1908309 (Refugee)

[2024] AATA 3809

1908309 (Refugee) [2024] AATA 3809 (11 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)

APPLICANT’S REPRESENTATIVE:Mr Kris Joohyung Ahn

CASE NUMBER:  1908309

COUNTRY OF REFERENCE:                   Republic of (South) Korea

MEMBER:Kate Chapple

DATE:11 June 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the primary applicant and the secondary applicants a protection visa.

The Tribunal refers the case to the Department to be brought to the attention of the Minister.

Statement made on 11 June 2024 at 11:34am

CATCHWORDS

REFUGEE – protection visa – South Korea – fear conflict with North Korea – Australian citizen children – lengthy stay in Australia – return visits to South Korea – delay in applying for protection – referral for Ministerial Intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 417, 424A, 425, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

EVIDENCE BEFORE THE TRIBUNAL

Protection visa application

1. Protection visa application lodged 5 October 2018 setting out the primary applicant’s claims as follows (spelling and grammatical errors not corrected):

   1.1.[reason primary applicant left South Korea] I left Korea to pursue further education in Australia.

   1.2.[did primary applicant experience harm in South Korea] No.

   1.3.[did primary applicant’s attempt to move to another part of South Korea] No. Recent events.

   1.4.[what primary applicant thinks will happen to him on his return to South Korea] Current affairs in South Korea are worsening daily. The most recent updates have shown the growing tension between North Korea and the United States, now involving Russian troops. It has now become a life threatening issue where I do not wish to place my wife and three young children in a country where war is imminent. My main concern is that while there has been serious public outlash between North Korea and US, South Korea has remained comparatively silent. This is more frightening as it indicates South Korea is not attempting to reconcile and make peace but accept and contribute to the war with the US. Considering this is the most likely outcome, my impending fear is that we will not be properly protected and exposed to be being blown up by explosives. North Korea publicly states they will explode a nuclear bomb, given the proximity of North and South Korea, it is almost certain all Korean nationals will die upon impact. In my sane conscience, I cannot board my young family on a place and voluntarily enter a country like South Korea given the state it is in. Returning to South Korea means I am placing myself and my family in inevitable danger and death.

   1.5.[does primary applicant think he’ll be harmed or mistreated if he returns to South Korea] Yes. The effects of war will either result in the death or irreversible damage from nuclear bombs. Even if North Korea does not declare war directly to South Korea, the close proximity of the two countries will mean the effects of warfare will harm people in South Korea directly. Statistics have revealed the projected daily death rate is 40,000 people - if we return to South Korea, my young family and I will almost certainly become part of those statistics.

   1.6.[does primary applicant think South Korean authorities can and will protect him] No. South Korea is geographically a small country but overpopulated. It is not possible for the country to provide safe haven from war and explosives to its citizens. It is inevitable that many will die or perish from the effects.

   1.7.[reason primary applicant can’t relocate within South Korea] South Korea is geographically a small country but overpopulated. It is not possible for the country to provide safe haven from war and explosives to its citizens. It is inevitable that many will die or perish from the effects.

2. Decision record dated 20 March 2019 relating to the delegate’s refusal decision.

3. Departmental case file relating to the applicants.

   Application for review

4. Application for review lodged 5 April 2019.

5. On 22 May 2024 the Tribunal wrote to the applicants pursuant to s 424A of the Act (‘s 424A letter’), inviting them to comment on or respond to in writing information that it considered would be part of the reason for affirming the decision under review (‘adverse information’). The particulars of the adverse information are contained in the decision record of the delegate of the Minister for Home Affairs dated 20 March 2019 recording the delegate’s decision (and reasons) to refuse to grant the applicants a protection visa, and a copy of the delegate’s decision record was enclosed with the s 424A letter.

   The invitation was sent to the last address provided in connection with the review and advised that, if the applicants’ comments on or responses to the adverse information were not provided in writing by 5 June 2024, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. On 5 June 2024 the representative wrote to the Tribunal (with supporting material) as follows:

   We are instructed by the applicants to accept they no longer have merit for this appeal, and request for the Tribunal’s referral to the Minister.

7. The representative submitted the following material in support of the request:

   7.1.Letter from the representative to the Tribunal dated 5 June 2024: Request for Referral to the Minister.

   7.2.Letter from [Doctor A] to [Official A] dated 1 August 2021.

   7.3.Department of Home Affairs Evidence of Australian Citizenship records in relation to the primary applicant’s three children.

8. On 7 June 2024, the Tribunal wrote to the representative as follows:

   The Tribunal acknowledges receipt of your email dated 5 June 2024 with attachments.

   Section 425(1) of the Migration Act 1958 (‘Act’) requires the Tribunal to invite the
   applicant to appear before the Tribunal to give evidence and present arguments
   relating to the issues arising in relation to the decision under review.

   Subsection (2)(b) of the Act requires the Tribunal to invite the applicant to appear
   before the Tribunal to give evidence and present arguments relating to the issues
   arising in relation to the decision under review. Subsection (2)(b) provides that
   subsection (1) does not apply if the applicant consents to the Tribunal deciding the
   review without the applicant appearing before it.

   Please provide confirmation in writing that you are instructed that the applicants
   consent to the Tribunal deciding the review without the primary applicant and / or
   secondary applicants appearing before it.

9. On 11 June 2024, the representative wrote to the Tribunal confirming that the applicants consent to the Tribunal’s decision on the papers without hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The Tribunal notes the secondary applicants indicated in the protection visa application that they were not making their own claims for protection.

11. The Tribunal notes that s 5AAA(2) of the Act provides that it is the primary applicant’s responsibility to specify all particulars of his protection claims and to provide sufficient evidence to establish the claims.

12. In considering the primary applicant’s claims and evidence, the Tribunal has taken account of the Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.

13. The Tribunal notes the applicants have consented to the Tribunal deciding the review without the primary applicant and / or secondary applicants appearing before it.

14. Referencing paragraph 2 of the representative’s submission, the Tribunal notes the applicants concede and accept their review application in relation to the decision to refuse a protection visa cannot be successful as their claims for protection do not meet the legal requirements.

15. The Tribunal has considered the primary applicant’s claims and evidence.

16. The Tribunal notes the applicants travelled between South Korea and Australia on multiple occasions on different dates between 2006 and 2015.

17. The Tribunal notes the protection visa application was made in March 2017, around 11 years after the primary applicant and his wife first arrived in Australia.

18. The Tribunal considers the considerable delay in making the protection visa application raises serious questions as to the credibility of the primary applicant’s claims.

19. The Tribunal notes the primary applicant has not provided any documentary or witness evidence or official country information in support or corroboration of his claims.

20. The Tribunal notes that in part the primary applicant’s claims relate to the actions of states/parties external to his country of origin, and to that extent are beyond the scope of the refugee and complementary protection criteria of the Act.

21. The Tribunal notes the generality of the primary applicant’s claims and the absence of any explanation or evidence as to how those claims relate to the primary applicant and / or the secondary applicants for the purposes of establishing a well-founded fear of persecution under the refugee criteria of the Act or a real risk the primary applicant and / or secondary applicants will suffer significant harm under the complementary protection criteria of the Act.

22. The Tribunal considers there is no credible evidence before it to substantiate a finding that if the applicant returns to South Korea he would be exposed to harm, by cause or nature, such as to engage Australia’s refugee or complementary protection obligations.

23. The Tribunal is satisfied the applicant’s written claims do not raise any further protection claims requiring its consideration.

    Application of law

24. The issue in this case is whether the primary applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.

25. The Tribunal finds that:

    25.1.The primary applicant is a citizen of Republic of (South) Korea.

    25.2.The primary applicant’s claims do not satisfy the refugee or complementary protection criteria set out in the applicable law.

    25.3.If the primary applicant is returned to Republic of (South) Korea, there is no real chance that he would be persecuted, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.

    25.4.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Republic of (South) Korea there is a real risk the applicant will suffer significant harm.

    REQUEST FOR REFERRAL FOR CONSIDERATION OF MINISTERIAL INTERVENTION

26. Referencing paragraph 1 of the representative’s submission, the Tribunal notes the request is made pursuant to s 351 of the Act. The Tribunal considers rather that s 417 of the Act applies in this case.

27. The Tribunal notes the Minister’s guidelines on ministerial powers (s 351, s 417 and s 501).

28. The Tribunal notes the section in the Guidelines titled, ‘Cases that should be brought to my attention – unique or exceptional circumstances’, and notes in the particular the following circumstances:

    Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit where at least one member of the family is an Australian citizen or Australian permanent resident.

29. The Tribunal notes the letter from [Doctor A] to [Official A] is dated 1 August 2021, being after the delegate’s refusal decision and after the lodgement of the application for review.

30. There are no documents or other evidence before the Tribunal to inform whether the letter formed part of an earlier request by the applicants for referral of the case for consideration by the Minister.

31. The Tribunal notes the primary applicant’s children are all Australian citizens and are now aged [respective ages].

32. The Tribunal considers there is relevant evidence before it to warrant referral of the case for consideration by the Minister under the unique or exceptional circumstance cited in paragraph 28 of this decision record.

    CONCLUSIONS

33. The Tribunal is not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

34. Having concluded that the primary applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

35. Having concluded that the primary applicant does not satisfy the criteria in s 36(2)(a) or (aa) of the Act, accordingly, the secondary applicants do not satisfy the criterion in s 36(2)(b) or (c) of the Act.

36. There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c) of the Act.

    DECISION

37. The Tribunal affirms the decision not to grant the primary applicant and the secondary applicants a protection visa.

38. The Tribunal refers the case to the Department to be brought to the attention of the Minister.

    Kate Chapple
    Member

    
    
    

    ATTACHMENT A

    Summary of applicable law

    The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

    A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

    Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA.

    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).

    Relevant extracts from Migration Act 1958

    5 (1) Interpretation

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    36     Protection visas – criteria provided for by this Act

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.