1729381 (Refugee)

1729381 (Refugee) [2023] AATA 2441 (24 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Angela Dwyer
CASE NUMBER: 1729381

COUNTRY OF REFERENCE: Korea, Republic Of
MEMBER:Tamara Hamilton-Noy
DATE:24 May 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 24 May 2023 at 8:31am
CATCHWORDS
REFUGEE – protection visa – South Korea – particular social group – arranged marriage – family violence – single women – women with severe mental health issues – delay in applying for protection – return visit to South Korea – employment – complementary protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
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
Background

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant first arrived in Australia [in] March 2005 on a [student] visa. She departed Australia [in] January 2006.
The applicant arrived in Australia on a temporary working holiday visa [in] August 2010 and this was extended [in] June 2011. [In] September 2012, she was granted a [student] visa and this visa ceased [in] September 2014. She remained in Australia without a visa between [September] 2014 and [September] 2017.
On 14 September 2017 the applicant was placed in immigration detention.
The applicant lodged an application for a protection visa on 28 September 2017, on the basis that she feared returning to South Korea because her family had arranged a marriage for her and she had experienced family violence at the hands of her father.
The applicant was granted a bridging visa and released from detention on 23 October 2017.
On 2 November 2017, a delegate of the Department found the applicant was not owed protection on the basis that they did not accept the applicant fears harm from her father or any other person and therefore did not accept that she meets the definition of a refugee or is owed complementary protection.
The applicant appeared before the Tribunal on 26 April 2023 to give evidence and present arguments. The applicant was represented in relation to the review.
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 (Cth) (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-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.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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Assessment, reasons and findings
The issue in this case is whether the applicant is owed protection under s 36(2)(a), (aa), (b) or (c), that is, whether she is a ‘refugee’ or is owed complementary protection, or is a member of the same family unit as such a person. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country of nationality
The applicant travelled to Australia on a South Korean passport and has at all times maintained she is a citizen of South Korea. The Tribunal accepts the applicant is a South Korean national and has assessed her claims against South Korea as her country of nationality.
The applicant’s background
At the time of the hearing, the Tribunal had before it statements made by the applicant in October 2017 and March 2023, in addition to submissions and other documents provided by the applicant’s representative, which are referred to further below.
The applicant has consistently claimed to have been born and lived in Ulsan Metropolitan City. The applicant states that she has [specified family members], that she has never been married and that she has no children. The applicant states that her mother and father are divorced and that her father now lives in another city an hour away from the applicant’s mother and siblings.
The applicant claims to have trained as [an occupation 1] in South Korea and to have completed English and [other occupational] training in Australia. The applicant claims to have worked as [an occupation 1] when she returned to South Korea between 2006 and 2010. The applicant gave evidence that she is currently working part-time since obtaining a bridging visa that allows her to find employment.
The Tribunal accepts the above information to be true.
Health conditions
The Tribunal was provided a report prepared by the applicant’s treating psychiatrist, dated 12 June 2019, which states that the applicant was receiving follow-up care from the community mental health service he is attached to, following an admission to hospital for a two-month period in June 2018. The applicant was subsequently admitted to a [rehabilitation centre] for a further four weeks and, since then, had attended for appointments and treatment with the community mental health service.
The applicant gave evidence to the Tribunal at hearing that she has been diagnosed with bipolar affective disorder and is currently taking antipsychotic medication and mood stabiliser medication and that she has been prescribed medication since being in immigration detention in 2017. She gave evidence that she had a second hospital admission in 2019. She told the Tribunal that she is linked in with a community mental health clinic, through which she accesses a case manager and a doctor who manages her medication.
The applicant gave evidence at hearing that she had not had a stable place to stay from 2018 onwards, when she had accommodation arranged for her through someone she met at church. She described that, when she was mentally unwell one day, she was removed from the accommodation and then spent time on couches and on the street, in hostels, and at other people’s homes for a few nights at a time. The applicant stated that, while she was currently renting a unit, she was returning to hospital the day following the Tribunal hearing and had had concerns about her neighbour and was unwilling to return to her accommodation.
The applicant gave evidence that she had not been given ‘work rights’ until recently and that she is currently working a couple of hours at a time, and that this is impacted by the side effects of her medication. She gave evidence that she is reliant on accessing a food bank and food offered through a local café so that she is able to pay her rent, and that she has been accessing second hand clothing stores for her clothing.
The applicant also gave evidence at hearing that she was diagnosed with [medical condition 1] and has been taking [a specified medication] since October 2020, which is a five-year course of medication.
The Tribunal accepted the above evidence as correct.
Refugee claims
Given the presentation of the applicant at hearing and having regard to the medical evidence before it and the submissions of the applicant’s representative, the Tribunal accepted that the applicant is a vulnerable applicant. The Tribunal conducted the hearing and has assessed the applicant’s evidence having regard to the Migration and Refugee Division’s Guidelines on Vulnerable Persons.
The applicant’s representative submits the applicant fears harm from her estranged father and individuals he may engage to harm her, harm from other male members of the South Korean community, ongoing cumulative serious discrimination and stigmatisation and severe deterioration of her mental health. The applicant’s representative submits that the applicant fears harm for reasons of her membership of the particular social groups of single women in South Korea and women with severe mental health issues.
The applicant claims to have experienced family violence from her father in the form of significant physical and emotional abuse. She has provided two statements in support of her claims, both of which outline the details of the claimed violence perpetrated against her and other family members by her father. The Tribunal has listened to the recording of the delegate interview and notes that the applicant outlined experiences at the hands of her father to the delegate that were consistent with her written claims.
The applicant has provided a letter from her treating psychiatrist, referred to above, that also outlines family violence described to the psychiatrist, which is also consistent with the applicant’s written claims and with the information she provided to the delegate at interview, and which links the trauma history she has experienced to her later mental health concerns. This letter states that the applicant had described to the psychiatrist a lifetime of family violence at the hands of her father which had included bashings, and throwing chairs and objects at family members, including herself, her mother and her [sisters]. The applicant had described to her psychiatrist having received significant injuries and her mother having borne the brunt of the violence. The applicant had described instances of being chased around the house by her father and bashed with objects, being hit on the head, bleeding from her scalp, having scars on her face, and the violence increasing over time. The applicant described having been significantly assaulted again in August 2010 and that she had decided to leave South Korea again for her safety. The psychiatrist referred to the applicant’s sisters needing to relocate on several occasions to protect themselves from their father.
The treating psychiatrist stated that the abuse suffered by the applicant had left a lasting impression, causing nightmares, disturbed sleep and the development of a psychotic episode. The emergence of the psychotic symptoms was linked to the applicant’s family violence history, uncertainty of remaining in Australia, limited social supports, absence of income security and significant anxiety. The psychiatrist noted the risk of further deterioration given ongoing uncertainty of the applicant’s protection application and precarious psychosocial situation.
Given the consistency in the applicant’s claims about her experiences with her father, and the level of plausible detail she has been able to provide in a range of settings, the Tribunal accepts that the applicant experienced violence from her father throughout her time living with him. The Tribunal accepts that this was in the form of, at the very least, physical and emotional violence. The Tribunal is prepared to accept that the physical violence included beatings and being hit with household objects, including being beaten on the head with a chair.
Given the severity of the family violence experienced, the Tribunal shares the concerns of the delegate as to why the applicant would return to South Korea for four years, and why she would subsequently spend such a prolonged period of time in Australia without a visa. The Tribunal asked the applicant about her return to South Korea at the hearing and she stated that she came to Australia the first time to study, to undertake a six month [occupational] course. She returned to South Korea in 2006 for some four years, where she gave evidence of having experienced further family violence at the hands of her father. When she returned to Australia, she felt safe because she could apply for a working holiday visa. She found out that she could apply for a protection visa in 2017 when she was in detention, after a colleague saw scars and bruises from the family violence she had suffered from her father. She had not wanted to talk to anyone about her experiences with her parents before this.
The Tribunal observed during the hearing that the applicant’s visa had ceased in September 2014 and she had remained unlawfully in Australia for three years, and that given the applicant did not lodge a protection application or find a way to stay lawfully in Australia, this caused the Tribunal some doubt about her claims. The applicant stated in response that she was very unwell physically as, before she returned to Australia, her father had smashed her face with a chair and she couldn’t find work. She didn’t want to show her scars to anyone.
The Tribunal has some difficulty accepting that the applicant, with her level of education and ability to navigate the visa system for two trips to Australia, was not aware until 2017 that she was able to apply for protection. However, these concerns do not outweigh the compelling evidence about the claimed experiences of the applicant in South Korea and, in the Tribunal’s view, do not outweigh the evidence that has led the Tribunal to accept that the applicant was subject to significant family violence from her father.
The Tribunal is prepared to accept the applicant’s evidence that she has not had contact with her father since returning to Australia. The applicant gave evidence to the Tribunal at hearing that she is in telephone contact with her mother but that her mother is not aware of her mental health condition. The Tribunal is prepared to accept this as plausible, given the stigma attached to mental health issues in South Korea. However, given the applicant remains in contact with her mother, the Tribunal does not accept that the applicant would be unable to return to reside with her mother if she returns to South Korea.
The applicant has claimed that her mother and sisters have had some contact initiated by her father and that they have had to move accommodation as a result. The Tribunal noted that this aspect of her claims was disclosed to her treating psychiatrist and has been consistently raised. Given the Tribunal has accepted the level of violence perpetrated by the applicant’s father, the Tribunal is, for the same reasons, prepared to accept that the applicant’s father has sought to make contact with the applicant’s family members in South Korea, that the contact has been of a threatening nature and that the applicant’s family members have felt unsafe because of this contact.
The Tribunal asked the applicant about financial support from her parents when she travelled to Australia and she stated that she had had access to savings from her [occupation 1] job in South Korea. She gave evidence that her father had access to her bank account and used up all of the funds from the bank account. The Tribunal noted that this evidence was different to the information the applicant provided to the delegate, which had been that her father had financially supported her to study in Australia. However, the Tribunal accepts that the applicant has faced significant housing instability over a number of years following her 2018 hospital admission. The Tribunal finds that the applicant would not have faced homelessness and housing instability over a number of years if she had any access to financial resources held by either herself or her parents in South Korea. Because of this, and because of the history of family violence perpetrated against her, the Tribunal finds that the applicant would not have financial support from her father, if she returns to South Korea.
The Tribunal finds that the applicant would return to reside with her mother, if she returns to South Korea now or in the reasonably foreseeable future. The Tribunal finds that the applicant is currently medicated for a significant mental health condition, that she is on a five-year program for [further medical] treatment, that her ability to maintain full-time employment is impacted by her mental health condition and the side effects of her medication, and that she has no savings or financial resources in South Korea.
Given the Tribunal has accepted the applicant’s claimed experiences from her father, and has accepted that her family members have been approached by her father since she has been in Australia, the Tribunal accepts that the chance is not remote or fanciful that the applicant’s father would commit further family violence towards her if they have any further contact upon her return to South Korea.
In its 2022 County Information Report for South Korea, the US Department of State described that, while the law defines domestic violence as serious crime punishable by a fine and up to five years imprisonment, due to a range of reasons, rape and domestic violence continue to be under-reported and under-prosecuted. Non-government groups have criticised the perceived lenience of the judicial system towards offenders, with many receiving light or suspended sentences that may not effectively deter offenders. Despite these limitations, however, the US Department of State describes that police generally respond promptly to reported incidents and the judicial system effectively enforced the law in 2022 for domestic violence offences. The US Department of State further describes that the law provides for an independent judiciary and that the government generally respected judicial independence and impartiality.[1]
[1] US Department of State, 2022 Country Reports on Human Rights Practices: South Korea, 20 March 2023 at

An academic report by Cho et al, which was referred to extensively by the applicant’s representative in their written submissions, notes that domestic violence is a serious social problem in South Korea. The article notes that domestic violence results in a range of physical and mental health consequences for survivors, with many often being abused multiple times. Multiple victimisations increase the risk of poorer health consequences, and survivors of family violence are also likely to face job instability and deprivation of socioeconomic resources.[2]
[2] H. Cho, Y.J. Choi, G.Y. Choi & J Bae, ‘Social policies and services for survivors of domestic violence in South Korea’, International Social Work, 2019, Vol. 62(5), 1358 – 1370.
Cho et al further describe that South Korea has improved its gender equality over the years and has implemented laws and policies on domestic violence since 1998. These include the Prevention of Domestic Violence and Victim Protection Act and the Special Act for Punishment of Domestic Violence Crime (the Punishment Act). The latter of these criminalises domestic violence and allows courts to provide protection including protection orders and limiting perpetrators’ parental rights. Through these Acts, South Korea has made significant progress in criminalising domestic violence, holding perpetrators accountable and protecting and supporting survivors. However, despite such developments, patriarchal attitudes remain pervasive in South Korean society.
The Punishment Act provides protection and support for survivors of domestic violence including through requiring police officers arriving at the scene to immediately restrain a perpetrator and transport a survivor to a shelter or health care provider, the ability for police officers to take emergency temporary measures or temporary measures which include moving the perpetrator away from the survivor or arresting the perpetrator. Historically, however, only a small proportion of emergency measures have been taken and are not widely used, possibly due to the tendency to blame victims, a general lack of awareness of domestic violence resources and the police not understanding or prioritizing the concerns and safety of survivors.
While survivors are able to stay in shelters, if there is no safe place to go after leaving the shelter, survivors are vulnerable to future violence. In order to overcome limitations of short-term shelters, MOGEF started providing long-term housing to survivors and their families. Group homes were also introduced, although these are able to serve only a fraction of the survivors and family members who need them.
As of 2019, Cho et al reported that not all police officers are specialised in domestic violence cases or are required to undertake domestic violence education, with only a small proportion completing domestic violence education. Studies undertaken have shown that up to a third of police officers were not aware of a domestic violence service contact number and over 70 per cent attributed at least some responsibility for violence to female victims.
The Tribunal noted that the applicant’s representative referred to a range of other sources discussing family violence. As these were notably older sources, and refer specifically to intimate partner violence including rape within marriage, the Tribunal did not place significant weight on these sources in making a decision in this matter.
The Tribunal accepts that, if she returns to South Korea now or in the reasonably foreseeable future, the applicant faces further harm from her father in the form of harassment, threats and physical violence. The Tribunal accepts that the harm feared by the applicant amounts to serious harm within the meaning of s 5J(5). However, the Tribunal does not accept the applicant is owed protection as a ‘refugee’ because of this feared harm, on the basis that it is private harm and not for one of the reasons in s 5J(1)(a). Further, having regard to the country information set out above, and in particular the US Department of Justice report from 2022, the Tribunal finds that there are laws to protect the applicant from further harm from her father, a reasonably effective police force and an independent judiciary. The Tribunal finds that the applicant could access the protection and that it is durable. There are effective protection measures available to the applicant in accordance with s 5LA. For these reasons, the Tribunal does not accept the applicant faces a real chance of serious harm from her father, if she returns to South Korea now or in the reasonably foreseeable future.
The Tribunal is also prepared to accept that the applicant may face an exacerbation of her mental health symptoms upon return to South Korea, given the stress associated with returning and the history of family violence she previously experienced. The Tribunal had regard to the applicant’s representative’s submissions on mental health care in South Korea, in particular those sources prepared in more recent years, which indicate the following:
·A BMC Psychiatry article notes that a quarter of South Koreans are affected by a mental health disorder during their lifetime. While structural barriers should be less important in South Korea, due to universal coverage with a national insurance system, only 3.9% of clinics are psychiatric clinics. Further, while South Korea is economically developed, the treatment gap for mental health conditions is ‘huge’, with only 22% of people with a mental illness seeking help in their lifetime. Barriers to treatment include structural discrimination, public prejudice, low accessibility and adverse drug effects.[3]
·As of 2017, nearly one in four South Koreans suffered from a mental health disorder, although only one in ten received treatment, culminating in the country having the highest suicide rate of any OECD nation. Despite the mental health crisis, the problem is rarely discussed, with many South Koreans describing discussions of mental health as taboo. Only 20% of South Koreans seek treatment when depressed, and nearly 75% of elderly South Koreans view depression and mental health problems as a sign of weakness. The government has taken little action aside from raising awareness and most of the work has been left to civil society groups and non-profit organisations.[4]
·Mental health services in South Korea include inpatient care in medical institutions, community-based psychosocial rehabilitation and housing, occupational and economic support. Most mental health patients in South Korea receive hospital-based mental health treatment rather than community-based treatment.[5]
·Mental health problems are not recognised in South Korea and it is not looked at as something that should be openly discussed. South Korea has the second largest suicide rate in the world.[6]
[3] HY Soo, GY Song, JW Ku, HY Park, W Myung, HJ Kim, CH Baek, N Lee, JH Sohn, HJ Yoo, JE Park, ‘Perceived barriers to psychiatric help-seeking in South Korea by age groups: text mining analyses of social media big data’, BMC Psychiatry, 2022, Vol 22, p332.
[4] S Nagar, ‘The struggle of mental health care delivery in South Korea and Singapore, Harvard International Review, 11 March 2022 at
[5] S Roh, SU Lee, M Soh, V Ryu, H Kim, JW Jang, HY Lim, M Jeon, JI Park, SK Choi, K Ha, ‘Mental health services and R&D in South Korea’. International Journal of Mental Health Systems, 2016, Vol 10, p45.
[6] J O’Brien, ‘Stressed and depressed: Mental health in South Korea’, 15 February 2019, Borgen Project at
The Tribunal also had regard to other recent country information, which states that since the introduction of the Mental Health Act in 1995, there has been a fivefold increase from 2001 to 2015 of mental health rehabilitation centres and mental health welfare centres. The Mental Health Act legalized the process of involuntary admission to hospital and reinforced the provision of services at the community level. The definition of ‘mental health professionals’ was expanded, services were expanded to include programs for juveniles, to address alcohol dependence and the demographic covered was expanded. The Mental Health Act was revised in 2016, in line with recommendations from an OECD investigation team. However, large numbers of patients continue to be treated in private mental health hospitals as before, suggesting there continues to be a large reliance on inpatient care. Following an OECD investigation, the government was intending to enhance community-based care services for both people with a mental illness and for the general public, to curb hospital-based treatment and to extend coverage to the majority of the population. Most community facilities have trouble meeting the demand for services and, despite advances, the mental health system remains framed by the hospitalisation model. Longer term accommodation options remain insufficient for mental health patients and promotion has come at the expense of case management.[7]
[7] YC Heo, SK Kahng, S Kim, ‘Mental health system at the community level in Korea: development, recent reforms and challenges’, International Journal of Mental Health Systems, 2019, Vol 13, p9.
The Tribunal finds that the applicant would be able to return to reside with her mother and that she has some level of work capacity, as demonstrated by her ability to sustain a level of casual employment in Australia. The Tribunal is not satisfied that the applicant faces a denial of access to basic services, a denial of the capacity to earn a livelihood, or serious harm as otherwise defined in s 5J(5), because of her mental health condition. The Tribunal finds there is not a real chance the applicant faces serious harm, if she returns to South Korea now or in the reasonably foreseeable future, because of her mental health, or as a member of the particular social group of women with severe mental health issues.
The applicant’s representative submits that the applicant is also at risk of serious harm as a single woman in South Korea. The representative noted commentary in the 2019 US Department of State report which refers to sexual harassment. The most recent US Department of State report also notes that sexual harassment remains a significant social problem, with offenders facing up to three years in prison and a significant fine. The US Department of States notes that the law obligates companies and organisations to take preventative measures against sexual harassment and the government generally enforced the law effectively. The report otherwise notes that women enjoy the same legal rights under the Constitution and the government enforced the law effectively.[8]
[8] US Department of State, 2022 Country Reports on Human Rights Practices: South Korea, 20 March 2023 at
The Tribunal preferred this source to older sources cited by the applicant’s representative and found from this that, while sexual harassment remains a problem, there are preventative measures in place and the government enforces laws relating to sexual harassment. The Tribunal is not satisfied that the applicant faces a real chance of serious harm in South Korea for reasons of her gender or as a member of the particular social group of single women in South Korea.
The Tribunal has also considered the cumulative claims of the applicant but is not satisfied she faces a real chance of serious harm when her claims are considered cumulatively.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). This requires the Tribunal to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk the applicant will suffer significant harm.
‘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. 42.
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
The Tribunal is prepared to accept, for the reasons set out above, that if she returns to South Korea now or in the reasonably foreseeable future, the applicant may face adverse attention from her father in the form of harassment, and emotional and physical abuse. The Tribunal is prepared to accept that the applicant’s mental health symptoms are likely to be exacerbated with the stress of returning to South Korea. The Tribunal accepts that the applicant would return to South Korea as a single female who is working casually due to the severity of her mental health symptoms.
The Tribunal finds that, if the applicant were to return to reside with her mother, there is a real risk she would face significant harm from her father, on the basis that he is living in a neighbouring area and has been motivated to have some level of contact with her mother and siblings. The Tribunal accepts that the harm faced by the applicant from her father constitutes cruel or inhuman treatment or punishment and degrading treatment or punishment that would be intentionally inflicted.
The Tribunal finds that it would not be reasonable for the applicant to relocate given the severity of her mental health symptoms, inability to work full-time and lack of family or social supports in any other area of South Korea.
Country information, set out above, states that domestic violence remains a serious social problem in South Korea. Patriarchal attitudes, a lack of understanding or prioritising by police and police attribution of responsibility on victims of family violence all contribute to a culture where family violence is acknowledged but, in many instances, poorly responded to. Given the prevalent societal and police attitudes towards family violence in South Korea, the Tribunal is not satisfied that the applicant could obtain protection such that she would not face a real risk of significant harm from her father.
The Tribunal accepts that the risk of harm to the applicant is specific to her family circumstances and is not faced by the population generally.
For these reasons, the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to South Korea, there is a real risk the applicant will suffer significant harm.
The Tribunal finds that the applicant does not have a right to enter and reside, either temporarily or permanently, in any third country pursuant to s 36(3).
The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Tamara Hamilton-Noy
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.
…

[2023] AATA 2441

24 May 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction