1830257 (Refugee)

1830257 (Refugee) [2018] AATA 5077 (22 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1830257
COUNTRY OF REFERENCE:                  Korea, Republic Of
MEMBER:Luke Hardy
DATE:22 November 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 November 2018 at 10:03am
CATCHWORDS
REFUGEE – protection visa – South Korea – particular social group – victims of loan sharks – effective protection – fear of physical violence to family – illegal repayment schemes – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIMA v Prathapan (1998) 86 FCR 95
MIMA v Respondents S152/2003 (2004) 222 CLR 1
MIMA v Thiyagarajah (1998) 80 FCR 543
MZ RAJ v MIMIA [2004] FCA 1261
NAGV & NAGW v MIMIA (2005) 222 CLR 161
Osman v United Kingdom (1998) 29 EHRR 245
S1573 of 2003 v MIMIA [2005] FMCA 47
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 October 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, [the applicant], is a citizen of the Republic of Korea. He has entered and departed from Australia on a number of occasions since his first arrival in 2005. He last arrived here [in] June 2006. He held a number of visas including working holiday and student visas. His last substantive visa was a student visa issued [in] May 2011 and cancelled [in] February 2014, after which date he became an unauthorised non-citizen.
[The applicant] was remanded into custody [in] May 2018 in the matters of two counts of “Receiving and Dealing with Proceeds of Crime” and one count of “Participate with a Criminal Group and Contribute to Criminal Activity”. He was granted bail [in] June 2018 and transferred to Immigration detention at [named] IDC. [In] June 2018, he signed a request for voluntary removal from Australia and made an application for a South Korean travel document. [In] August 2018, he was convicted in the matter of “Receive Property-Theft” a serious indictable offence and was sentenced to a term of imprisonment of [term] being released from criminal custody into a good behaviour bond for a term of [term]. He was not released from detention. He withdrew his request for voluntary removal [days later]. He lodged a protection visa application on 16 August 2018. The Minister’s delegate refused to grant the visa on 9 October 2018. [The applicant] then applied for review of the delegate’s decision.
[The applicant], who is unrepresented, appeared before the Tribunal by video link on 9 November 2018 to give oral evidence and present arguments. The hearing was facilitated by an interpreter in the Korean-English medium.
[The applicant’s] claims relate to fear of harm from alleged loan sharks. At the conclusion of the hearing, the Tribunal granted him a further week to provide further material in support of his review application. A short submission accompanied by some relevant media reporting was received by email on 16 November 2018 and has been duly considered.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her 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 he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds. For the following reasons, I have concluded that the decision under review should be affirmed.
Claims
In his original protection visa application, [the applicant] claimed he came to Australia because he wanted to study and experience life in a foreign country. He claimed that while he was living in Australia, he was running a business with his brother and they borrowed money to compensate its poor performance. He said the money came from various sources including friends, family, and private lenders. He claimed that the interest he owes to lenders has grown so large that he cannot return to Korea. He claimed that, if he returns to Korea, he might be pushed into criminal activities. He claimed he will face threats to his mental and physical wellbeing from creditors. He claimed that his creditors suggested that he takes radical steps to repay the debt such as selling his organs, working on a fishing boat or using multiple credit cards to pay them off. He claimed fear of his family never being free of debt.
[The applicant] claimed that in the event of his removal to Korea, the police would inform his family of his return and they would face a greater danger. He said he does not even contact his family members so as to protect them from harm. He said the Korean government will not assist him with debt repayments or protect him from harm because he borrowed money from private lenders instead of an ordinary bank or lending institution. He said he could not relocate within Korea to avoid harm because his creditors would easily be able to locate him anywhere there.
In his protection visa application form, [the applicant] provided written details of his education and employment history in Korea. He also described his family: his [specified family members], all residing at the time of his protection visa application in Jeongeup (or, as he spelled it “Jungeup”), a small city in the southwest of the country. He later indicated to me that he has one [further family member] in Korea and that he had lost contact with the brother with whom he started the business in Australia: he said he may still be here or might already have returned to Korea.
[The applicant] was not interviewed at the primary stage of his protection visa application. The Minister’s delegate found that [the applicant’s] claims did not relate to any of the five criteria in s.5J(1)(a) of the Migration Act and that his claims could not succeed as refugee claims. The delegate then proceeded to assess his claims as claims to complementary protection. Accepting that [the applicant] owes money to unscrupulous lenders, the delegate relied on independent country information in finding that South Korean authorities, including the police and judiciary, are effective in combating illegal money lending and associated criminal activities. The delegate concluded that there was no information before him to indicate that the State would be unable or unwilling to protect [the applicant] in his particular circumstances, were he to require its protection from moneylenders. Thus he found that he would receive protection from the South Korean police and judiciary against any threats he faces from moneylenders or associated criminals in South Korea to reduce any risk the applicant faces from this criminal entity to less than a real one.
In his evidence before me, [the applicant] said he and his brother borrowed money from Korean loan sharks here in Australia over five or six years ago. He said that, “technically”, it was his brother who was the borrower and that the money was used to set up [a] business in [Suburb 1]. He said that he started to borrow money for his brother when the latter was losing money and unable to borrow more. He said that the loan sharks know his family’s address in Korea. He said the loan sharks’ contacts in Korea had asked his family to repay with interest on his behalf. He said he heard of this demand before he cut contact with his family five or six years earlier. However, when he told me that he had cut all contact with his family back in Korea, he said he did so in order to protect them from harm from the loan sharks’ networks. I put to him that there did not seem to be any logic to this, since the lenders already knew where his family lives and were already pressing his parents to pay. In reply, he said, “If I’m there with them, they’ll be harmed.” This response did not help to explain the logic of staying out of contact with his family.
[The applicant] claimed at the hearing that the loan sharks here in Australia are trying to “send” him to Korea where he claimed fear of being killed by their contacts. I asked how they could conceivably do that, and then he said that the loan sharks had tried to persuade him to repay the loan in Korea. By this response, he did not appear to be suggesting that the loan sharks were trying to get him back to Korea in order to do away with him. I asked him how his lenders could conceivably expect him to repay the loan in Korea where wages are notoriously low, and he said that they were suggesting many different methods he could use in Korea to raise funds for repayments such as by “selling bank accounts”. He described “selling bank accounts” as a criminal method to which his lenders had already introduced him here in Australia around five or six years ago. He said he had engaged in unlawful credit card activity without much success in keeping up with repayments. He said the loan sharks had continued to pressure him to whole time, for over half a decade. He later said that the lenders want him to go back to Korea because that is their home turf where they can more easily exert power over him.
[The applicant] told me that when the loan sharks suggested he become involved in “selling bank accounts” they met him in front of his house, or a house near his house, and did not threaten any violence. He said there was no reason for the loan sharks to be violent towards him and they were proposing he work for them. So that he and they could make money. He did not detail to me any occasion on which the loan sharks were violent or threatened specific harm. He nevertheless said he fears harm from the loan sharks as the loan remains unresolved.
I put to [the applicant] that in this light it might be just as unsafe for him to remain in Australia where he says he has been easy to locate by the loan sharks and their networks over the years. In reply, he said that if he is allowed to be released from detention and allowed to stay in Australia he would report the loan sharks and their gang to the authorities and therefore be safe here. He did not remotely suggest, however, that he had ever contemplated doing this in the past. He said he had never known before now that he could report the loan sharks to Australian authorities. He went on to say that if he is allowed to remain in Australia he will still not be able to repay the money he owes here, but will relocate to [another city] where he might be safe from discovery by, and harm from, his lenders.
[The applicant] went on to say that if he goes back to Korea his family will raise money to protect him from harm. When I put to him that this seemed to solve his problems, he said his family currently cannot afford to repay the people from whom he and his brother borrowed. When I questioned how he could be up-to-date with his family’s circumstances after claiming no contact for over five years, [the applicant] said he does not know anything for sure. He said, “I don’t know what their wealth is at the moment. Whether they became rich or not, I don’t know.” He said his family had been suffering from an economic downturn the last time he was in touch.
[The applicant] also said that if he goes back to Korea, his creditors might report him to the police. I asked him to explain this claim in more detail and he said his lenders might convince the police that the loan they made to him in Australia was legal and that he was in breach of his contract to them. This claim struck me as far-fetched speculation.
I asked [the applicant] about his brother, of whose whereabouts over the last five or more years he claimed no knowledge. This was when he said his brother may still be here or already back in Korea. I asked him if he had made any attempts to find out where his brother might be, the better to gain a clearer picture of his own predicament and he said he had not.
[The applicant] said he did not know he was doing anything wrong when he was fraudulently dealing with credit cards and bank accounts, at the behest of his lenders, to repay his loan. However, from the start, he characterised the lenders here as people whose practices resemble those of racketeers back in Korea. He clearly indicated to me that he consented some time back to engage in rackets operated by his lenders in a bid to repay them what he owed them and that he did this in order to continue to avoid being physically harmed by them. He said at another stage in the hearing that he had wanted to report them to the police early on and that what had stopped him doing was a lack of knowledge about the ability to report. He said in his post-hearing submission that his creditors asked him to do illegal work for them in order to repay the loan. He said they had also offered to assign him to illegal activities in Korea. On the other hand, he claimed he was not afraid of the police during all this time and even reported at one stage to a police station that was investigating a traffic accident, something he said he would not have done were he trying to avoid the law.
I asked [the applicant] when he first realised that he needed Australia’s protection from being harmed in Korea, and he said he did so one month after his arrival at [named] IDC, which would have been around mid-July 2018. He said he decided he needed protection after another detainee told him about the existence of protection visas. I note, nevertheless, that he remained the subject of a request for voluntary removal to Korea until mid-August 2018. I queried why it took so long for [the applicant] to explore his options for protection in Australia given that the issue at the heart of his case is one that purportedly dates back five to six years, when he originally fell foul of loan sharks here, cut ties with his family back home due to the danger his situation potentially caused them and even, as he put it, went into hiding. I put to [the applicant] that he appeared to have done nothing to secure protection from harm in Korea for a very long time and, in reply, he said that while he was in remand, a little earlier in 2018, he considered returning to Korea “no matter what”, but thought at the time he had no options anyway. He said he had heard of Australia granting protection to foreigners but had thought that this process was only available to people who arrived here by boat.
I put to [the applicant] that independent country information indicates an ability and willingness on the part of Korean authorities to protect citizens in that country from unreasonable treatment by usurious money lenders. In reply, he said, “That has been happening a long time.” He went on to suggest that there is a difference between appearances and actuality, likening the situation in Korea to Australia, where, in spite of there being institutions to protect the community from drugs, there are still drug dealers at large.
Asked if he was out of touch with his family due, say, to the shame of having been charged and convicted abroad, [the applicant] said that his family still supports and loves him. I reminded [the applicant] of his claim to the effect that if he returns to Korea his family will raise funds to protect him from being harmed by his creditors. In reply, he said he does not know how much money his family currently has. He said his family was poor when he left Korea. He told me his father is [an occupation].
In his post-hearing submission, [the applicant] said that although he has a “strong conviction” that Korean authorities are cracking down on illegal lenders, that will not be sufficient to protect him there. He said, in the context of Korea’s official activities to curb and prosecute unscrupulous lenders, he feared being an unintended “exception”.
Referring to violence in his post-hearing submission, [the applicant] referred only to an episode he experienced in Korea, involving his having to have stitches at a Korean hospital. He did not make it clear in the submission how, or even whether, this had anything to do with the loan he and his brother took out in Australia, where he last arrived in 2006. Going by basic chronology, it does not appear possible that the alleged injury had anything to do with the loan.
[The applicant] claimed that until he applied recently for a Korean passport he was listed in Korea as a “missing person”. He said he would not be able to relocate in Korea because the authorities might be forced to tell the loan sharks’ networks where he is. His evidence here struck me as being baldly speculative.
Independent country information

I have had regard to the independent information submitted by [the applicant]. I have also had regard to following information[1] about official laws and practices pertaining to loan shark activity in Korea:
The government of South Korea enacted legislation in 2002 reportedly to combat the practice of lending money at an excessive rate (The Korea Herald 9 Mar. 2007; see also Hankyoreh 23 Oct. 2006). The legislation established an interest rate limit for private moneylenders (ibid; The Korea Herald 9 Mar. 2007; Korea 26 Aug. 2002) and required that moneylenders officially register their businesses (ibid.).The Act on the Registration of the Moneylending Business and Protection of Consumers governs all moneylending businesses, whether they are registered with the government or not, according to a lawyer in a South Korean law firm (The Korea Herald 9 Mar. 2007). However, although the legal interest rate for private loans is 66 percent (Korea 29 Dec. 2006; Hankyoreh 16 Jan. 2007; The Korea Times 16 Jan. 2007), according to the Korean newspaper the Hankoyreh, lax regulation by the authorities means that the actual annual average interest rate remains at 200 percent (16 Jan. 2007).
Indeed, according to government estimates reported in the Korean media in 2006, around 5.6 million people borrowed money from private moneylenders at an average interest rate of 200 percent (Hankyoreh 16 Jan. 2007; The Korea Times 15 Jan. 2007). The outstanding balance owed to private moneylenders in 2006 is estimated to be 796 billion Won (KRW) [approximately CAD 977 million (XE.com 10 April 2007a)], up from 570 billion Won (KRW) [approximately CAD 701 million (ibid. 10 April 2007b)], according to statistics from the National Information Credit Evaluation (NICE) (The Korea Times 15 Jan. 2007). The NICE also reports that the number of people borrowing from private moneylenders went from 205,000 a year ago to 325,000 in September 2006, and that the majority of borrowers were in their 20s and 30s (ibid. 9 Jan. 2007).
As several sources explain, people who are unable to meet the conditions of established financial institutions are turning to moneylenders instead (The Korea Times 6 April 2006; Hankyoreh 23 Oct. 2006; Korea 29 Dec.2006). Would-be borrowers refused by banks or other financial institutions because of bad credit ratings tend to use private moneylenders for loans, as do unemployed young adults (The Korea Times 6 April 2006; Hankyoreh 23 Oct. 2006; Korea 29 Dec.2006). The National Police Agency (NPA) also indicates that Koreans who are not considered creditworthy by banks and other financial institutions borrow from private moneylenders when they are short of cash (Korea 29 Dec. 2006). Because the borrowers are such a high credit risk, interest rates are reportedly "murderous," with firms charging one or even two percent daily (Hankyoreh 23 Oct. 2006). In addition, The Korea Times reports that "many" people, once in debt, also turn to loan sharks to obtain money to pay down their loans (27 Dec. 2005).
There are some 16,000 private moneylenders registered with the South Korean government and a further 40,000 private moneylenders are reportedly operating illegally in the country (The Korea Times 15 Jan. 2007). In addition to charging exorbitant interest rates, illegal private moneylenders, or loan sharks, commonly resort to violence to collect money from recalcitrant debtors, according to the NPA (Korea 29 Dec. 2006).
Unlawful methods of debt collection are spelled out, among other regulations, in the 2002 Moneylending Registration Act (Korea 26 Aug. 2002). For example, Article 10 of the Act states that moneylenders shall not [translation] "assault or threaten" borrowers in order to collect money (ibid.). Nor can they [translation] "significantly harm" the private or work life of the borrower by causing [translation] "fear or uneasiness" to either the borrower or people connected to the borrower (ibid.). They likewise cannot visit the borrower, or those connected to the borrower, without just cause (ibid.). Anyone who breaches the prohibitions of the law is subject to a maximum prison term of either three or five years or fines of up to KRW 50 million [approximately CAD 62,000 (XE.com 13 Mar. 2007a)] or KRW 30 million [approximately CAD 37,000 (ibid. 13 Mar. 2007b)], depending on the nature of the offence (Korea 26 Aug. 2002., Art. 19).
The NPA has indicated that beginning in January 2007, it is undertaking a three-month special crackdown on loan sharks who engage in violent business practices and who charge illegal interest rates (ibid. 29 Dec. 2006; Newsis 18 Jan. 2007). As part of the crackdown effort, a task force team will provide direction to 235 police stations and 1,236 team members as they investigate [translation] "violence, kidnapping, invasion of private life and so on" and monitor the extent to which criminal groups enter private moneylending markets (Korea 29 Dec. 2006). The police are also setting up call numbers and a Web site through which citizens can report illegal private financing activities (ibid.; see also The Korea Times 15 Jan. 2007). Moreover, any police officers who excel at apprehending people suspected of loan-sharking will reportedly be rewarded in various ways, for example, by receiving a promotion (Korea 29 Dec. 2006). The crackdown has been advertised to the public by various means throughout South Korea (ibid.). Police managed to arrest at least two private moneylenders in separate incidents for charging and collecting interest higher than the legal limit in violation of the moneylending law (Newsis 19 Jan. 2007; Kukmin Ilbo 29 Jan. 2007). According to the NPA, these loan sharks strive to keep their identities secret, for example by frequently moving their offices, using anonymous phone numbers and making financial transactions using accounts that cannot be traced to them (Korea 29 Dec. 2006). They use various methods to advertise their services such as spam e-mail messages and text messages, and posters on roadside trees and electric poles (ibid.).
Members of the government are also saying that it needs to do more to protect people from loan sharks (The Korea Times 22 Feb. 2007) According to The Korea Times, Finance-Economy Minister Kwon O-kyu, who is also deputy prime minister, says that a "state-initiated social safety net" is necessary to protect the many Koreans who are indebted to private moneylenders charging extremely high interest rates (22 Feb. 2007). In addition, Vice Finance-Economy Minister Chin Dong-soo was reported as saying that the government must prevent loan sharks from taking advantage of people with low incomes by charging interest rates over the legal limit (The Korea Times 22 Feb. 2007). The Ministry of Justice is reporting that the yearly interest rate limit will "likely" be reduced to 40 percent (ibid.).
[1] Immigration and Refugee Board of Canada, South Korea: Nature and extent of loan-sharking; protection available for victims of loan sharks, 11 April 2007, KOR101977.E, available at:
The same source provides the following information[2]:
About 520,000 people, or 1.3 percent of South Korea’s population, were believed to have borrowed money from loan sharks last year, a survey showed Tuesday.
They borrowed an estimated 6.8 trillion won (US$6 billion) from unregistered lenders at the end of last year, according to the survey of 5,000 people aged between 19 and 79, conducted by the Gallup Korea.
The maximum interest rate that private lenders can charge customers was lowered to 24 percent per annum in February.
But some loan sharks charge as much as 120 percent, according to the Financial Services Commission (FSC), which commissioned the survey.
Men aged between 40 and 60 were believed to be the major customers of illegal private lending as they desperately needed money for business or livelihood-related expenses, according to the survey.
The FSC said it will further tighten the rules on illegal private lending, which can exert a considerable burden on people.
Earlier this month, the FSC said it will gradually cut the maximum legal lending rate to 20 percent per annum.
[2] “About 520,000 People Believed to Have Used Money from Loan Sharks in 2017,” The Korea Bizwire, 23 October 2018,
I note the following:
To put an end to […] illegal loan practices, the Seoul Metropolitan Government will be cracking down on 70 enterprises suspected of carrying out illegal lending activities during a two-month period from July 9 to September 7.
The city will be working closely with the Financial Supervisory Service to impose strong penalties against money lenders that have broken the law.
Officials will be looking for money lenders that charge illegal interest rates far exceeding government regulations, as well as illegal practices that occur in the process of collecting the debt.
Money lenders will be fined, their operations suspended or even have their business licenses cancelled if found to have broken the law.
The city government revealed an investigation into 103 money lenders was carried out earlier in the year between February and April, in which 40 entities were fined, 15 were ordered to suspend operations for a given period, and four businesses had their license cancelled.
In all, a total of 91 administrative actions were issued against unlawful businesses.
Debtors who feel they have fallen victim to such illegal money lending services can call for help by reporting illicit activity via the city’s website at or by calling the Dasan Call Center at 120.[3]
[3] “Government to Crack Down on Illegal Loan Sharks,” The Korea Bizwire, 10 July 2018,
Findings in relation to s.36(2)(a) of the Act
As noted, [the applicant] claims a fear of violent harm from Korea-based networks affiliated with the loan sharks from whom he borrowed in Australia. The harm he has described, which includes physical violence to him and his family, amounts to persecution.
[The applicant’s] claimed fear of being persecuted in Korea does not relate to any of the five reasons cited in s.5J(1)(a) of the Act. Rather, it is a fear of being harmed individually, by a criminals in Korea with links to criminals in Australia, for reasons of his individual failure to act pursuant to a specific financial contract between himself and them.
For this reason, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
I find that the Republic of Korea is the receiving country in the present case.
Relevantly, 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).
"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.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
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.
[The applicant] claims to face a real risk of significant harm in Korea at the hands of criminal money lenders, in the form of arbitrary deprivation of life; torture; cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
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.
I have concerns about [the applicant’s] delay in seeking Australia’s protection, given that the circumstances allegedly giving rise to his current protection visa application evidently arose more than five years ago, including the circumstances of the lenders allegedly contacting his family in Korea. I have considered his claim about not having known that people could apply for protection here unless they are boat people. I find this claim somewhat implausible given that [the applicant] has spent so much time in the company of Korean-speaking migrants and/or visitors here. [The applicant] did not give a satisfactory explanation for delay, but ultimately it does not undermine the credibility of the main facts in this case.
[The applicant’s] claims are, with the exception of his evidence about dealing in stolen property, entirely unsupported. However, on examination of the facts in this case, I am prepared to accept that there is a ring of truth to a number of them. I accept that [the applicant] and his brother borrowed money from multiple sources in the earlier part of this decade to set up the brother’s [business] in [Suburb 1]. I accept that they borrowed a sum of money on usurious terms from loan sharks with contacts and a network back in Korea. I accept that the [business] did not go well and that [the applicant] and his brother were at least for some time unable to meet the conditions of loans to them, in particular the loan from the [Australian]-based, Korea-linked loan sharks.
I accept that [the applicant] received pressure from the loan sharks here in [Australia], and that his wellbeing might have been verbally threatened on occasions, but on the evidence before me I do not accept he suffered any violence from loan sharks in Australia since taking out the loan over half a decade ago. Whereas I can accept that violent action might have been threatened or intimated, I give more weight to [the applicant’s] evidence to the effect that he has not suffered violence from the lenders over the many years since he took out the loan.
I also accept that [the applicant] entered into an arrangement with the loan sharks around five or six years ago to undertake criminal activities in order to help repay what he and his brother still owed on the loan with interest. I find that this led [the applicant] into a career of criminality that was interrupted by charges, conviction and detention in 2018.
It is hard to conclude one way or another whether [the applicant’s] liabilities in the loan are resolved, as I find he has been frequently disingenuous with some of the facts in this case. For example, he spoke inconsistently about not knowing he was doing anything wrong in his “selling” of bank accounts to repay his debts. On the evidence he provided, I am unable to accept that [the applicant] ever believed he was acting within the law when he agreed to undertake activities involving the “selling” of bank accounts for the loan sharks. I am confident on the evidence before me that the claim about not knowing he was acting illegally in Australia is disingenuous.
On the evidence before me, I do not believe that [the applicant] has cut ties with his family to protect them from being located and implicated by the loan sharks’ networks in Korea, because he gave evidence of the loan sharks having already contacted his family some years ago and having proposed ways for the family to help repay the loan. A subsequent cutting of ties with the family would not logically have the desired effect on that situation and, in fact, might put them in more danger. Ultimately, on the facts before me, I do not accept that [the applicant] is out of communication with his family. In coming to this finding, I give some weight to his having said at the hearing that if he returns to Korea his family will raise funds to help him repay his debts. I note that he distanced himself from this position a few moments later, but in my view this was an unreliable revision of his claims. In particular, I do not accept on the evidence before me that [the applicant] is unaware of his brother’s circumstances and whereabouts. Whereas [the applicant’s] position is that he is all alone in his predicament with the lenders and cannot be helped by his extended family, I am not satisfied that this is a reliable claim. Ultimately, I am not satisfied on the basis of [the applicant’s] evidence that he is, or would be, unable to obtain help from his family in Korea.
I am prepared to accept that [the applicant] has not fully repaid the loan However, I do not accept on the evidence before me that the loan sharks in Australia are trying to coerce [the applicant] into returning to Korea. Meanwhile, I find that [the applicant’s] desire to remain in Australia is incongruous with his account of the unhappy and allegedly unresolved relationship he has with the loan sharks here in Australia. When he says that if allowed to remain here he will report the loan sharks to the police and be satisfactorily protected by authorities here, his assertions strike me as being far-fetched and fanciful. I note and give weight to the fact that he never tried to report the loan sharks and their allegedly criminal activities to Australian authorities in the past.
Overall, I give weight to the independent country information about the authorities willingness and ability to crack down on unscrupulous lending practices and associated intimidation and violence in Korea. [The applicant] himself said that the authorities are willing and to some extent able to assist and protect citizens from loan sharks in that country, adding that he feared being, essentially, a random exception to the capacity of the state to protect him. [The applicant] did not satisfactorily explain why he feels confident that reporting the loan sharks to Australian authorities whilst here would give him so much more protection than reporting them to Korean authorities after returning to that country.

Regarding the s.36(2B)(b) question of protection by “an authority of the country”, I have sought guidance provided in a number of cases decided by the Australian courts, which have found that the receiving country is not required to guarantee the safety of its citizens from harm caused by non-state persons.[4]
[4] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26]. See also MIMA v Thiyagarajah (1998) 80 FCR 543 at 566-7, MIMA v Prathapan (1998) 86 FCR 95 at 104-5 per Lindgren J, Burchett & Whitlam JJ agreeing. This aspect of Thiyagarajah was not disturbed by the High Court decision in NAGV & NAGW v MIMIA (2005) 222 CLR 161.
In MIMA v Respondents S152/2003 Gleeson CJ, Hayne and Heydon JJ observed that ‘no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence’.[5] Justice Kirby similarly stated that the Convention does not require or imply the elimination by the state of all risks of harm; rather it ‘posits a reasonable level of protection, not a perfect one’.[6]
[5] (2004) 222 CLR 1 at [26].
[6] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [117].
What is required for the purposes of Article 1A(2) has been described in several ways. The joint judgment in S152/2003 refers to the obligation of the state to take ‘reasonable measures’ to protect the lives and safety of its citizens, including ‘an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system’,[7] or a ‘reasonably effective police force and a reasonably impartial system of justice’,[8] indicating that the appropriate level of protection is to be determined by ‘international standards’, such as those considered by the European Court of Human Rights in Osman v United Kingdom.[9] Thus, an unwillingness to seek protection will be justified for the purposes of Article 1A(2) where the state fails to meet the level of protection which citizens are entitled to expect according to ‘international standards’.[10]
[7] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26].
[8] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [28].
[9] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [27], citing Osman v United Kingdom (1998) 29 EHRR 245.
[10] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [27]-[29].
While the joint judgment in S152/2003 gives support to the use of ‘international standards’ as a benchmark of adequate protection levels, it does not necessarily require an administrative decision maker to identify and specify the ‘international standards’ against which to assess a particular country’s responses to a claimed fear of persecution by non-state agents. In MZRAJ v MIMIA, Heerey J stated that:
[t]he ratio decidendi of S152/2003 does not include the proposition that, in considering a claimed fear of persecution by non-state agents where the issue of effective protection arises, there will be jurisdictional error unless the Tribunal identifies, and specifies the content of, “international standards” of protection and matches the law enforcement machinery of the state in question against those standards.[11]
[11] [2004] FCA 1261 (Heerey J, 29 September 2004) at [26].
The High Court in S152/2003 found it unnecessary to consider what the relevant standards might require or how they would be ascertained, and courts have commented on the difficulties in identifying and defining their practical content.[12]
[12] See MZ RAJ v MIMIA [2004] FCA 1261 (Heerey J, 29 September 2004) at [26]-[33]; S1573 of 2003 v MIMIA [2005] FMCA 47 (Smith FM, 4 February 2005) at [30]-[34].
Having considered all of the relevant information before me, I find that [the applicant] owes money to the loan sharks from whom he borrowed in [Australia] and has not repaid them in spite of having spent years raising money through criminal activities proposed by them. I accept that the loan sharks here have networks in Korea. I accept that such networks use violence and threats of violence to enforce their loan contracts and that [the applicant] may face coercion and intimidation from the lender’s network upon his return to Korea. However, I am satisfied on the basis of some of the information [the applicant] provided orally and also on the basis of independent country information cited above, that [the applicant] could obtain, from an authority of the Republic of Korea, protection such that there would not be a real risk that he will suffer significant harm: s.36(2B)(b).
Having considered all of the evidence in this matter in its entirety, I am not satisfied that I have 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 [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2018] AATA 5077

22 November 2018

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