1908309 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to refuse a protection visa to the primary applicant, a citizen of South Korea, and the secondary applicants, who were Australian citizen children. The dispute concerned whether the primary applicant had a well-founded fear of persecution or faced a real risk of significant harm if returned to South Korea, thereby engaging Australia's protection obligations. The applicants consented to the Tribunal deciding the matter on the papers without a hearing.

The Tribunal was required to determine if the primary applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) (refugee criterion) or section 36(2)(aa) (complementary protection criterion). This involved assessing whether the primary applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there was a real risk of suffering significant harm. The Tribunal also considered whether the secondary applicants, as members of the same family unit, met the criteria under sections 36(2)(b) or (c).

The Tribunal reasoned that the primary applicant's claims did not satisfy the refugee or complementary protection criteria. It noted the considerable delay in lodging the protection visa application, approximately 11 years after first arriving in Australia, which raised serious questions about the credibility of the claims. The absence of documentary or official country information to support the claims, and the generality of the claims concerning external state actions, were also significant factors. The Tribunal concluded that there was no credible evidence to substantiate a finding that the applicant would be exposed to harm upon return to South Korea, and therefore Australia had no protection obligations. Despite finding no grounds for protection, the Tribunal considered the unique or exceptional circumstances of the case, particularly the Australian citizenship of the applicants' children, and referred the case to the Minister for consideration under section 417 of the Act.

The Tribunal affirmed the decision not to grant the protection visa to the primary and secondary applicants. However, it referred the case to the Department for attention by the Minister, acknowledging that there was relevant evidence warranting consideration under the unique or exceptional circumstances provisions.