1720581 (Refugee)

[2017] AATA 3170

1720581 (Refugee) [2017] AATA 3170 (8 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1720581

COUNTRY OF REFERENCE:                  Korea, Republic Of

MEMBER:Luke Hardy

DATE:8 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 08 November 2017 at 4:04pm

CATCHWORDS
Refugee – Protection visa – Republic of Korea – Complementary protection grounds – Federal Circuit Court remittal – Initial protection visa lodged in 1993 – Remained unlawfully – Initially claimed involvement in Kwangju uprising – Economic and emotional reasons – Majority of children and grandchildren in Australia – No real risk of significant harm  – Requested ministerial intervention – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 48A, 65
Migration Regulations 1994, Schedule 2

CASES

SZGIZ v MIAC (2013) 212 FCR 235

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are husband and wife. They are both citizens of the Republic of Korea (South Korea/Korea). They entered Australia on transitional (temporary) (Class UA) visas (akin to visitor visas) valid to 21 February 1991; they overstayed. They lodged a protection visa application on 20 December 1993 with [Mr A] as the main applicant and [Ms B] included as a member of his family unit, making no claims of her own (a “Part D” applicant). The application was unsuccessful at the primary stage and on review. (See Refugee Review Tribunal case number N94/04377.)

3. On 29 June 1995 [Ms B] lodged a protection visa application including [Mr A] as a “Part D” applicant. The minister’s delegate refused the application and the Refugee Review Tribunal found it had no jurisdiction to review it.

4. The applicants did not depart Australia. Having exhausted the protection visa stream at the time there was no other substantive visa for which they could apply. The applicants unsuccessfully requested Ministerial intervention. They joined and withdrew from a class action in the High Court. From 18 July 2003 to 1 August 2012, the applicants remained in Australia unlawfully. 

5. From 24 March 2012, the Migration Amendment (Complementary Protection) Act 2011 amended the Migration Act 1958 to introduce a new criterion to allow for the grant of a Protection visa in situations that engage complementary protection obligations. Since then, protection visa applicants have first been assessed to determine if they are refugees under the Refugees Convention and relevant Australian law. If they are not found to be refugees, their claims have then been considered under complementary protection criteria.

6. Relevant to the current application, s. 48A of the Act imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. However, the Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa.

7. In light of SZGIZ, the applicants lodged a fresh present protection visa application on 16 April 2014. In this present protection visa application, [Ms B] is included as a “Part D” applicant, the success of her application depending on the success of [Mr A]’s. The Minister’s delegate refused the application on 16 December 2014. The applicants subsequently sought review by the Refugee Review Tribunal which merged into the MRD of the AAT on 1 July 2015.

8. The delegate purported to determine the application on refugee grounds as well as on complementary protection grounds. Applying the reasoning in SZGIZ v MIAC (2013) 212 FCR 235, the Tribunal finds that it does not have power to consider the Refugee Convention criterion in s.36(2)(a), and has proceeded on the basis that it can only consider the applicant’s claims under the complementary protection provisions in s.36(2)(aa) of the Act.

9. When they lodged their protection visa application on 16 April 2014, the applicants applied for Protection (Class XA) visas.

10. The applicants appeared before the Tribunal on 27 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. The applicants were accompanied at the hearing by their son who assisted in representing them in relation to the review.

11. The Tribunal made a review decision in this matter on 27 May 2016. The applicants then sought judicial review in the Federal Circuit Court which, on 30 August 2017, issued consent orders for the matter to be remitted to the Tribunal for reconsideration according to law.

12. The reason for the remittal was that the Tribunal wrongly identified the class of protection visa for which the applicants were eligible to apply. As far as the Tribunal can establish, this happened due an error either in case data entry or in the process of electronically generating the decision  template in which to record the Tribunal’s findings on the facts. The Tribunal understands that the applicants originally applied for Class XA protection visas and were entitled to do so at the time of application.

13. The applicants re-appeared before the Tribunal on 27 May 2016 to discuss the jurisdictional error, and to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. The applicants were again accompanied at the hearing by their son who assisted in representing them in relation to the review; however, he was sworn in as a witness when it became apparent that he wished to introduce facts at the hearing that he felt were relevant to his parents’ situation.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The main issue in this case is whether the applicants are entitled to protection visas under s.36(2)(aa), i.e., on complementary protection grounds. The applicants indicated that they understand that they are not able to have their claims re-considered as refugee claims under s.36(2)(a); in any event, [Mr A] made it clear at the first Tribunal hearing that he does not fear Convention-related persecution in South Korea in the reasonably foreseeable future.

15. For the following reasons, I have concluded that the decision under review should be affirmed.

16. In a statement attached to his current protection visa application, lodged on 16 April 2014, [Mr A] claimed that he had had some involvement in the notorious 18 May 1980 Kwangju uprising that was violently put down by Korean authorities. He claimed the episode had left him with disturbing memories. Independent evidence indicates that this took place around a decade before the applicants first came to Australia, and that the South Korean government has long since repudiated the crackdown the annually honours civilians who died at the hands of the former military regime that crushed the original demonstrations.[1]

    [1] “The Kwangju Uprising and American Hypocrisy: One Reporter’s Quest for Truth and Justice in Korea”, The Nation, 5 June 2015,

17. At the previous Tribunal hearing, however, [Mr A] was unable to say accurately when the uprising had occurred. He indicated that this was because he had played, in fact, no role at all in the uprising and had only suffered very generally and indirectly from it: the overall economic situation in Korea declined in the socio-political wake of the crackdown and his and other individuals’ small businesses foundered economically and eventually failed. He said he was trying to expand his business when the Kwangju demonstrations occurred and found himself damagingly exposed in the negatively affected business market that followed. He indicated that he did not mean to suggest there had been any direct link between the Kwangju incident and his decision to come to Australia and stay here. He said his case had no real, let alone causal, relationship with the socio-political upheaval of Kwangju. He said he never lived in or near Kwangju. He said he just lived in “those times” and he indicated very clearly that they were difficult for Koreans generally. He said that the first Tribunal hearing that he came here on a kind of visitor visa so that he could look around at work and business opportunities here. He said he had always dreamed since he was very young of growing up and being able to live and raise a family in a better place. He said that whereas Korea is prosperous now he would not be able to benefit from this because he has been out of society there for too long.

18. At the most recent Tribunal hearing, [Mr A] said he was not even in Kwangju in the time around the uprising as he was in Seoul trying to grow his business. He essentially said that the Kwangju episode is no longer relevant to his overall concerns about returning to Korea.

19. At the previous Tribunal hearing, I discussed with the applicants in some detail the criteria for protection visas under s.36(2)(aa). The detail of this discussion, including the exhaustive definitions of “significant harm under s.36 and s.5(1) of the Act, along with some detailed attention to the relevance of intentional infliction of harm in several of the definitions, is easily accessible via the electronic record of the hearing. In summary, I explained that in order for them to meet s.36(2)(aa), I must have 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 that they will suffer significant harm.

20. Relevant to this, 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).

21. As noted, “significant harm” for these purposes is exhaustively defined in s.36(2A) and 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. (Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.)

22. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and “torture”, are further defined in s.5(1) of the Act. 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.

23. 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.

24. At the previous Tribunal hearing, [Mr A] was quite clear about not meeting any of the criteria relevant to determinations under s.36(2)(aa). He said in effect that the essential and significant factor in his leaving and remaining outside of Korea was economic; he added that it has also become emotional.

25. [Ms B] asked me at the previous Tribunal hearing to consider that requiring her and her husband to return to Korea with so little, after so long in Australia with their family, would be akin to leaving them to die, as they have no pension in Korea and no support there. She said they have a daughter who is married and according to tradition must look after her husband’s parents not her own. She and [Mr A] said that the financial support they receive from their adult children in Australia might not be sufficient to sustain them in South Korea. [Ms B] said that she feels better that she and [Mr A] can help with the raising of their Australian grandchildren in exchange for some financial support, rather than merely being the recipients of family charity. [Mr A] claimed he is still adept as a [tradesman], which has been his trade since he was young.

26. Overall, at the previous Tribunal hearing, the applicants cited social and emotional factors for wanting to remain in Australia with their children, grandchildren and local parish. They argued that they have made and continue to make a significant social and emotional contribution to their family – all Australian citizens -- in Australia.

27. At the most recent Tribunal hearing, I asked the applicants if there are any additional facts that they wished to have me consider. In response, they told me that they now have an additional grandchild who they would miss in the event of removal to South Korea. Their son also said that the applicants’ migration agent had sought judicial review in this matter due to a perceived failure on the Tribunal’s part to consider supporting letters and other material that had been submitted in connection with their application.

28. I acknowledged at the most recent hearing that there are indeed some letters of support[2] on the Department’s file relating to the applicant’s bonds with family members in Australia. I stated to the applicants and to their son that I had generally accepted that their claimed attachment to family members in Australia and their fears about economic and social hardship had generally been accepted as fact. [Ms B] said she would feel trauma were she required to leave her grandchildren behind in Australia, notwithstanding that five of them live far from [them] in [another city].

    [2] In fact, the letters and photographs referred to here were not in the file prior to the Tribunal’s 27 May 2016 decision; they were submitted to the Department after the date of the Tribunal’s decision, as support for a request on their part for s.417 Ministerial intervention. I have not been able to find any material that the applicants suggest their former adviser was talking about, although I do accept that they have genuine emotional bonds with family in Australia and genuine fears about how they might manage to manage day-to-day life and health in Korea.

29. Again, I went through the five forms of “significant harm” exhaustively defined in the Migrating Act. The applicants both said they do not claim that the disaffection they might experience in the event of removal to Korea would rise to the level of “significant harm” as defined in the Act.

30. The applicant’s son raised concerns that the prospect of separation from the family in Australia might exacerbate his mother’s health issues. He also expressed concern that if his mother returns to Korea, she will be disadvantaged due to the fact that all of her medical records for the past 20 years, including all records of her current age-related health issues, reside in Australia. He said this would impact on the ability to attend to her heath in Korea. He did not, however, identify any element of an intentional infliction of harm in making these points.

31. I have further considered the applicants’ claims separately and cumulatively. I am not satisfied that the problems they raise, and the reasons they give for not being removed to South Korea, involve harm sufficient to be regarded as “significant harm” for the purposes of the Act.

32. Having considered all of the evince before me in its entirety, I am not satisfied that I have 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 that they will suffer significant harm.

33. Accordingly, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

34. For the reasons given above the Tribunal is not satisfied that any 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). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    REQUEST FOR S.417 MINISTERIAL INTERVENTION

35. The applicants have indicated that in the event of an unsuccessful review application, they would like the Minister to intervene in the interests of the Australian children and grandchildren in their family, now thirteen persons in all.

    DECISION

36. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Luke Hardy
    Member