1834727 (Refugee)

1834727 (Refugee) [2019] AATA 4372 (5 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1834727
COUNTRY OF REFERENCE:                  Korea, Republic Of
MEMBER:Tania Flood
DATE:5 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 April 2019 at 1:31pm
CATCHWORDS
REFUGEE – protection visa – South Korea – complementary protection – fears harm from loan sharks – delayed protection visa application – delayed raising claim – inconsistent evidence – credibility issues – difficult witness – applicant not disadvantaged by quality of interpreting services – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 26 November 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Korea, Republic Of (Korea), applied for the visa on 12 November 2018. The delegate refused to grant the visa on the basis that the applicant’s fear of persecution is not for any of the reasons provided in subsection 5J(1)(a) of the Act and the applicant could obtain from an authority of the country protection such that there would not be a real risk that he will suffer significant harm as outlined in paragraph 36(2)(b) of the Act.
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, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself 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.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 issue in this case is whether there is a real chance the applicant will suffer serious harm on return to Korea for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Korea there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
In a statement provided in support of his application for a protection visa the applicant claims:
He is a South Korean citizen. He is divorced with two children who live with their mother in Australia.
He completed his schooling and University degree as well as compulsory military service in South Korea.
In 1999 he formed an [business] which he ran until 2007. In 2007 he converted the business into a private limited company [and] served [in a senior position] until October 2010.
Between November 2010 and July 2014 he did not work and was supported by his church community.
When running his business he was given credit from the banks to buy goods from vendors. In 2007/2008 due to the global financial crisis he started incurring losses. In 2008 he incurred a significant loss of [money]. He was forced to borrow money from friends and relatives.
Due to financial stress and fear of bankruptcy he and his wife decided to divorce in 2008.
During that period of stress he was introduced to a private money lender, Mr [A] and he borrowed money on a high interest [rate].
The economic situation further worsened and he could not repay Mr [A]. He started sending his people to apply pressure on him and his family. He later learned that Mr [A] has a criminal and mafia gang. His wife moved to [Country 1].
He was forced to close his business in 2010 and his home and properties were seized for his bank loans. He understood that it was done at the instigation of Mr [A].
In November 2010 Mr [A] summonsed him to a meeting at [which] he attended with his goons. When he arrived the goons took him to their place and assaulted him and threatened him to repay the money. They demanded he pay off his loan by working for them on their illegal activities.
In June 2011 Mr [A] was arrested and imprisoned until February 2012. During that period he was forced to engage in illegal money lending by Mr [A]’s associate Mr [B].
In October 2011 he managed to escape from them with the help of a friend Mr [C] whom he met while in the captivity of Mr [A]’s people. He escaped and went to [a] Church in Hwsung and sought help from Pastor [D]. The Pastor helped him to stay in the church for protection.
When Mr [A] was released from jail he managed to find him and again confined him to illegal detention and forced him to work for him. In November 2012 he managed to escape him and went to the police station to inform them about his and his Associates illegal activities. However, the police did not press any charges and released them in December 2012.
During that time Mr [A] detained his friend [Mr C] and tortured him to reveal his whereabouts. The gang found out where he was hiding and came to pick him up but he escaped and went to Pastor [D] for help. During that time his friend [Mr C] committed suicide. He stayed in the church from January 2013 until the police caught him at the church in April 2014. Mr [A] and Mr [B] told the police that he is a fraud who engaged in illegal money lending activities. Mr [A] is a powerful person who has connections with criminal gangs, underworld thugs and the police because he runs a mafia type business. In the meantime Mr [A] continued to accuse him of owing him money and Mr [B] considers he has caused him damage to the value of [specified]. These two people continue to want revenge on him.
In 2011 when Mr [A] was in jail he thought his problem would be solved and he invited his wife to come back to South Korea and they remarried.
In May 2013 the court found him guilty of engaging in fraudulent financial gain and given a suspended sentence.
In Korea, people who get a suspended sentence have to attend the probation office monthly. He completed 120 hours of community service but was unable to attend all the visits to the probation office. He is worried they might cancel the suspended sentence and he will be required to serve a jail sentence for breach of the condition.
He formed the view that Mr [A] and Mr [B] would not allow him to live in South Korea and Pastor [D] advised him to leave the country.
He applied for a [temporary] visa to Australia and afterwards obtained [another temporary] visa. In the meantime the gang approached his wife and started harassing her. His wife divorced him again in May 2015 in order to protect herself and the children. She later also came to Australia on a [temporary] visa and then applied for a [another temporary] visa in September 2015.
In 2017 his [visa] expired and he became unlawful. He did not know that he could seek protection on the basis of his claims and he was scared to talk to anybody. In July 2018 he was detained for possessing a prohibited drug and charged. He does not know how the drug was in his possession and he was convicted with other penalty. He was then detained at [a] Detention Centre.
While in detention he contacted a migration agent who told him his claims do not fit the criterion for a protection visa and advised him to return home. He thought it would be better to return rather than be deported and this is why he told the detention centre official that he would return. He was intending to sell a business he had with his cousin to repay some of the money he owed.
However, he decided to consult another immigration agent and was advised he could seek complementary protection. He then lodged a protection visa application.
He fears that if he returns to South Korea he will face serious or significant harm from Mr [A]’s goons for the following reasons:
a.He has a debt to Mr [A] which is continually earning high interest.
b.Mr [A] and his goons think that he deceived them.
c.He may be forced to work for them on their illegal activities again.
d.There is no place or no person he can go to for help in South Korea.
e.Due to his stay in Australia he will be considered a wealthy person.
He will not be able to get effective protection from the police because Mr [A] and his people have links and connections with the police. They also have the means to find him in other parts of the country.
On 15 February 2019 the Tribunal received the following documents in support of the applicant’s claims:
-    Letter of reference from Pastor [D] and his profile
-    Statement from Mr [E], former Korean gangster
-    Statement from Mr [F]
-    Documents confirming the applicant’s property
-    Letter from Pastor [D]
-    Letter from [Senior Official] of [Named Organisation]
-    Letter from [the applicant’s] ex-wife; her photo identity document, [Country 1] visa grant and the applicant’s daughter’s birth certificate.
On 20 February 2019 the Tribunal received country information reports about organised criminal gang activity in Korea. It is submitted that there is evidence that organised criminal gangs have active or passive support from the authorities.
Tribunal hearing
The applicant appeared before the Tribunal twice; once by video link on 22 February 2019 and a second time in a face-to-face interview on 8 March 2019.
The applicant’s evidence to the Tribunal is summarised as follows:
He is a citizen of South Korea (Korea) and does not have the right to reside elsewhere. For one and a half years before departing Korea he lived in an apartment in Kyungi Province with his ex-wife and children. Prior to that he lived for about four years in Seoul. He is now divorced for a second time (he first divorced his wife in 2010 and they later reunited). His ex-wife is also residing in Australia with their children. His father is deceased and his mother and [sibling] live in [Country 1]. His [sibling] married a [Country 1] citizen about 20 years ago.
Prior to departing Korea for Australia the applicant visited [Country 2] and [Country 3] for business purposes. In about 2006 or 2007 he was granted a [Country 1] visa with [several] years validity. He explained that in 2006 or 2007 he was not yet divorced and he sent his wife and children to [Country 1] with the intention of later joining them there. He said that he was told that people were following his family in [Country 1] and that it why he did not join them there. The Tribunal pointed out to the applicant that he does not appear to have presented this information before and he replied that he supposes he wrote that down in the beginning.
The applicant testified that in 2007 his business was failing and he did not pay his taxes and for this he received a suspended sentence. In 2013 he was sentenced to [imprisonment] for involvement in illegal money lending but the sentence was suspended and he was placed on probation. In 2018 he was charged with possession of drugs in Australia but he wasn’t penalised.
The applicant testified that in 2010 his business fell into financial trouble and he borrowed money from loan sharks. He couldn’t repay the loan and the loan shark detained him and forced him to work in the illegal money lending business. He managed to escape once but they found him and brought him back to work for them. After, he escaped again and he reported the money lender to the police for his involvement in a bigger crime. However, the money lender was released from custody after a short while and they came looking for him and his friend. His friend later committed suicide due to the stress. He managed to hide away in a church in the country side and then made his way to Australia.
The applicant testified that he entered into a loan of approximately [specified] in about May 2009. He said that he put his apartment which was valued at [specified] up as surety for the loan. The loan shark was not aware that he had a tax bill and the government took the property as compensation for his non-payment of taxes. He said he has no proof of the loan and he has not repaid any of it. He said that he worked for the loan shark for about four years.
While working for the loan shark the applicant stated that he lived in dormitory accommodation. When the Tribunal pointed out he had earlier stated he was living with his family prior to departing Korea he said that he meant the family home was his registered address.
As to his escape attempts he said he first escaped in 2011 and went to hide at a church for about 3-4 months. He said that his friend was forced to tell the loan shark where he was hiding. When his friend contacted him they agreed to meet on the side of the road and that is where he was caught again by the loan shark. The Tribunal asked the applicant if it is correct that the loan shark knew he had been hiding at the church and he confirmed that is true.
The second time he escaped was in November 2012 and he and his friend went to report the loan shark to the police for his involvement in a bigger crime. He said the police detained the loan shark but he was soon released. In January 2013 he went back to hide at the same church and stayed there for a bit more than one year. While there he was caught by the police and charged over his involvement in illegal money lending. In July 2014 before coming to Australia he spent another ten days at the church.
The applicant testified that before he was detained by the loan shark he went to the police to report the loan shark after being assaulted. He said the police investigated but the loan shark presented them with a certificate for the money he borrowed and they did not believe him.
The applicant testified that between June 2011 and January 2012 Mr [A], the loan shark, was imprisoned but for reasons unrelated to him.
As to what happened when he was arrested by the police at the church he said Mr [A] sued him for not paying back the loan. He said the court sent him a letter at attend court but he wasn’t at his home he was at the church. The police came and he was taken to a holding cell. He said he was interviewed by the police but Mr [A] cancelled the law suit. He said they were just using the court system to locate him. Later he had to attend court in mid-2013 in relation to the charges over illegal money lending.
When asked what happened to My [A] over the crime he reported he said he knows he was released but was then required to attend court. He said the case went from 2013 to 2015 on appeal. He said that in 2015 Mr [A] was jailed for one year in connection with the matter he reported.
The applicant testified that if he returns to Korea the people he reported to the police in November 2012, Mr [A] and others, will seek revenge and harm him. He said that he left Korea in 2014 because he feared those people. When asked why he waited until after his [visa] expired years later to raise his claims for protection he said he only learned he was eligible to apply for a protection visa after he was placed in detention. The Tribunal put it to him that he is an educated, businessman who has travelled places in the world and it is difficult to accept he was unaware he could seek protection and/or that at the very least he would not have made enquiries about his options given the fears he claims for his safety in Korea. The applicant replied that in Korea they refer to protection visas as refugee visas. He said that in Korea people think that refugees are people who come by boat or are high profile political figures. He said people don’t consider ordinary people like him a refugee.
On 28 February 2010 the Tribunal received a further statement from the applicant in which he claims:
When asked where he lived in Korea during the first hearing he provided his registered address because that is the address he listed in his protection visa application and he cannot remember all the addresses where he has stayed.
He is worried that there may have been a misunderstanding during the first hearing about the sale of his property. He said in Australia people usually buy and sell houses by way of auction. However, in Korea auctioning a house or apartment has a bad meaning. In Korea it means that the house is being confiscated because the person did not repay the loan.
He ran away to [a] Church in Hwaseong, Gyeong-gi Province in Korea several times since 2011. He stayed in the church from January 2013 for a year when he heard that “they” were released from custody. He escaped from their actual restriction or surveillance twice in October 2011 and July 2014.

He reported [Mr A], [Mr B], [Mr G], [Mr E], and other gangsters to the police in November 2011 and his imprisonment for a while around June 2011 is not relevant to him. In November 2012 they were caught in the act by police officers. He expected them to be jailed after being held in custody in the police detention centre. The interpreter during the first hearing kept interpreting ‘custody status’ as ‘jailed’ and he attempted to explain more about this to avoid misunderstandings. He reiterates that they were released from custody, not from jail.
The interview time was long and there were a lot of misunderstandings in the meaning delivered through interpretation. He kept explaining to clarify the definition of the words.
During a second hearing before the Tribunal the applicant was presented with a summary of the key claims made in the first hearing and the timeline of events and he agreed the Tribunal’s reading of the account was essentially correct.
When asked for further details about his claimed arrest in Korea the applicant stated that Mr [A] sued him for not paying back his loan and he was required by letter to attend a court hearing. He said he was staying at the church at the time and the police came there to collect him and he was taken and placed in a holding cell. He said he was interviewed by the police but then freed because Mr [A] cancelled the law suit. He said Mr [A] was just using the court system to locate him. He later confirmed that this occurred in 2014.
The Tribunal asked when he was charged for his involvement in illegal money lending and he said it was around the end of May or early June 2013. He said that is when he was sentenced to probation and afterwards he went back to stay at the church.
As to what happened to Mr [A] as a result of his report to the police in November 2012 the applicant said he and others were initially detained in a cell but were soon freed. He said there was a court case running from 2013 to 2015 and that Mr [A] was imprisoned for one year in 2015 for the matter he reported.
The Tribunal put it to the applicant that he claims to fear Mr [A] because he is powerful and connected to police however his own evidence is that he was imprisoned twice. The applicant maintained that Mr [A] has police connections. He said he was caught and later freed but because the matter ended up in court he could not do anything about that. He said he has been implicated in many cases but nothing was done to him. Further, the Tribunal put it to the applicant that it is difficult to believe he was brave enough to report Mr [A] to the police given what he claims he is capable of. The applicant replied that he thought his complaint would be confidential.
The Tribunal put it to the applicant that it is difficult to believe he went to hide a second time at the church given he was located nearby the church the first time and confirmed to the Tribunal previously that the loan shark knew he had been hiding there. The applicant stated that what he said at the first hearing might have been misinterpreted. He said he met his friend by the roadside and that is where he was apprehended.
The Tribunal put it to the applicant that his written evidence indicates he went to stay at the church twice whereas his oral evidence is that he sought refuge there three times. Again the applicant put this down to misinterpretation. He stated that he escaped to the church twice but the last time he went there voluntarily before he departed to Australia.
The Tribunal was requested to take oral evidence from four witnesses during the hearings. The Tribunal attempted to call the two overseas witnesses but the calls went unanswered (see below). The Tribunal took oral evidence at the second hearing from the applicants ex-wife and cousin.
The applicant ex-wife testified that she and the applicant divorced twice; once in 2010 and again in 2015. She said that in 2010 when the applicant went bankrupt people visited them at home and she felt threatened. She said that she went to [Country 1] and when she returned in 2012 she thought the situation would have resolved but again gang members and police visited their home. She said she wasn’t really living together with her ex-husband but he would visit them at home sometimes. She said she is scared to return to Korea for this reason but she has not applied for a Protection visa in her own right. She confirmed her ex-husband owes money in Korea and stated that if he doesn’t pay it back the threats will start again. She said she is unsure if her ex-husband faced and legal proceedings in Korea but a probation officer did visit them at home.
The applicant’s cousin testified that he returned to Korea in January 2019 because his uncle was sick and during that visit he met with Mr [E] and asked him to prepare a statement in support of the applicant’s claims. He confirmed that the applicant left Korea because he faced problems with a gangster and reported him to the police. He confirmed that the applicant was forced to work for the gangster and faced legal charges over this.
FINDINGS AND REASONS
Country of reference
The applicant has produced a copy of a Republic of Korea passport which verifies his claimed identity and nationality. In the absence of any information to the contrary the Tribunal accepts he is a national of Korea and has assessed his claims accordingly.
Past harm
At the outset the Tribunal acknowledges that the applicant raised issues about the quality of the interpretation in the first hearing. These concerns were raised in a written statement produced immediately prior to the second hearing and verbally at the second hearing. The Tribunal pointed out to the applicant that it is concerning that he did not raise these problems throughout or before the conclusion of the first hearing. The applicant’s representative requested that extra time be granted after the second hearing for specifics of the interpreting problems to be presented in a written submission. The Tribunal agreed to leave the matter open for two weeks until 22 March 2019 for the applicant to respond to these and any other concerns discussed at hearing. On 21 March 2019 the applicant’s representative requested an extension of time to make submissions until 26 March 2019 which the Tribunal granted. On 26 March 2019 the applicant’s representative wrote to the Tribunal stating that the applicant had instructed him to provide attached reports regarding Mr [A]’s profile. No submissions were received in respect of the claimed problems with interpretation during the first hearing and nor was further time requested to do so.
The Tribunal found the applicant to be a difficult witness at both hearings. His evidence about various aspects of his claims was often disjointed, confused, inconsistent and difficult to follow. Noting this, the Tribunal summarised its understanding of the key aspects of the claims presented during the first hearing at the commencement of the second hearing and the applicant agreed, with a few exceptions, that the Tribunal’s reading of his claims was essentially correct. The applicant did not suggest that there was any problem with the quality of the interpreting during the second hearing.
Having regard to these circumstances, the Tribunal is satisfied that the applicant was afforded the opportunity to correctly state and explain his claims and that he was not disadvantaged by the quality of the interpreting services provided during the first hearing.
On the available evidence the Tribunal accepts the applicant was a businessman in Korea. Having considered his claims, and information about the state of the global economy in 2007 and beyond, the Tribunal accepts that his business may have come under financial pressure around 2007/2008 and that subsequently he went bankrupt. Despite the lack of corroborative evidence, based on the consistency and plausibility of his claims in this respect, the Tribunal accepts the applicant may have borrowed money in 2009 from a loan shark, Mr [A], and failed to repay the amount owed. The Tribunal is also prepared to accept in the circumstances that the loan shark put pressure on the applicant, including physically assaulting him in 2010, in order for him to repay his debts.
The Tribunal also accepts that the applicant was the subject of legal proceedings in Korea on two occasions. Based on his oral and written evidence, the Tribunal accepts he received a suspended sentence for non-payment of income tax in 2007 and a suspended [prison] sentence in 2013 for involvement in illegal money lending. The Tribunal accepts the applicant may not have complied fully with the terms of his probation following the 2013 sentence and that he fears there may be legal ramifications for this reason if he returns to Korea.
However the Tribunal has concerns in respect of other key claims raised by the applicant. These concerns are addressed below:
The applicant’s evidence is that sometime around the end of 2010 he was forcibly abducted by Mr [A]’s goons and made to work off his debt in their loan shark business. In his oral evidence he claims he was held against his will by the loan shark and forced to reside in dormitory style accommodation in the years prior to his departure from Korea to prevent him fleeing.
At the commencement of the first Tribunal hearing the applicant advised that for one and a half years prior to his departure from Korea he lived in an apartment with his wife and children and before that at another residential address in Seoul for about four years. Later in the hearing when he was asked how long he was forced to work for the loan shark he said it was for about four years prior to coming to Australia. During that time he said he lived in the loan shark’s dormitory accommodation. When the inconsistency of his evidence was raised with him at hearing he said that when asked for his last address in Korea he provided his official address. In a further written statement the applicant repeats this claim. During the second hearing he claimed to have lived in various different places at different times, namely the church, his home, the loan sharks dormitory.
The Tribunal has considered the applicant’s responses but as discussed with him at hearing it considers that if he had been forced to live against his will in secured accommodation by the loan shark for a significant amount of time he would have mentioned this in his earlier evidence when asked where he was living despite that he might have maintained a registered address. The Tribunal considers this calls into question his claim to have been abducted and held in captivity by the loan shark.
In forming the above view the Tribunal has also had regard to the claimed circumstances in which the applicant went to work for the loan shark. The applicant’s written and oral evidence is that he was abducted, held against his will and forced to engage in illegal money lending activity by Mr [A] when he failed to meet his loan repayments. He maintained these claims throughout the entirety of the first Tribunal hearing. Conversely during the second Tribunal hearing the applicant conceded that he was not 100% forced to work for the loan shark. He said he did not want to work for them but as his house had been sold at auction to repay the government outstanding taxes and he didn’t have any money he would have starved otherwise.
Furthermore, the applicant’s evidence is that he was arrested, charged and sentenced in Korea for his involvement in illegal money lending. Nowhere in his evidence has he claimed to have denied or fought these charges in the court system and this further persuades the Tribunal that he was not forced into this line of work entirely against his will. While it may not have been his preference to work for a loan shark the Tribunal considers the evidence points to him voluntarily taking up the role given that he had debts to pay and no other means of supporting himself after the collapse of his business. On the available evidence the Tribunal does not accept the applicant was abducted and forcibly held against his will and made to engage in illegal money lending. It follows that the Tribunal also does not accept the applicant’s claims to have escaped from detention on two occasions.
Notwithstanding the above, the Tribunal also finds the applicant’s account of his escape attempts illogical and implausible. For instance, in relation to the first escape attempt in 2011 he says he went to hide at a church for about three to four months but was found by the loan shark after his friend was forced to reveal his whereabouts. His evidence to the Tribunal during the first hearing, which he later disputed during the second hearing, is that the loan shark was aware he had been staying at the church near to where he was apprehended. Despite his attempts to correct his evidence during the second hearing the Tribunal is of the view there was no confusion around his earlier evidence. When the Tribunal asked for clarification as to whether the loan shark was aware he had been hiding at the church the first time he clearly stated that this was correct. The Tribunal considers he later changed his evidence in response to the Tribunal’s questioning of his decision to return to the same location a second time.
On another occasion the applicant claims he stayed at the church from January 2013 for a year after he reported the loan shark to the police over criminal activity. On a third occasion he said he escaped from “restriction or surveillance” in July 2014 when he again went to the church for a few days just prior to coming to Australia. The Tribunal considers his evidence of seeking sanctuary at the same church for a year in 2013 and again in 2014 implausible given he claimed the loan shark knew he had fled there previously. If the loan shark was intent on locating the applicant and harming him for any reason the Tribunal considers he/they would have looked for him at the church. In the Tribunal’s view it is implausible that the applicant returned to hide at a location known to the loan shark. The Tribunal does not accept the applicant needed to, or did attempt to escape the loan shark as claimed.
In forming this view the Tribunal has also placed weight on the fact the applicant claims to have escaped the loan shark twice and despite being in possession of a valid visa to [Country 1] he did not depart Korea until much later. After the first Tribunal hearing the applicant produced a copy of passport pages which include a visa to [Country 1] issued [in] 2008 and with an expiry date of [2018]. The available evidence, including testimony received from the applicant’s ex-wife at hearing, is that she and the applicant’s two children were residing in [Country 1] until 2015 and his mother and [sibling] who has lived in [Country 1] for about twenty years were also there. The Tribunal put it to the applicant that it is difficult to understand why he did not utilise the opportunity in 2013 to flee Korea to [Country 1] in order to avoid being harmed by Mr [A] and/or others. The Tribunal acknowledges his claim to have had no money to organise his travel but his own evidence is that the church assisted him financially to travel to Australia. There is no reason to assume, if this is correct, that the church would not have similarly assisted him to travel to [Country 1].
During the first Tribunal hearing the applicant introduced a claim for the first time that his wife found out that Korean gang members were observing her movements in [Country 1] and this is why he could not go there. The Tribunal has considered his response as to why this was not previously mentioned but does not consider he has adequately explained the omission of such a significant detail. The Tribunal acknowledges that the applicant’s ex-wife’s testimony at hearing supports the claim that she saw a gang member from Korea hanging around in [Country 1]. However, the Tribunal considers this evidence could easily have been corroborated between the applicant and his ex-wife. The applicant’s children are both residing in Australia with their mother and the Tribunal considers it likely that the applicant’s ex-wife is willing to help him to remain in Australia in order for their children to be close to him. Given the late introduction of this claim and the fact it appears the applicant could have called upon the church to help him to travel to [Country 1], the Tribunal does not accept the reasons given for him not utilising this opportunity to ensure his safety in [Country 1] at that time. That he did not utilise this opportunity, in the Tribunal’s view, calls into question key aspects of his claims and his claimed fear of the loan shark.
The Tribunal also finds it problematic that the applicant, who claims to have fled Korea In August 2014 after being forced to live in hiding for an extended period of time out of fears for his physical safety, waited until 12 November 2018 to apply for a Protection visa in Australia. In this regard the Tribunal finds it significant that the applicant remained unlawfully in Australia from 16 March 2017 when his [visa] ceased and only applied for a Protection visa after being taken into immigration detention following a criminal charge in Australia.
When this was discussed with the applicant at hearing he claimed not to know that his situation could result in him being considered a refugee. The Tribunal put it to him that he is an educated businessman who was travelled abroad on different occasions and in the circumstances it is difficult to believe he would not have even made enquiries about possible legal options to remain in Australia especially given he found himself in the precarious position of being an unlawful citizen at risk of deportation to a country where he claims to fear serious harm. The Tribunal considers the delay and circumstances in which the applicant applied for the Protection visa reflects poorly on his credibility and also calls into question the veracity of many of his claims.
The applicant also claims that he and a friend informed the police about Mr [A] and others involvement in criminal activity in November 2012. He claims that soon after his friend committed suicide due to the stress of the situation. Again, the Tribunal considers that had the applicant informed on Mr [A] and his associates and genuinely feared for his life he would have utilised the opportunity to go to [Country 1] to avoid being harmed. For this reason, and due to the credibility concerns discussed above the Tribunal is not prepared to accept the applicant made a complaint to the police about the criminal activities of Mr [A] or others.
The Tribunal has had regard to the letter provided by Pastor [D] which indicates the applicant stayed at his church a couple of times because he had problems with a loan shark. The Tribunal notes that the identification documents provided for the Pastor variously spell his name as [Spelling 1] and [Spelling 2], which both differ to the spelling of the Pastors name as it appears in his letter of support. The Tribunal was requested to contact the Pastor by telephone to verify the information provided and attempted to do so at hearing. However, the Tribunal’s calls went unanswered. The Tribunal acknowledges the Pastor’s letter provides some support for his claims but without being able to further discuss the content of the letter with the Pastor and verify his identity the Tribunal cannot be certain the letter was officially obtained or that the information contained in the letter is anything other than what was reported to the Pastor by the applicant himself. The Tribunal has afforded no weight to this evidence.
The Tribunal also has before it a letter from Mr [E], a former Korean gangster who allegedly worked for Mr [A] which on the face of it lends some support for the applicant’s claims. At the applicant’s request the Tribunal also attempted to contact Mr [E] by telephone during the hearing but the calls again went unanswered. The Tribunal has taken account of Mr [E]’s letter, but was unable to test its veracity at hearing. In the case of this witness the Tribunal finds that significant given his claimed background. Therefore the Tribunal cannot be confident that the evidence provided in his letter is reliable. The Tribunal has afforded no weight to Mr [E]’s evidence.

Similarly, the Tribunal has considered the written and oral evidence of the applicant’s cousin and ex-wife which also lends some support for the applicant’s claims. However, the Tribunal notes and finds it significant that these witnesses have an interest in the outcome of this matter due to their relationship with the applicant. In the circumstances, the Tribunal’s abovementioned concerns about the applicant’s credibility are not outweighed by their evidence.
The Tribunal has also considered the evidence produced in respect of Mr [A]’s profile in the pre and post hearing submissions, namely photographs of a person purported to be Mr [A] with various associates and a photograph in which he is purportedly seen torturing a victim. As discussed with the applicant at hearing the Tribunal does not agree that the latter photograph is proof of Mr [A] torturing a victim as it is not possible to determine what is captured at the rear of the photograph. Similarly the photographs and documentation provided in the post hearing submission merely depict a person who is purported to be a Mr [A] meeting with others in either a social or business setting. The Tribunal has given this evidence no weight in deciding the matter.
In conclusion, for all the above reasons, the Tribunal accepts the applicant is indebted to Mr [A] and finds that he agreed to work for him in his money lending business when he could not repay his debt. The Tribunal accepts the applicant was subsequently charged for his involvement in illegal money lending and given a suspended sentence with probation as claimed. However, for all the above reasons the Tribunal does not accept that the applicant was forced into illegal money lending against his will or was held in captivity by the loan shark. Nor does the Tribunal accept he needed to or did escape from the loan shark on two or three occasions. Nor is the Tribunal prepared to accept that the applicant reported Mr [A], Mr [B] and/or others to the police in November 2012 for involvement in criminal activities.
On the available evidence the Tribunal finds it more likely that after being charged and given a suspended sentence with probation for involvement in illegal money lending the applicant considered it prudent to depart Korea.
Future harm
The Tribunal accepts that the applicant has an unpaid debt to a loan shark and that he was physically assaulted by the loan shark’s goons on one occasion in 2010. Given the ongoing debt the Tribunal accepts that if the applicant returns to Korea and the loan shark learns of his presence in the country he may once again pressure him to repay his debt. The Tribunal accepts this could entail threatening behaviour and even physical coercion.
On the applicant’s evidence he was physically assaulted in 2010 and he claims when he reported it to the police they investigated his complaint but ultimately went with the weight of evidence produced by the loan shark about his debt and took no further action. However, according to the applicant the police took action against the loan shark on another occasion for reasons unrelated to him, possibly over the death of a person, for which he was arrested and jailed.
In submissions to the Tribunal the applicant’s representative references four news articles which he suggests is evidence that organised criminal gangs have active or passive support from the authorities. The Tribunal agrees that the articles indicate that organised crime exists in Korea. However, just one of the articles referenced names a provincial official as being suspected of maintaining a close relationship with an organised crime gang. On the other hand, the Tribunal has had regard to independent country information which provides the following:
A 2017 US State Department report on Human Rights states that the Korean National Police Agency (KNPA) under the supervision of the Ministry of the Interior is responsible for internal security. Civilian authorities maintained effective control over police and the government had effective mechanisms to investigate and punish abuse and corruption. The KNPA and Justice Ministry did not report any acts of impunity involving security forces during the year. The law provides for an independent judiciary and the government generally respected judicial independence and impartiality.
Amnesty International’s annual report 2017-2018 states that there have been advances in policing in the Republic of Korea. Further, there are mechanisms for dealing with and combatting corruption.
An Immigration and Refugee Board of Canada advice ‘South Korea: Nature and extent of loan-sharking; protection available for victims of loan sharks’ which can be found on Refworld (UNHCR) provides the following:
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 report also states that the NPA announced a crackdown in January 2007, 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.).
An article which appeared in The Korean Herald on 22 April 2012 ‘Loan shark crackdown gets massive response’ indicates ongoing efforts are underway by the authorities to deal with problems associated with private money lending.
The above information was discussed with the applicant at hearing and the Tribunal put it to him that in the event he encounters any problems with Mr [A] and his associates on return to Korea it appears he will be able to avail himself of state protection. The applicant replied that in Australia the law is reality whereas in Korea he will probably be ignored if he seeks help. The Tribunal pointed out to the applicant that his evidence is that the police acted on his complaint in 2010 and on another occasion Mr [A] was imprisoned for criminal behaviour. He responded that this case was unrelated to his circumstances.
The Tribunal has considered the applicant’s responses but remains of the view that the above country information and indeed the applicant’s own evidence supports that the Korean police are motivated and capable of providing an effective level of enforcement, deterrence and protection against illegal money lenders or loan sharks including to people who are subject to violence and extortion in the course of debt recovery. On this basis the Tribunal is satisfied that the applicant can access effective and durable protection measures in the event he is threatened by Mr [A] and/or his associates, or pressured to work for him or physically harmed in any attempts to recover the debt.
The Tribunal notes and has also considered the applicant’s claim to have breached his probationary requirements prior to coming to Australia. If indeed this is the case, and the applicant is required to answer for this on return to Korea the Tribunal is of the view that any punishment he might receive will be in accordance with Korean law and will not be because of any systematic or discriminatory conduct directed at the applicant. Further, the Tribunal notes that the applicant stated on more than one occasion at hearing that he is not afraid of going to jail. In any event, country information discussed with him at hearing indicates that there are no significant reports regarding prison and detention centre conditions that raised human rights concerns. Relevantly the Tribunal notes that the 2017 US State Department report on Human Rights states that there were no major concerns in prisons and detention centres regarding the physical conditions. Deaths in prison were generally consistent with death rates/causes nationally. There were no problems reported with access to prison facilities. The country’s independent National Human Rights Commission has access to correctional facilities to investigate reported cases of human rights violations. The Tribunal is satisfied that there is not a real chance the applicant will suffer serious harm on return to Korea if the authorities seek redress for any breach of his probationary requirements.
The Tribunal has also considered the applicant’s claim to fear harm on return to Korea because he will be considered a wealthy person after living in Australia. When asked to explain why he fears harm for this reason at hearing the applicant first queried whether he had made such a claim. He then agreed that he fears harm in Korea for this reason. When questioned further he then related this fear to Mr [A] claiming that he will probably try harder to collect the money that is owed to him if he believes he has made money in Australia. As noted above, the Tribunal is satisfied that effective protection measures are available to the applicant in Korea in the event Mr [A] or anybody else threatens or harms him in the course of collecting any money that is owed to him or attempts to force him to work for him. Given the applicant’s response to the claim generally the Tribunal is not satisfied that he genuinely fears harm from other persons in Korea for this reason.
Having carefully considered the claims individually and cumulatively, the Tribunal finds that there is not a real chance the applicant will be seriously harmed on return to Korea arising from a debt to a money lender or for any other of the reasons claimed. Accordingly, the Tribunal finds he does not have a well-founded fear of persecution if he returns to Korea now or in the reasonably foreseeable future. Accordingly the applicant does not satisfy the criterion at s.36(2)(a) of the Act.
The Tribunal has also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa) of the Act. The Tribunal notes that the complementary protection provisions provide that there is taken not to be a real risk of significant harm if 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. For the same reasons already articulated the Tribunal finds that if the applicant fears significant harm from Mr [A] or anybody else he can access protection from the police and other authorities which will reduce the risk of him being significantly harmed to a level which is below the level of a real risk. Similarly, the Tribunal is satisfied on the basis of independent country information that there is not a real risk the applicant will suffer any significant harm if he is jailed for reason of breaching his probation in Korea. On this basis 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 Korea there is a real risk that he will suffer significant harm for the reasons claimed. Accordingly the applicant does not satisfy the criterion at s.36(2)(aa) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.
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.
Tania Flood
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.
…

[2019] AATA 4372

5 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction