all to assist them or that that they would be denied support from congregants belonging to their church back in South Korea, who can offer assistance and guidance, just as they have in Australia.
During the hearing, the applicants attempted to advance that there would be a substantial adverse impact of returning to the Republic of Korea due to Covid-19 restrictions. Firstly, it was claimed that the economy of South Korea was so adversely affected they would not be able to find work – a problem compounded by their relative age. Available country information does not support this. A 29 January 2021 report in Forbes indicates the South Korean economy, the fourth biggest in Asia, contracted by 1 per cent in 2020 – representing one of the best performances by an OECD country amid a pandemic.[12] This strongly indicates that there is no significant economic dislocation in the applicants’ country of nationality that would represent a real chance of economic destitution. Secondly, it was argued that the applicants would have to pay for quarantining costs for returnees and visitors to South Korea. Available country information from the US Embassy of South Korea which was updated on 13 August 2021 (and other sources) states that South Korean government has mandated visitors upon entering South Korea will need to quarantine for 14 days at government designated facilities at their own expense. However, there are exemptions for those who were vaccinated in South Korea, Korean nationals and longer term foreign visitors with, for example, Korean Residence, who can quarantine at residential addresses.[13] This strongly indicates that, as Korean nationals, the applicants will be able to make arrangements to avoid paying the expenses at a government facility for quarantining on return, and will, thereby, avoid any real risk of significant harm arising from economic impact of Covid-19 restrictions on them. Moreover, the applicants should have some confidence that South Korea’s restrictions have been relatively successful in a global context.
[12] ‘ South Korea Shows OECD How It’s Done in Covid-19 Era’ by William Peske, Forbes online, 29 January 2021. Covid-19 Information, US Embassy & Consulate in the Republic of Korea,. ‘’South Korea Travel Restrictions’ Kayak travel, >
By 1 May 2021, South Korea had confirmed 123,240 cases with 1,833 deaths. While significant, these numbers are low on an internationally comparable per capita basis.[14] The authorities in South Korea hope to achieve herd immunity through vaccination by the end of the year. This should be a source of some confidence for the applicants in returning to their country of nationality whereby they do not face a real risk of significant harm from significant financial hardship or being denied a livelihood.
[14] ‘South Korea aims for a post-Covid comeback, hopes to achieve herd immunity’ by Weizhen Tan, CNBC newsonline, 28 June 2021, type="1">
The applicants have also mentioned that the second applicant suffers several health conditions which will contribute to their financial hardship should they return to South Korea. The evidence is limited to a short medical certificate and with no psychological or psychiatric assessments. It is vaguely claimed that the second applicant suffers from persistent severe anxiety, experiences panic attacks in social situations and that it is hard for her to go outside or stay alone at home. Despite the paucity of medical and psychological evidence, the first applicant further claimed the second applicant also has sleep problems and heartache over having to return to South Korea. The Tribunal notes that the submitted medical evidence includes ongoing support and close monitoring in order to prevent further progress and risk to herself. There is no evidence of the second applicant being referred to ongoing counselling or being prescribed pharmaceuticals to address her mental health concerns. Furthermore, the second applicant, despite being observed to have panic attacks in social situations, works with her husband in a [business] on a regular basis. Indeed, the second applicant was asked at the hearing whether she has any disabilities, to which she answered “no” and further added she worked on a full-time basis with her husband in their shared [business]. The Tribunal accepts that the second applicant experiences panic attacks, lack of sleep and worry about her migration status as well as the levels of debt she and her husband have accrued. However, there is no evidence before the Tribunal that the mental health conditions can reasonably be characterised as being so severe, debilitating or even considerable that she could not return to South Korea, where she can both work and access support from that country’s mental health system. South Korea has state-funded mental health services, the majority of which are inpatient hospital facilities. The Tribunal accepts that mental health spending in South Korea is inadequate and not comparable to Australia’s relatively generous spending. The lifetime prevalence rate for mental diseases in Korea is reported at 27.6 per cent, meaning three out of 10 adults experience mental illness more than once throughout their lifetime. Total medical expenses related to mental diseases was USD1.05 billion as of 2013, accounting for about 3.4 per cent of total medical expenses within the same year.[15] Nonetheless, the second applicant has the support of her husband and other family members to assist her and to ensure she accesses timely support, should the applicants return to South Korea in the reasonably foreseeable future. Overall, the evidence is that both applicants have the capacity and motivation to work on a full-time basis, despite the challenges relating to their age and mental health, if they return to South Korea.
[15] Roh, S., Lee, SU., Soh, M. et al. ‘Mental health services and R&D in South Korea’, Int J Ment Health Syst 10, 45 (2016). >
The Tribunal also notes a thread of argument that since the applicants have departed in 2007, their country of reference has changed considerably in language and technology. While no developed country can remain static, the Tribunal does not accept South Korea has changed so much over a relatively short amount of time that the vast majority of the country does not continue to share the same language and customs as the applicants or that there are discernable changes of the economic and social fabric whereby the applicants will be estranged from or significant disadvantaged compared to their compatriots. The Tribunal places very little weight on this claim that the applicants will face a real risk of significant harm based on their dispositive claims, cumulatively considered.
Taking all the accepted circumstances outlined above into account, the Tribunal does not accept the applicants will face a real risk of significant harm in the form of significant financial hardship and mental anguish on the basis of the second applicant’s mental health conditions whose symptoms the Tribunal has found do not amount to being severe, debilitating or considerable. That is not to say the applicants will not experience a real risk of such harm. However, it does not accept the harm amounts to significant harm. The Tribunal notes that neither of the applicants will be denied any available mental health services for any reason. It does not accept the harm amounts to being cruel or inhuman or degrading treatment or punishment. It does not accept the harm will entail an act or an omission to cause the pain or suffering that will be intentionally inflicted or that treatment or punishment is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights. Neither does the Tribunal accept the applicants will face a real risk of degrading treatment or punishment as the harm does not amount to extreme humiliation as required by s.5 of the Act, should they return to their country of reference. Having considered the applicants’ mental health and economic circumstances, the Tribunal accepts the applicants face a range of difficulties and challenges in returning to their country of reference. Even when considering the cumulative impact of their age, their debt and their health in the context of the available country information about South Korea’s economy, its government’s response to Covid-19 and mental health system, the harm to be encountered by the applicants does not amount to cruel or inhuman treatment or punishment, as required by s.36(2A)(e).
They have not provided compelling evidence that they will be forced to live with the minimum of rights and dignity that would amount to degrading treatment or punishment. There is no intention to humiliate or debase the applicants by the operation of South Korea’s social and health services, the governance of its market economy to drive the applicants to act against their will or conscience. The kind of loss of face or guilt or embarrassment the applicants fear in returning to South Korea does not amount to extreme humiliation. In this way the applicants do not satisfy s.36(2A)(e).
For completeness, the Tribunal also makes a finding that the applicants face a risk of being lawfully charged and compelled to repay debts to two South Korean friends from whom the applicants borrowed money in 2007. However, the Tribunal does not anticipate the applicants face a real risk of being criminally liable leading to significant harm. Although meeting repayments will be challenging and even onerous in the context of their challenges with the cost of living and mental health care, it still does not amount to being significant harm as required by any of the subsections of s.36(2A), as a necessary and foreseeable consequence of being removed from Australia to their country of reference.
Having assessed all of the applicants’ claims about mental health and economic circumstances, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to the Republic of Korea there is a real risk of significant harm, including the applicants will suffer harm by way of being arbitrarily deprived of their lives; the death penalty will be carried out on them; they will be subjected to torture; they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment, pursuant to s.36(2)(aa) of the Act.
Being separated from the applicants’ adult children
The Tribunal accepts the daughters of the applicants have several health challenges that have been diagnosed and treated on an ongoing basis. It also accepts they have acquired some debts through credit cards since living in Australia. The Tribunal also notes the diseases mentioned in the submissions are not so serious or debilitating that the daughters of the applicants are unable to work and study.
The applicants, along with their daughters, have claimed that the parents will be separated from their children who face the daunting task of taking care of physical health conditions.
Both the applicants’ adult children are South Korean citizens. No reasons have been advanced as to why these well-educated children could not return to South Korea which has a first-rate health system. Nor have they advanced any reasons they could not return to South Korea to assist themselves and their parents financially. The Tribunal accepts that the applicants will face a real chance of harm and a real risk of harm of being separated from them and that the harm is caused by worrying about health conditions that occur through natural causes. This would be expected whether the applicants and their adult children reside in South Korea or Australia. However, the applicants’ adult daughters have been accessing and will continue to access diagnosis and treatments through Australia’s health system. In the case of the elder daughter, she has access to Medicare and other publicly funded health care services. There is no suggestion their daughters will be denied health care in Australia, albeit the affordability will be different between the two children. That the applicants’ children have access to Australia’s relatively strong health care system should be a source of some comfort to the applicants which should make their return to South Korea less daunting. Relatedly, the Tribunal accepts that the applicants will continue to worry about the levels of debt their children have personally acquired (from licensed lenders and not loan sharks or criminal syndicates) should they return to South Korea. This is a natural and understandable parental reaction. However, their children are adults and responsible for their own creditworthiness and are legally bound as adults to repay any debts incurred. The debts incurred by the daughters can be reasonably characterised as sizeable but manageable. They can seek out financial counselling and rearrange their debt repayments while they work. While the younger daughter is working, she also has a [Qualification 3] and she and her sister are in a position to pool their resources to reschedule or repay their lawfully acquired debts. Indeed, the daughters of the applicants appear to be well placed to not overly rely on their mature aged parents’ labour and guile to support them whereby it is burdensome to them, should they return to South Korea.
The Refugees Convention – and by extension, the operation of s.36(2)(a) – is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality.
The Tribunal is not satisfied that the applicants’ overall set of circumstances amounts to any nexus reason and it does not accept the applicants have any membership of a particular social group as parents separated from their adult children, even when considering accepted circumstances in combination with an accepted nexus reason which the Tribunal has made a finding that the applicants do not have. There is no systematic and discriminatory conduct towards the applicants on behalf of the State or other actors in this regard. For this reason, the Tribunal finds that the applicants do not have a well-founded fear of persecution on the basis of being separated or estranged parents from their adult children if they return to the Republic of Korea, as this basis does not amount to being one of the five nexus reasons outlined in s.5J(1)(a).
In this regard, the applicants do not satisfy s.36(2)(a).
With regards to the Act’s complementary protection provisions, the Tribunal has considered SZRSN v MIAC [2013] FCA 751 in which the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A). The Court upheld the reasoning of the Federal Magistrate at first instance, which turned on the relationship between various aspects of the complementary protection provisions. Firstly, the Court had regard to the reference in s.36(2)(aa) to Australia’s ‘protection obligations’ as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought. Secondly, the Court reasoned that the qualifications in s.36(2B) expressly refer to harm ‘in a country’ which is necessarily the receiving country if the circumstances of ss.36(2B)(a) (relocation) and 36(2B)(b) (protection from an authority) are to have any application.
Further, the Court noted the circularity in the operation of s.36(2)(aa) were harm to arise from the actual act of removal itself. Section 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.
Lastly, the Court in SZRSN v MIBP had regard to the ‘intention’ requirements in the s.5(1) definition of degrading treatment or punishment. The Court reasoned that separation from family (in that case, two adult children) is the consequence of removal, and a consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention to cause extreme humiliation that is unreasonable. Although the Court in SZRSN was largely focusing on degrading treatment or punishment, by implication its reasoning is equally applicable to the other types of significant harm in s.36(2A). As such, it appears that although the risk of significant harm envisaged by s.36(2)(aa) must arise as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, s.36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.
For the reasons given, the Tribunal is not satisfied that the applicants face a real risk of significant harm for the purpose of the complementary protection criterion as a result of being separated from their adult children as their biological parents, as a necessary and foreseeable consequence of the applicants being removed from Australia to South Korea.
Cumulative findings
There are no more residual claims to consider in this application for review.
Based on the applicants’ accepted circumstances and having assessed all of the applicants’ claims, both individually and cumulatively, the Tribunal finds that they do not face a real chance of serious harm, now and in the reasonably foreseeable future, for any reason. The applicants’ fears of persecution are not well-founded for any of the reasons mentioned in s.5J(1)(a), (b) or (c) or s.5H if they are returned to the Republic of Korea, and they do not satisfy the criterion in s.36(2)(a).
Having assessed all of the applicants’ claims, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to the Republic of Korea there is a real risk of significant harm, including the applicants will suffer harm by way of being arbitrarily deprived of their lives; the death penalty will be carried out on them; they will be subjected to torture; they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment, pursuant to s.36(2)(aa) of the Act.
Ministerial intervention
The applicants have indicated to the Tribunal that they intend to make a request for the Minister to personally intervene under s.417 of Act. They have also requested the Tribunal to support this request.
Noting that one of the applicant’s children is an Australian citizen, the Tribunal has identified one of the guidelines as the basis for referring this matter to the Minister under the auspices of s.417 of the Act:
strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
However, on this occasion, the Tribunal has declined to support such a request.
Conclusion
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Brendan Darcy
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.
…

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Citations

1712252 (Refugee) [2021] AATA 4374

Cases Citing This Decision

Cases Cited

Statutory Material Cited

MZZIA v MIBP [2014] FCCA 717

SZRSN v MIAC [2013] FCA 751

Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4

[2021] AATA 4374

18 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal