1720581 (Refugee)

The applicants, Mr. A and his spouse, sought protection visas on complementary protection grounds. The dispute concerned whether they faced a real risk of significant harm if returned to the Republic of Korea. The matter was before the Administrative Appeals Tribunal for review following a remittal from the Federal Circuit Court.

The primary legal issue before the Tribunal was whether the applicants were entitled to protection visas under section 36(2)(aa) of the Migration Act 1958 (Cth) on complementary protection grounds. The applicants acknowledged they were not pursuing claims for Convention-related persecution under section 36(2)(a), with Mr. A explicitly stating he did not fear such persecution in the foreseeable future.

The Tribunal considered Mr. A's claim of involvement in the 1980 Kwangju uprising, which he initially cited as a reason for his distress. However, the Tribunal noted independent evidence indicating the uprising occurred approximately a decade before the applicants arrived in Australia and that the South Korean government had since repudiated the crackdown. Crucially, Mr. A later clarified that he had no direct role in the uprising and that his business had suffered due to the general economic downturn in Korea following the event. He stated his decision to come to Australia was driven by a long-held desire to live and raise a family in a better place, not by a direct link to the Kwangju incident or socio-political upheaval. The Tribunal found no real risk of significant harm to the applicants if returned to South Korea.

The Tribunal affirmed the decision not to grant the applicants protection visas. The applicants indicated that should their review application be unsuccessful, they would request ministerial intervention in the interests of their thirteen Australian children and grandchildren.