1826674 (Refugee)

1826674 (Refugee) [2024] AATA 1262 (17 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Kyu Man Hwang
CASE NUMBER:  1826674
COUNTRY OF REFERENCE:                   Republic of Korea
MEMBER:Frances Simmons
DATE:17 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 April 2024 at 5:41pm
CATCHWORDS
REFUGEE – protection visa – South Korea – particular social group – Wang dda – social exclusion – living in another country and Australia for many years – economic, cultural and social change and fear of bullying – no past harm – returns from other country and Australia – mother and siblings in home country and adult children in Australia as permanent resident or planning to apply – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 Home Affairs on 3 September 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of the Republic of Korea, applied for the visa on 6 March 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations, either as a refugee or because she was otherwise entitled to complementary protection.
The applicant appeared before the Tribunal on 10 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
The applicant is a citizen of the Republic of Korea born on [Date]. The applicant last arrived in Australia [in] April 2017, and she applied for the protection visa on 6 March 2018. According to this application, she is of Korean ethnicity and speaks, reads, and writes the Korean language. Her two adult children are citizens of the Republic of Korea who currently reside in Australia. Her mother, who was born on [Date], resides in South Korea. She was married in South Korea in [Year] and separated from her husband in [Year]. The applicant does not have a religion.
Between [Year] and December 2010 the applicant lived in [Province] in [Country 1]. Since December 2010 she has lived in Australia. In 2017 she returned to South Korea. She last departed South Korea from Incheon Airport in 2017 and returned to Australia in April 2017. The applicant has not departed Australia since 2017.
In her application for a protection visa she states she has been ‘living overseas for many years’ since she left South Korea and it would ‘be very difficult’ to ‘resettle in South Korea because of the things that have changed in my home country’. The applicant submitted:
Since my departure, a great deal of things changed in my country socially, culturally and economically, Such as me who does not familiar with its culture and social norms, i would be seriously subject to a social and cultural target that would be ostracised by a current community in South Korea.
When asked if she had experienced harm in South Korea in the past, she said no. In response to the question about whether she believed she would harmed or mistreated if she returned to South Korea, the applicant claimed:
I know that this ostracisation would be inflicted upon as soon as I return to South Korea and resume to live because people around me know that I am somewhat different from what they think and what i will be doing in socially. Then i would be excluded socially, culturally from other peer groups deliberately.
The applicant claimed that social ostracism is widespread in South Korea, such that it would not make any difference if she relocated within the country. The government is unable to do anything about this social and cultural phenomenon.
Evidence before the Tribunal
The applicant provided a copy of the delegate’s decision with the application for review. The delegate’s decision records that the applicant first arrived in Australia [in] December 2010 on a visitor visa. She subsequently applied for visitor visas and student visas. [In] April 2017 she departed Australia. She returned to Australia [in] April 2017.
On 3 April 2024 the Tribunal received a pre-hearing submission from the applicant’s representative. The submission asserts that the applicant is a member of a particular social group of ‘Wang dda & exclusion or inclusion - a group of people who have lived in a foreign country for approximately 30 years’. It is submitted that the applicant has a well-founded fear of persecution in South Korea. The submission continues that when the applicant left South Korea ‘she had no reason to fear persecution’ but she now fears harm due to ‘changes of social behaviours and norms in South Korea. The submission continues:
… Wang dda (social bully including exclusion) is widely spread in Korea and a person as the review applicant who has been in overseas for such a long time approximately 30 years is not familiar with a lot of new social systems & environments in Korea as well as no friends or work colleges, there would be a strong possibility that she would be a victim of this Wang dda (social exclusion) if she returns to her country (errors in the original)
The applicant appeared before the Tribunal on 10 April 2014 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The Tribunal explained the refugee and complementary protection criterion to the applicant. The applicant affirmed that the information provided in her protection visa application was true and correct. Asked if it contained all her claims for protection, she said yes. The applicant was questioned about her background and experiences in the Republic of Korea and her claims for protection.
The Tribunal asked the applicant about why she came to Australia in 2010 and she said because she lived in [Country 1] for a long time it was ‘hard to cope in Korean life’ and her children were in Australia. She said her children first arrived in Australia in 2006. The applicant claimed it would be hard for her if she returned to South Korea after living in [Country 1] and Australia since [Year].
The applicant told the Tribunal that she did not experience any harm living in South Korea before she travelled to [Country 1] in [Year] or when she returned to South Korea from [Country 1] in 2010. She said that in 2010 she only spent a week in South Korea and she was with her family and did not experience any problems at this time. The applicant said that when she returned to South Korea in 2017, she found everyday living and travel within South Korea ‘hard’. Asked whether anyone harmed her on this occasion, she indicated they did not.
The representative acknowledged that, contrary to the assertions in the pre-hearing submissions, the applicant’s evidence was that she returned to South Korea in 2010 and 2017. The representative reiterated his written submissions that the applicant would face ‘social exclusion or social discrimination’ if she returned to South Korea. He stated ‘we do not know, and we cannot point out who is going to harm the applicant’ but if she returns to South Korea and starts engaging in social activities such as school or work his feeling was someone would harm the applicant.
Where relevant the applicant’s evidence at the hearing is referred to below in the findings and reasons.
FINDINGS AND REASONS
The applicant claims to be a citizen of the Republic of Korea. Based on the evidence before it, the Tribunal is satisfied the applicant is a citizen of the Republic of Korea and that Republic of Korea is the applicant’s ‘receiving country’ for the purposes of the refugee criterion and complementary protection criterion.
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220.
[2] Randhawa v MILGEA (1994) 52 FCR 437, 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347, 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
Background and past experiences in the Republic of Korea
The Tribunal makes the following findings of fact based on the information the applicant has provided to the Department and the Tribunal:
(a) The applicant is a [Age]-year-old citizen of the Republic of Korea. She was born in [Year] in [City 1]. She is of Korean ethnicity and speaks the Korean language. She also speaks ‘some [Country 1 language]’ and ‘a little bit’ of English.
(b) The applicant has a [Age] year old son and a [Age]-year-old daughter. Both her children are currently resident in Australia and her son is a permanent resident.
(c)   The applicant lives with her son in Australia. She told the Tribunal her son provides her with support, and she also works as a [Occupation]. Her daughter lives in Newcastle; she is in the process of planning for a permanent visa.
(d) The applicant is separated from her husband who is also resident in Australia.
(e) The applicant’s mother and [siblings] live in South Korea − her mother and her [brothers] live in [City 1], and her sister lives in [City 2] city.
(f)    The applicant has also lived in [City 1] city, as well as [City 3] in Kyong province. Between [Year] and [Year] she lived with her mother in [City 1].
(g) The applicant’s husband relocated to [Country 1] in [Year] and she joined him with her children in [Year]. She lived in [Country 1] until 2010.
(h) The applicant travelled to Australia from South Korea in 2010 because her two children were living in Australia.
(i)    The applicant departed Australia [in] April 2017 and returned to South Korea.[3] She did not travel to any countries before she returned to Australia from South Korea [in] April 2017.
(j)    The applicant last saw her mother and sister in South Korea in 2017. Her mother is now in hospital in South Korea as she has dementia. The applicant last spoke to her sister about a month ago.
(k)   The applicant has not experienced serious harm or significant harm in South Korea in the past.
[3] Delegate’s decision, p 1.
For the purpose of this decision, the Tribunal is prepared to accept that the applicant lived in [Country 1] between [Year] and 2010. Although the movement records before the Tribunal indicate the applicant first travelled to Australia in 2010, the delegate’s decision record indicates that she has previously been known by her married name. For the purpose of this decision, the Tribunal accepts that the applicant travelled to Australia for around one week in 2006.
Protection claims
The Tribunal has carefully considered the applicant’s profile and her claims for protection. For the reasons that follow, the Tribunal is not satisfied that she has identified any basis upon which the Tribunal could conclude she is owed protection as a refugee or complementary protection.
At the hearing the applicant told the Tribunal that she has lived away from South Korea for a long time; she has lost relationships there. She may have to work in South Korea and workplace relationships will be hard for her.
The Tribunal accepts that the applicant has lived outside of South Korea since [Year] and, since then, has returned to South Korea twice, in 2010 and 2017. The Tribunal understands that she would prefer to continue living in Australia where her two adult children live and where she has lived since December 2010. However, the question the Tribunal must consider is whether she meets the refugee criterion or the complementary protection criterion. The Tribunal put to the applicant that her evidence indicates that she lived in South Korea from her birth in [Year] to [Year], and that she did not have any problems doing so. The Tribunal noted she voluntarily returned to South Korea from Australia for a short period of time in 2017 and had been able to adjust to life in Australia and [Country 1]. The Tribunal referred to her claim that life would be ‘hard’ if she returned to South Korea now. The Tribunal explained that what it had to consider was whether there was a real chance she would face serious harm or significant harm.
The applicant told the Tribunal because she had lived overseas for a long time she may have to work. She believed it would be hard to have good relationships in the workplace and generally with other people so she would have a hard time. She was single, so she lived alone, and she believed she would have trouble. The Tribunal asked who she believed would harm her. The applicant said she had to work, and she could not cope well in the workplace so for that reason there would be some mistreatment from people. The Tribunal put to the applicant she was working as a [Occupation] in Australia, and asked why she could not do that work in South Korea. The applicant said even though South Korea was her own country, she lived outside for a long time and did not know many things about South Korea.
The applicant’s evidence is that she was born in South Korea, speaks the Korean language, and is of Korean ethnicity. As the Tribunal put to the applicant her evidence also indicates that she has been able to adjust to life in two countries where she was a non-citizen and did not initially speak the language, and that she has been able to find work in Australia. Her [siblings] currently reside in South Korea. The Tribunal put to the applicant it was having difficulty understanding on what basis she believed she would face serious harm or significant harm if she returned to South Korea. The applicant said this was her feeling; she was afraid to live in South Korea.
The Tribunal referred to the applicant’s claims in her protection visa application that she will experience social ostracism in South Korea because she was no longer familiar with its social and cultural norms, that people would know she had changed from her time in Australia, and she would be excluded from peer groups. The applicant said this is true. The Tribunal put to the applicant that South Korea had a population of 51 million people,[4] she is of Korean ethnicity, and it was unclear who she was claiming would exclude her. The applicant reiterated this was her fear. She did not think she could stay with her sister because their relationship was not that good.
[4] DFAT, Republic of Korea, Economic Fact Sheet< >
While the Tribunal accepts that the applicant may live alone if she returns to South Korea, the applicant’s evidence is that she has previously resided in different cities in South Korea, most recently [City 1] where her brothers reside, for extended periods of time. When asked why she could not live in [City 1] on return to South Korea, the applicant said she did not have any friends in South Korea because she had been away so long. The Tribunal put to the applicant that even if it accepted that she would face some level of hardship or difficulty if she returned to South Korea, the question it had to consider was whether there was a real chance she would face serious harm or significant harm. The Tribunal put to the applicant she still had family in South Korea, and that she had been able to adjust to life in different cities in South Korea, as well as in [Country 1] and Australia. The Tribunal put to the applicant that it may form the view that she had the resilience and resources to adapt to life in South Korea. The applicant said yes, but this was her feeling.

The Tribunal referred to the pre-hearing submissions that the applicant would face Wang dda (bullying and social exclusion). The applicant said this was what she was anxious about. The Tribunal put to the applicant that it understood that the term Wang dda, a Korean word implying the target of bullying, was first introduced in the Korean media in the 1990s.[5] The Tribunal noted that since this time, there had been public discussion of the issue of Wang dda, including bullying in schools. The Tribunal put to the applicant that it could not find any country information that South Korean nationals who returned from living abroad for a significant period of time were targeted for Wang dda or other forms of harm. The applicant said the Tribunal was right, but this was how she felt. Neither the applicant nor her representative identified any country information that supported the claim that she would be targeted for Wang dda because she had lived outside of Korea since [Year].
[5] You, S., Kim, E., & Kim, M. (2014). An Ecological Approach to Bullying in Korean Adolescents. Journal of Pacific Rim Psychology, 8(1), 1-10. >
On the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will be subject to Wang dda (bullying, social exclusion, and discrimination) by members of South Korean society (including those she may encounter in the workplace) because she has lived abroad for over two decades or for any other reason. When the Tribunal put to the applicant it was unclear on what basis she would be subject to Wang dda, the applicant said she understood but this was her feeling. It had not happened yet, but she feared it may happen in the future, particularly considering that she was now older. The Tribunal considers this statement and the submissions of her representative to be highly speculative. The Tribunal is not satisfied that there is a real chance that, having regard to her personal characteristics and history of living abroad, there is a real chance that the applicant will face any form of harm (including societal discrimination, ostracism and exclusion, Wang dda) that rises to the level of serious harm or significant harm.
The Tribunal finds that if the applicant were to return to South Korea any economic hardship or difficulty she may experience would not amount to serious harm or significant harm. The Tribunal asked whether her adult children would provide her with financial assistance if she returned to South Korea and she said she expected a little bit of support because she was their mother. The Tribunal put to the applicant that it did not appear any economic hardship or difficulty she may face finding work would be directed at her for one of the reasons in the refugee definition. The applicant indicated she did not know about working life in Korea because she met her husband after school. The Tribunal put to her that it may have difficulty accepting any economic hardship that she may experience in South Korea would amount to serious harm in circumstances where she could seek financial assistance from her adult children, she had been able to find work in Australia, was still of working age, and unemployment rates in South Korea are low (less than 3 per cent).[6] The applicant did not comment on this information.
[6] DFAT, Republic of Korea, Economic Fact Sheet <
The applicant was provided with an opportunity to identify any other claims for protection. None were identified and none arise on the material before the Tribunal.
The Tribunal accepts that the applicant is a [Age]-year-old woman who has lived outside of South Korea in [Country 1] and Australia since [Year]. The applicant has not claimed, and the Tribunal does not accept that she has experienced serious harm or significant harm in South Korea in the past. Having regard to what it has accepted of the applicant’s claims and profile, the Tribunal is not satisfied that there is a real chance that she will be subject to serious harm for reasons related to the fact she lived outside of South Korea since [Year] or for any other reason if she returns to South Korea now or in the reasonably foreseeable future. Nor, on the evidence before it, is the Tribunal satisfied that there are substantial grounds for believing there is a real risk that she will suffer significant harm in South Korea for any of the reasons claimed or for any reason.
Refugee criterion
The Tribunal accepts that the applicant would prefer to remain living in Australia as her two adult children are resident in Australia and she has lived in Australia since December 2010. The Tribunal has considered her claims individually and cumulatively, having regard to what the Tribunal has accepted about her personal circumstances. Based on its findings of fact and having considered all the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for any reason set out in s 5J(1)(a) of the Act if she returns to the Republic of Korea now or in the reasonably foreseeable future.
The applicant has not claimed that any economic hardship or difficulties she may experience securing employment in the Republic of Korea would be directed at her for the essential and significant reasons of her race, religion, nationality, membership of a particular social group or political opinion as required by s 5J(1)(a). Furthermore, the Tribunal is not satisfied that any economic hardship or difficulties that she may encounter if she returns to the Republic of Korea will amount to serious harm for the purposes of s 5J(5) of the Act.
The Tribunal is not satisfied that any hardships, social isolation, discrimination or difficulties she may experience if she returns to South Korea will rise to the level of serious harm for the purposes of s 5J(5) of the Act. The Tribunal is not satisfied that the applicant will experience severe economic hardship that threatens her capacity to subsist or be denied the capacity to earn a livelihood, where the denial threatens her capacity to subsist or that she will be denied access to basic services, where the denial threatens her capacity to subsist or that she will be subject to any other form of serious harm non-exhaustively listed under s 5J(5) of the Act.
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).
Complementary protection
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). In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[7]
[7] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
The Tribunal finds, based on its findings of fact and all the evidence before it, that there is no real risk that the applicant will face significant harm if she is removed from Australia to the Republic of Korea. For the reasons given above and having considered all the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Republic of Korea, there is a real risk that she will suffer significant harm as defined in s 36(2A) and s 5(1) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Frances Simmons
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.
…

[2024] AATA 1262

17 April 2024

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