2005843 (Refugee)
[2025] ARTA 1136
•18 February 2025
2005843 (REFUGEE) [2025] ARTA 1136 (18 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Chang Min Park
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2005843
Tribunal:General Member R Da Costa
Date:18 February 2025
Place:Sydney
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that each of the applicants meets s 36(2)(a) of the Migration Act.
Statement made on 18 February 2025 at 10:45am
CATCHWORDS
REFUGEE – protection visa – South Korea – North Korea – political opinion – particular social group – high-profile North Korean defector to South Korea – imputed anti-South Korea political opinion – nationality – South Korean citizenship – dangerous intelligence work – fear of kidnapping – fear of killing – military service in South Korea – employment – mental health issues – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2CASES
AGA16 v Minister for Immigration and Border Protection [2018] FCA 628
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Chan Yee Kin v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIEA v Guo (1997) 191 CLR 559, MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Khawar (2002) 210 CLR 1
MIMA v Respondents S152/2003 (2004) 222 CLR 1
S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 March 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of the Democratic People’s Republic of Korea (North Korea) and nationals of the Republic of Korea (South Korea), applied for the visas on 15 October 2012. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act2024 (Cth) (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
CLAIMS AND EVIDENCE
Background
The background to this case is quite lengthy and complex. In assessing the applicants’ claims and evidence, the Tribunal has considered the large volume of material before it which is contained in the Department and Tribunal files, referred to below. Like the delegate, the Tribunal finds the applicants’ evidence about their background and experiences to be broadly credible.
Based on all the information before the Tribunal, the Tribunal is satisfied that the relevant background to this case, up to the time the applicants arrived in Australia, is as follows.
[Applicant 1], is [an age]-year-old woman. The second-named applicant, [Applicant 2], is her [age]-year-old son. They were born in North Korea. [Applicant 1’s] father was a high-ranking [official] in the North Korean regime, working for Kim Jong Il. In his role, [Applicant 1’s] father spent many years living outside North Korea in [other countries]. Due to a series of events, he found out in around March 2007 that he had fallen out of favour with the regime and was in danger. He defected from North Korea to South Korea. This situation put the rest of his immediate family in danger too. Some of the family were detained, but [Applicant 1’s] father was able to pay bribes to secure their release and facilitate the escape of most of his immediate family from North Korea in [specified year]. The family members all eventually ended up in South Korea and were granted South Korean citizenship, passports and new identities. [Applicant 1’s] father arrived in Australia [in] July 2011 along with his wife and grandchild (the son of [Applicant 1’s sibling]), travelling on their South Korean passports. [Applicant 1’s]s father was also able to present his North Korean passport to the relevant authorities in Australia to prove his original identity and nationality, which was accepted. [Applicant 1’s] father, wife and [a relative] were granted Protection visas in February 2012.
[Applicant 1] did not live with her parents and [a sibling] while growing up, as they were mostly overseas. She was raised by close relatives in North Korea. [Applicant 1] and her brother became high-ranking officials in North Korea, partly as a result of their family connections. [Applicant 1] completed university studies and then undertook military training and worked as an officer for around [number] years. Then she worked as a manager in the [named] department of [Agency 1]. Her husband in North Korea was [an occupation 1]. They separated after some years of marriage. Their son, [Applicant 2], was born in [specified year]. [Applicant 1’s] brother worked for [Agency 2] in the government and also held an important position.
Sometime in [year range], as a result of what happened to [Applicant 1’s] father, [Applicant 1] and her son, plus her [specified relatives] all defected from North Korea and escaped [to Country 1] with the assistance of a broker arranged by [Applicant 1’s] father following his defection. [Applicant 1’s] ex-husband did not flee and was apparently investigated and tortured. [Applicant 1’s] [specified relative] could not flee. She was interrogated and may no longer be alive.
Eventually, in [year range], [Applicant 1] and her [son and relatives] reached South Korea via other [countries]. Her father was already in South Korea by this time. [Applicant 1] and her son were accommodated in an institution connected to [Agency 3] rather than being processed through the Hanawon resettlement scheme[1] (which is the usual process for North Korean defectors) due to their special status. The family did not want to stay in South Korea, but they did want, and obtained, South Korean passports. [Applicant 1] worked with [Agency 3] for a time and provided them with intelligence information in exchange for her and her son eventually being granted South Korean passports. [Applicant 1] was not happy about the work she was asked to do for [Agency 3], which she considered dangerous, or how long the process of obtaining passports and being able to travel freely took. The family members adopted new names and new identities in South Korea (which are the names they are using in the Tribunal). [Applicant 1] and her son were noticeable in South Korea because of their North Korean accents and she found it difficult to integrate into South Korean society. [Applicant 2] was bullied at school. While living in South Korea, they were worried they would be located by North Korean agents.
[1] (accessed 14 February 2025).
[Applicant 2] arrived in Australia [in] December 2011, as [an age]-year-old, travelling alone on his South Korean passport, to join his grandparents and cousin who were already here. He applied for a protection visa as the sole applicant. On 13 February 2018, he was included as a dependent applicant on [Applicant 1’s] Permanent Protection visa application (subclass 866) and his earlier visa application was withdrawn.
In late 2011, [Applicant 1] worked in South Korea for about six months as an [occupation 2] in a company that [did specified services], in addition to her [Agency 3] work. This job was to help with her living expenses and not connected to her intelligence work.
In [year], [Applicant 1] started spending time in [Country 2], assisting her family members there. Her new sister-in-law (married to [her] brother), who had been working in a [business] in [Country 3], had defected and come to [Country 2] with [Applicant 1’s] brother. Her sister-in-law was pregnant, didn’t have any documents because of her defection and was sick, so [Applicant 1] and her mother began spending time in [Country 2] to help her. In around April 2012, [Applicant 1’s] brother was arrested [in Country 3] and imprisoned on the accusation that he abducted his [wife]. A South Korean media report at the time about this incident suggests that North Korea would have been aware that the family had defected and acquired South Korean citizenship and new identities.
On 2 July 2012, [Applicant 1] lodged a Global Special Humanitarian (offshore) (subclass 202) visa application in [Country 2]. She arrived in Australia [in] July 2012, travelling on her South Korean passport, and lodged a Permanent Protection visa on 15 October 2012.
The relevant circumstances affecting the applicants since they arrived in Australia and their current claims for protection are discussed below.
Evidence before the Department
Documents before the Department
The applicants provided a range of documents to the Department in support of their protection visa applications. These include (non-exhaustive):
· Protection visa application forms of [Applicant 1] and [Applicant 2];
· Offshore Humanitarian Visa application for [Applicant 1] and associated correspondence;
· Bio-data page of [Applicant 1’s] South Korean passport issued [in] 2010;
· Statutory declaration of [Applicant 1] dated 31 January 2014 with annexures;
· Letter from [Applicant 1] dated [in] August 2019 requesting Ministerial Intervention;
· Departmental submission regarding possible Ministerial intervention in the case of [Applicant 1’s] father, mother and nephew allowing them to lodge a valid Protection visa application, dated [in] November 2011;
· Departmental submission regarding possible Ministerial intervention in the case of [Applicant 2] allowing him to lodge a valid Protection visa application, dated 19 July 2012.
Where relevant, the content of these documents is referred to in detail below.
Interview and the delegate’s decision
On 13 February 2018, [Applicant 1] attended an interview with the delegate to discuss her claims for protection. [Applicant 1’s] written and oral claims and evidence prior to, and including, the interview are set out at length in the delegate’s decision. On 20 March 2020, the delegate made their decision. The delegate found that the applicants were citizens of both North Korea and South Korea and assessed their claims for protection in relation to both countries. The delegate found that as a former high-ranking North Korean official who had defected to South Korea, [Applicant 1] would face a real chance of serious harm if she returned to North Korea and that she met the criteria for the grant of a protection visa on the basis of her claims against North Korea. In relation to [Applicant 1’s] claims against South Korea, the delegate found that she did not fear returning to South Korea and had not experienced harm there in the past, but she did not want to return there and believed that the state protection offered to her would not be effective. The delegate considered whether [Applicant 1] could avail herself of effective protection in South Korea, should it be necessary, and concluded that effective protection measures were available in the event she required protection from North Korean agents operating in South Korea. The delegate found that the applicants are not persons in respect of whom Australia has protection obligations.
Evidence before the Tribunal
Documents and submissions before the Tribunal
In addition to the documents referred to above, the Tribunal has received the following:
· Delegate’s decision dated 20 March 2020;
· Statutory declarations of [Applicant 1] dated 4 October 2024 and 21 November 2024;
· Statutory declaration of [Applicant 2] dated 4 October 2024;
· Letter from [Doctor A], General Practitioner (GP), dated 9 October 2024, regarding the serious mental health issues experienced by [Applicant 2];
· Letter from [Doctor A] dated 8 January 2025 providing an update on [Applicant 2’s] situation;
· ABC online article dated 6 January 2018 about a North Korean defector in South Korea who worked for an organisation that assisted North Korea to evade sanctions and obtain money illegally overseas for North Korea, who now fears assassination;
· Written submissions from the applicants’ representative dated 22 October 2024;
· Written submissions from the applicants’ representative dated 11 November 2024;
· Included with the written submissions dated 11 November 2024 are written submissions from the applicants’ previous representative dated 28 February 2018, which according to the current representative, may not have been provided to the Department;
· Written submissions from the applicants’ representative dated 21 November 2024.
The written submissions from the applicants’ representative were provided following the case management hearing and in response to further written requests for information from the Tribunal about specific aspects of the applicants’ cases. Where relevant, the detail of these submissions is referred to below.
[Applicant 1’s] claims for protection
[Applicant 1] claims to fear harm if she returns to North Korea on the basis of her status as a defector to South Korea from a high-ranking North Korean family which would mean she would be perceived to have an anti-North Korea political opinion.
[Applicant 1] claim claims to fear harm if she returns to South Korea for the following reasons:
· her perceived anti-South Korea political opinion due to her background as a senior person in the North Korean regime and her objections to her treatment by [Agency 3] due to their breach of promise to allow her to have a South Korean passport;
· her behaviour as an un-cooperative North Korean defector who was unhappy with the way she was treated by [Agency 3] and who gathered intelligence for them;
· her status as a high-profile North Korean defector who [Agency 3] will attempt to re-engage her in intelligence work if she returns, putting her at risk;
· North Korean agents operating covertly in South Korea would be interested in the information she has or information her father possesses due to their high-profile family status and will try to kidnap or harm her;
· the risk of exacerbation of her psychological trauma and the fact that she and her son would no longer be considered North Korean defectors in South Korea and would not have access to the support such people ordinarily receive;
· discrimination from non-State agents in South Korea;
· severe repercussions for family members remaining in North Korea due to [Applicant 1’s] presence in South Korea.
[Applicant 1] claims the South Korean authorities cannot keep her safe and effective state protection is not available to her.
[Applicant 2’s] claims for protection
Initially, [Applicant 2] relied on his mother’s claims for protection but he has subsequently raised additional claims of his own in relation to South Korea as follows:
· he will be bullied and discriminated against like he was in the past and this will further exacerbate his mental health issues;
· he fears having to do military service in South Korea because he would have to point a gun at North Koreans;
· he fears being targeted by North Korean operatives in South Korea due to his family background;
· he fears that he would not be able to live freely in South Korea because of his and his family’s background.
The case management hearing
The applicants appeared before the Tribunal on 5 September 2024. In light of the age and unusual features of this case, the Tribunal arranged a case management hearing to discuss procedural matters with the applicants and to attempt to gain some clarity on important issues. This included whether the applicants were attempting to dispute their South Korean nationality, which had not been in dispute at the Departmental level, as well as any changes to their claims for protection and any additional evidence they intended to provide.
Importantly, the case management hearing also provided the Tribunal and the applicants with the opportunity to test their ability to communicate using an interpreter in the South Korean dialect before holding the substantive hearing. The South Korean and North Korean dialects are different[2] and prior to the hearing the Tribunal had made inquiries and established that there are no interpreters available in Australia in the North Korean dialect. The Tribunal explained to the applicants that testing communication was one of the purposes of the case management hearing and told them to raise any communication difficulties they experienced immediately. At the end of the hearing when asking the applicants how they felt about using the South Korean interpreter, [Applicant 1] indicated that she had some challenges understanding the interpreter because some words are different and at times she needed to stop and think before she responded to the Tribunal’s questions, but overall it was okay. [Applicant 2] said he had some minor difficulties with words but he thought the interpreter was good. The interpreter indicated that she felt able to carry out her role interpreting for the applicants at an appropriate professional level.
[2] Crossing Divides: Two Koreas divided by a fractured language; The Korean Language: Key Differences Between North and South - Blog; Is There a Difference between North and South Korean Language? - Asian Absolute (accessed 6 February 2025)
Based on discussions with the applicant and the interpreter and the Tribunal’s observation of the applicants in the case management hearing, the Tribunal accepts that the applicants both still have identifiable North Korean accents and have some difficulty understanding and communicating in the South Korean dialect.[3]
[3] Crossing Divides: Two Koreas divided by a fractured language (accessed 6 February 2025)
Following discussions in the case management hearing, [Applicant 1’s] claims for protection remained largely the same, but [Applicant 2] raised some claims of his own, as noted above. The Tribunal invited the applicants to provide additional evidence and submissions in relation to their nationality and mental health.
The applicants were represented in relation to the review and their representative attended the case management hearing.
As the Tribunal has been able to make a favourable decision based on the evidence before it, the Tribunal did not require a further hearing following the case management hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
The High Court has considered the Convention definition of refugee in a number of cases.[4] Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
[4] Notably, Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA (2000) 201 CLR 293, MIMA v Haji Ibrahim (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222 CLR 1, Applicant S v MIMA (2004) 217 CLR 387, Appellant S395/2002 v MIMA (2003) 216 CLR 473, SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
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 a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Nationality
The applicants claim to be citizens of North Korea. On the basis of the evidence before it, the Tribunal accepts this, just as the delegate did.
The applicants have agreed in the past that they are also citizens of South Korea, making them dual North Korean and South Korean citizens. This is what the delegate found on the basis of the evidence, but in more recent times the applicants have disputed their South Korean nationality.
Most recently, the applicants claimed that they had taken steps to try to renounce their South Korean citizenship since being in Australia, although they were unable to provide persuasive evidence to the Tribunal that this had been successful or, indeed, that it would even be possible for them to do so. [Applicant 1] said her attempt to renounce her South Korean citizenship was due to her fear of returning to South Korea. The applicants have given evidence that they do not identify as South Korean, they do not feel safe there and they do not wish to live there. The Tribunal understands their feelings about this.
Whether a person is a national of a particular country is to be determined by reference to the laws of the relevant country. Article 3 of the South Korean Constitution defines the territory of the Republic of Korea (that is, South Korea) as consisting of the entire Korean peninsula, and Article 2 of the Nationality Act 1948 deems people born to Korean-national parents (as well as other specified categories of persons) to be South Korean nationals by birth. This means that North Koreans are considered to be South Korean nationals pursuant to South Korean domestic law.[5] There are three exceptions to this which are not relevant to the applicants.[6]
[5] A Wolman, ‘North Korean Asylum Seekers in the West; Is Dual Nationality Dispositive?’, Indiana International & Comparative Law Review, Vol 32(3), 2022 (Wolman) See, eg, Wolman 407-409.
Based on the evidence, there is no doubt that the applicants lived in South Korea for several years and were granted South Korean passports, which the Tribunal considers to be prima facie recognition by South Korea of their citizenship. It is not necessary on the facts of this case to address the issue of nationality in further detail because the applicants have conceded in their written submissions dated 11 November 2024 that they would most likely be regarded by South Korea as South Korean nationals. The Tribunal agrees with this finds they are nationals of South Korea. The Tribunal has therefore assessed their claims for protection on the basis that they are dual nationals of North Korea and South Korea.
The Tribunal finds that North Korea and South Korea are both the receiving countries for the purposes of assessing the applicants’ claims for protection.
The Tribunal finds that the applicants do not have the right to enter and reside in any other countries: s 36(3).
ANALYSIS, REASONS AND FINDINGS
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
The applicants’ return to North Korea
As set out above, the applicants claim to fear harm if they return to North Korea including detention, torture and, potentially, death on the basis of their actual or perceived anti-North Korea political opinion.
Based on the evidence before it, the Tribunal finds that if the applicants returned to North Korea, as known defectors from a high-ranking family and who had obtained South Korean citizenship and sought asylum overseas, they would be imputed to hold political opinions against the North Korean government.
Given the previous high-ranking positions of [Applicant 1] and her father and brother in the North Korean regime, North Korea’s known hostile attitude towards defectors[7] (particularly defectors to South Korea) and its documented history of human rights abuses towards its own population,[8] the Tribunal finds that if the applicants returned to North Korea in the reasonably foreseeable future they would face a real chance of serious harm including detention, torture and, potentially, death.
[7] E Poorman, ‘North Korean Defectors in South Korea and Asylum Seekers in the United States: A Comparison’, 17 Northwest Journal of Human Rights 97 (2019) (Pooman).
[8]
Based on the Tribunal’s findings above and the country information referred to, the Tribunal is satisfied that the applicants fear being persecuted for reason of their actual or imputed anti-North Korean political opinion and there is a real chance that they would be persecuted for this reason if they returned to North Korea in the reasonably foreseeable future. The Tribunal finds that the real chance of persecution relates to all areas of North Korea.
The Tribunal is satisfied that the persecution will be directed at the applicants for the essential and significant reason of their political opinion, it involves serious harm to them and that it involves systematic and discriminatory conduct in that it is deliberate or intentional and involves significant physical ill-treatment of the applicants and a threat to their life or liberty.
Given it is the North Korean State that is the agent of persecution in this case, the Tribunal is satisfied that effective protection against persecution would not be provided to the applicants by the North Korean State and that the North Korean State is not willing and able to offer such protection. On this basis, the Tribunal finds that effective protection measures are not available to the applicants in North Korea.
The Tribunal is satisfied that the applicants cannot take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in North Korea because a modification would require them to alter their political beliefs or conceal their true political beliefs to avoid serious harm. Accordingly, the Tribunal finds that the applicants have a well-founded fear of persecution for reason of their political opinion in North Korea.
In respect of North Korea, the Tribunal finds that the applicants are outside the country of their nationality and, owing to a well-founded fear of persecution, they are unable or unwilling to avail themselves of the protection of that country. Therefore, the Tribunal finds that they meet the definition of refugee in Article 1A(2) of the Refugees Convention
As the applicants meet the definition in Article 1A(2) of the Refugees Convention, the Tribunal is satisfied they are persons in respect of whom Australia has protection obligations under s 36(2)(a). As the Tribunal has found that the applicants meet the refugee criterion in s 36(2)(a) of the Act, it is not necessary to consider whether the applicants meet the complementary protection criterion in s 36(2)(aa).
The applicants’ return to South Korea
The applicants also claim to fear harm if they return to South Korea for various reasons set out above. The Tribunal has focussed on the applicants’ claims in relation to societal discrimination and their mental health for the reasons explained below.
The applicants’ experiences in South Korea
In her Statutory Declarations, [Applicant 1] gives evidence that she felt afraid in South Korea because of the way she was treated by [Agency 3], including being required to undertake what she regarded as dangerous intelligence work before she was granted a South Korean passport and was able to travel freely. She also worried about her son’s safety during this time as a result of her work. [Applicant 1] says while in South Korea, she remained under surveillance from [Agency 3] because of her work and this made it hard for her to live a normal life as she was afraid of being exposed and exploited. The fact that she was working for [Agency 3] and all her personal details had been changed meant she felt insecure and could not form meaningful connections with work colleagues or other people because she was worried about what would happen if her identity was exposed. This fear and isolation, along with her other worries, took a severe toll on her mental health.
In her Statutory Declaration dated 4 October 2024, [Applicant 1] states that in South Korea she also worked for about six months in an [occupation 1] company to support herself financially while she waited to be granted a passport so she could leave South Korea. She says she was only able to obtain the employment because of the South Korean government’s policy encouraging companies to employ North Koreans, rather than due to any acceptance of her as a North Korean defector. Because she was still working for [Agency 3] at the time, she felt that she had to remain isolated from her colleagues because an [Agency 3] officer would come and see her without notice and she was worried about her true identity being revealed. She also claims that the other North Korean defector households in the building where she lived had been through the Hanawon process and so when they asked her about her experience, she could not answer them because she had not been through that same process. This increased suspicion of her and made her feel more isolated and vulnerable.
In the case management hearing, [Applicant 1] explained that she doesn’t feel South Korean. In her Statutory Declaration dated 4 October 2024, [Applicant 1] says she and her son were discriminated against in South Korea due to their way of speaking and thinking as North Koreans. She says her son, [Applicant 2], was branded a communist, which prevented him from having a normal school life and she had to hide her identity and live an isolated life.
In the case management hearing, [Applicant 2] gave evidence that he came to Australia when he was [age] years old and doesn’t know much about South Korea. He is scared that he would have to join the South Korean army and do military service and fight against relatives in North Korea if he returned there. He remembers bad things about when they lived in South Korea. He was bullied in school and South Koreans watched them closely because of their background. In Australia, they can try to conceal where they are from but in South Korea they could not do that. In his Statutory Declaration dated 4 October 2024, [Applicant 2] explained that in South Korea he didn’t receive a stable education, which has affected him ever since. He was mistreated at school due to his North Korean background and dialect and can’t forget this. He was bullied and called names like ‘red communist’ and suffered physical abuse. He still has scars on his hands from this and suffers from psychological issues. These traumatic experiences, combined with the prolonged uncertainty about his visa status, have continued to negatively impact his life since he arrived in Australia, including his ability to achieve and succeed.
The applicants have no family or other social support network in South Korea.
The Tribunal accepts the applicants’ evidence set out above about their experiences in South Korea.
The situation for North Korean defectors in South Korea
The Tribunal has considered a range of country information about the situation for North Korean defectors in South Korea provided by the applicants, referred to by the delegate in their decision and sourced by the Tribunal itself.
The vast majority of North Korean defectors in South Korea are regarded as citizens of South Korea and not refugees because, as referred to above, under the South Korean Constitution the South Korean government considers itself to be the sole legitimate authority on the Korean peninsula.[9] This has an impact on the way North Korean defectors are treated in South Korea and as asylum seekers in third countries.[10]
[9] G Choi, ‘North Korean Refugees in South Korea: Change and Challenge in Settlement Support Policy’, The Korean Journal of International Studies, Vol 16(1), 77-98 (2018) (Choi) kjis016-01-04.pdf; M Mallari & S Nass, ‘Seeking Safer Shells: An Analysis of Interpretations, Justifications, and Rationales Behind Decisions on North Korean Defectors’ Right to Asylum’, Journal of Public & International Affairs, 22 April 2024 (Mallari) Mallari; Wolman.
The North Korean Defectors Protection and Settlement Support Act 1997 establishes a series of support programs for North Korean defectors who have arrived in South Korea, ranging from settlement benefits, housing, employment, social welfare, education, protection and other support.[11]
[11] (accessed 10 February 2025); Jung K, Dalton B & Willis J, ‘The Onward Migration of North Korean Refugess to Australia: In Search of Cosmopolitan Habitus’, Cosmopolitan Civil Societies: an Interdisciplinary Journal, 9(3) 1- 20 (2017) (Jung et al)
Country information indicates that for most North Korean defectors in South Korea, life is difficult and they face a range of challenges. As Poorman explains,[12] the initial evaluation process of North Korean defectors when they arrive in South Korea is undertaken by the NIS. The NIS has been criticised for its politicisation and secrecy and there have been allegations of defectors being mistreated by NIS officers. A documentary called ‘Spy Nation’ referred to the sometimes severe interrogations that North Korean defectors have been subjected to and other allegations of misconduct have been raised against the NIS.[13] After the NIS evaluation process is complete, non-suspicious defectors are moved to a resettlement centre (Hanawon) where they stay for some months and learn to live as South Koreans and their South Korean citizenship is made official.[14] The Ministry of Unification is the main organisation that assists North Koreans with their transition to life in South Korea, along with various non-government organisations (NGOs) who offer ongoing support.[15] Over time, the amount of support, including financial support, provided to North Korean defectors by the South Korean government has diminished and the official government support to North Korean defectors generally ends after time limits prescribed in the North Korean Defectors Protection and Settlement Support Act.[16] The Tribunal notes that [Applicant 1] claims she did not go through the Hanawon resettlement process described above due to her high rank and she was kept under the control of [Agency 3], which disadvantaged her.
[12] Poorman 103; F Wang, Refugee Resettlement on the Korean Peninsula: The Case of North Korean Defectors’, Boston University, Frederick S Pardee School of Global Studies, 2023 (Wang)
[13] Poorman 104; Wolman;
[14] Poorman 103; Choi; Wolman; (accessed 6 February 2025)
[15] Poorman 105; (accessed 6 February 2025)
[16] Poorman 108; (accessed 6 February 2025)
Country information indicates that many North Korean defectors face social prejudice, discrimination and mistreatment, with the life they hoped for falling short of their expectations.[17] This is, in part, due to the demonisation of North Korea and North Koreans more generally by the South over a long period of time, along with the lack of knowledge about each other’s cultural values.[18] Many North Korean defectors report feeling lonely and isolated in South Korea and work in low-paid and low-skilled jobs[19] and are treated negatively by South Koreans due to their cultural and socio-political background.[20] The average monthly income of North Korean defectors in South Korea is about half the national average and up to 20% of defectors reportedly remain unemployed or in casual employment.[21] About 80% of North Korean defectors are women, many of whom have experienced trauma, and these women typically suffer discrimination from employers, including due to suspicion arising from their North Korean accents.[22] Older defectors can face destitution because they cannot access South Korea’s pension scheme which is based on contributions during a person’s working life. The basic old age pension is minimal and poverty in old age is reportedly a serious problem in the South which can disproportionately affect North Koreans.[23] Some South Koreans blame North Korean defectors for wasting taxpayers’ money, accuse them of being communists and spies and resent the resettlement payments and support they receive.[24]
[17] (accessed 6 February 2025); Poorman 112; Wang; Choi; Wolman; (accessed 14 February 2025)
[18] Wang; Jung et al.
[19] Poorman 110; Choi; (accessed 6 February 2025)
[20] Wang.
[21] Poorman 109; Wang; Jung et al; Choi.
[22] (accessed 6 February 2025)
[23] (accessed 6 February 2025)
[24] Wang; Choi.
Many North Korean defectors find adjusting to the richer, open, globally-focussed society of South Korea difficult, with differences in speech, manner, dress and outlook posing a challenge for them in terms of integrating into South Korean society.[25] Children can face bullying and rejection at school and similar problems can arise in workplaces.[26] Many defectors feel reluctant to admit their North Korean background with some going to great lengths to try to hide their background and assimilate, including attempting to shed their accent, having cosmetic surgery and engaging in conspicuous consumption of high-end brands in an effort to escape the stigma of being North Korean.[27] Defectors generally lack the personal connections and family ties in the South that would help them to build strong networks and aid their integration, and this alienation can exacerbate mental health issues and a reluctance to seek help.[28] There are reports of a very small number of North Koreans choosing to return to North Korea after spending time in the South which is presumed to be due to the difficulties they face adapting to life in South Korea.[29]
[25] Wang; Jung et al; (accessed 14 February 2025)
[26] Jung et al; (accessed 14 February 2025)
[27] Jung et al.
[28] Wang; (accessed 6 February 2025)
[29] Wang; (accessed 6 February 2025)
In 2019, a defector and her young son died in Seoul, apparently of starvation, and their bodies were not discovered for two months, highlighting their isolation in society and lack of support.[30] The Seoul city government has acknowledged the range of difficulties North Korean defectors face in integrating into South Korean society and have committed to providing better support.[31] Some North Koreans, together with South Korean natives, have established community groups to provide assistance for defectors and support their adaptation.[32] While there are, of course, reports of North Korean defectors who find success and satisfaction with their lives in South Korea, the country information indicates that for most North Korean defectors life in South Korea is difficult.
[30] Choi; (accessed 6 February 2025)
[31] (accessed 6 February 2025)
[32] Wang.
Country information indicates that South Korea is one of only two countries in the OECD to lack an anti-discrimination law. Numerous attempts have been made by successive governments since 2006 to pass anti-discrimination legislation but none have succeeded in the face of opposition from predominantly conservative Christian groups, despite the fact that polls show a majority of South Koreans support the enactment.[33] International organisations such as the United Nations Human Rights Council and Amnesty International have consistently urged South Korea to enact such laws and expressed concern about the discrimination faced by a broad range of minority groups in South Korea and the lack of legal protection available to them.[34] The BTI South Korea Country Report 2024[35] states ‘discrimination remains a major problem in South Korea for groups as diverse as women, migrants, people with disabilities, LGBTQ+ people and North Korean defectors.’ It states that women are underrepresented in the labour market and the gender pay gap is the highest in the OECD. The same report states that discrimination against various groups including North Korean defectors remains widespread, with half of North Korean defectors in South Korea having suffered from discrimination, and these vulnerable groups are particularly susceptible to discrimination and abuse in the workplace.
The applicants’ mental health
[33] (accessed 14 February 2025)
[34] (accessed 14 February 2025)
[35]
In her Statutory Declarations, [Applicant 1] has referred to suffering from anxiety and Post-Traumatic Stress Disorder (PTSD) and the way her mental health has been affected by her experiences. In the case management hearing, she told the Tribunal that she had one session with a psychologist in 2013 after arriving in Australia but she has not had further treatment for her mental health. In the case management hearing, the Tribunal observed that [Applicant 1] was upset at times, hesitant to communicate orally with the Tribunal about her claims and was clearly trying to be stoic. She acknowledged that she was emotional and said she ‘needed to get it under control.’ The Tribunal observed that [Applicant 2] was highly attuned to the emotional state of his mother and her distress had a significant and visible negative impact on him, both emotionally and physically, which raised concerns for the Tribunal about his wellbeing. [Applicant 2] told the Tribunal he had only ever had one session with a psychologist a long time ago. He told the Tribunal about some of the coping mechanisms he uses when he becomes distressed, which also concerned the Tribunal. In light of the applicants’ evidence and behaviour in the case management hearing, the Tribunal invited them to provide additional medical evidence about their mental health as the Tribunal considered this to be relevant to assessing their claims for protection.
Following the case management hearing, the Tribunal has received additional medical evidence about [Applicant 2’s] mental health, but not medical evidence in relation to [Applicant 1]. In a letter dated 9 October 2024, [Applicant 2’s] GP, [Doctor A], states that [Applicant 2] had experienced extremely severe deterioration of his mental health, including extremely severe depression, anxiety and stress levels. She identifies the impact of the ongoing uncertainly around his visa status as partly responsible for this situation. She states that [Applicant 2] has severe anxiety about separation from his family and extreme fear about being deported to South Korea and living alone. She states that he has expressed an intention to take his own life if he is to be deported from Australia. She states that she has started him on anti-depressant medication but due to the severity of his condition, he needs to see a psychiatrist.
In a further letter from [Doctor A] dated 8 January 2025, she states that she has been reviewing [Applicant 2] once or twice a month, he has trialled various medications for anxiety and depression but they have had to be stopped due to undesirable side-effects and he has found it difficult to access specialist psychological or psychiatric care due to the cost. She has found a private psychiatrist who speaks Korean and given [Applicant 2’s] severe symptoms and difficulty controlling them, she has strongly recommended that he sees this person. She reiterated [Applicant 2’s] anxiety about his situation, the prospect of being separated from his family and the prospect of being sent to South Korea where he has no family or friends or support network.
In her Statutory Declaration dated 21 November 2024, [Applicant 1] states that she does not want to seek medical help for her mental health because she is afraid of receiving an official diagnosis that would require treatment. She is worried about collapsing and becoming dependent on medication. She found the session she had in 2013 to be traumatic and more like an interrogation rather than counselling. The Tribunal considers [Applicant 1’s] response to be consistent with aspects of the country information referred to below about mental health in South Korea.
The applicants have both given evidence that they are strongly emotionally and psychologically dependent on one another and regard themselves as a unit. They live together and help each other in many ways. The Tribunal accepts this and the evidence from the applicants and [Doctor A] about their mental health.
The situation for people with mental health issues in South Korea
Country information indicates that widespread stigma exists in South Korea towards mental health issues.[36] In 2021, South Korea was reported to have the highest suicide rate among Organisation for Economic Cooperation and Development (OECD) nations, which has been the case for over 10 years.[37] The enactment of the Mental Health Act in 1995 resulted in qualitative and quantitative advancements in mental health care and treatment in South Korea and helped to shift the focus to community care and away from hospital-based treatment, but a much smaller proportion of South Koreans with mental illness receive treatment compared with the rates of treatment in other developed countries and government spending on mental health is lower than the level recommended by the World Health Organisation.[38] Research suggests that while the overall health status in South Korea is improving, the mental health status of the population remains low.[39]
[36] Zhang et al, ‘Overview of Stigma against Psychiatric Illnesses and Advancements of Ant-Stigma Activities in Six Asian Societies’, International Journal of Environmental Research and Public Health, Vol 17(1), 2019 (Zhang) ; S Nagar, ‘The Struggle of Mental Health Care Delivery in South Korea and Singapore’, Harvard International Review, 11 March 2022 (Nagar)
[37] Chung et al, ‘Mental Health Services and Research and Development in South Korea’, Taiwanese Journal of Psychiatry, 35(2) Apr – June 2021 (Chung)
[38]S Roh et al, ‘Mental Health Services and R&D in South Korea’, International Journal of Mental Health Systems 10, Article 45 (2016) (Roh)
[39] Chung; Roh; Nagar.
A 2019 article[40] indicates that demographic factors such as education, age and gender play an important role in influencing stigma and use of mental health services in South Korea, with highly educated South Koreans more likely to seek assistance and to experience less stigma. Older South Koreans are more likely to avoid mental health services due to mental disorders being traditionally associated with personal weakness. Passive avoidance strategies and embarrassment result in refusals to seek psychiatric treatment. In additional to public stigma, internalised stigma and low self-esteem is a problem which has been associated with increased levels of suicidal ideation and attempts. Discrimination experienced by psychiatric patients in South Korea can include ‘emotional shunning, difficulty in purchasing medical insurance, and detrimental influences on reputation and career.’ The stigma around mental illness can affect not only individuals, but family members as well which is known as ‘family stigma’, which may lead to family members taking steps to try to hide the fact that a family member suffers from a psychiatric illness. This, again, has negative effects on a person’s willingness to seek treatment.
[40] Zhang; see also Nagar.
The South Korean government has launched a range of initiatives to try to change the perception of mental illness and reduce the stigma,[41] but much of the work has been left to civil society groups and not-for-profit organisations whose attempts to combat the problems are necessarily limited.[42] Nagar considers that South Korea’s high levels of mental health stigma is having a negative effect on the South Korean economy and society and the stigma is impeding efforts to improve mental health care.[43]
[41] Zhang.
[42] Nagar.
[43] Nagar.
Reports indicate that the situation for North Korean defectors in South Korea is potentially even more precarious, with many suffering from serious mental health issues and mental health services and support lacking for defectors.[44] A 2022 North Korean Refugees Social Integration Survey undertaken by the Korean Hana Foundation reported that discrimination faced by North Korean defectors in South Korea causes many to have psychological breakdowns.[45] Suicide rates amongst North Koreans defectors in South Korea are reported to be around double that of South Korean citizens, which already has the highest rate in the OECD.[46]
Findings
[44] (accessed 6 February 2025)
[45] (accessed 6 February 2025)
[46] (accessed 6 February 2025)
Having considered the applicants’ claims and evidence, and taking into account the country information referred to above, the Tribunal finds as follows.
The experiences and challenges [Applicant 1] and [Applicant 2] faced in South Korea as described in their written and oral evidence are broadly consistent with aspects of the country information referred to above. This includes difficult dealings with [Agency 3], fear of exposure of their true background, societal discrimination due to them being identifiable as North Korean defectors because of their speech, demeanour and circumstances, social isolation, economic instability, verbal and physical bullying of [Applicant 2], and a deterioration in their mental health.
Since arriving in Australia, the Tribunal finds that the applicants have continued to experience difficulty in their lives due to their past traumatic experiences and the ongoing uncertainty of their visa situation. While [Applicant 2] speaks good English having completed high school in Australia, the applicants have apparently not developed a range of further skills or accumulated funds, for example, that would help to give them a stable foundation to establish themselves if they were to return to South Korea. Based on the evidence before it, the Tribunal does not consider that [Applicant 1] would be more employable in South Korea now or have a higher earning capacity than when she lived there in the past. [Applicant 2’s] evidence is that he has struggled academically and psychologically in Australia. The Tribunal has found that the applicants’ speech still identifies them as North Korean and would continue to so if they were to return to South Korea.
The Tribunal finds that the applicants previously received support in South Korea under the North Korean Defectors Protection and Settlement Support Act but they would not be eligible to receive this support for a second time if they returned to South Korea as the scheme does not provide for this. They would presumably have access to support from NGOs which assist North Korean defectors, but based on their past experiences and ongoing fears, whether they would seek out such support, and the extent of the support they would receive as people who have been absent from South Korea for over ten years, is questionable. The Tribunal notes that the applicants appear to have been reticent about seeking support even in Australia where they would not experience the types of stigma and difficulties they fear in South Korea, which suggests to the Tribunal that they may also be reticent about seeking support in South Korea despite the challenges they would face. In essence, the Tribunal finds that the applicants would return to South Korea as ordinary South Korean citizens, albeit clearly of North Korean defector background, and they would be in a more vulnerable position than they were in when they lived in South Korea previously in terms of access to services and support. The Tribunal finds they have no existing social or family support networks in South Korea. Based on the country information referred to above, the Tribunal finds that they would be socially isolated, economically and psychologically vulnerable and subject to various forms of societal discrimination.
Even though [Applicant 1] does not have a medical diagnosis in respect of her mental health, based on the Tribunal having broadly accepted her evidence about her past experiences and the country information referred to, the Tribunal is prepared to accept that she would be diagnosed with PTSD and/or some other serious mental health condition(s) if she were willing to seek help and undertake a medical assessment, which she has indicated she is not prepared to do. In respect of [Applicant 2], the Tribunal accepts [Doctor A’s] diagnosis and prognosis, which is that he is suffering from extremely severe depression, anxiety and stress, his symptoms are proving difficult to control and he has expressed the intention to end his life if he is sent back to South Korea. The Tribunal also observed [Applicant 2’s] behaviour in the case management hearing when he was clearly feeling anxious and under stress despite the relative ‘safety’ of the Tribunal setting and, as noted above, he exhibited visible symptoms of distress which concerned the Tribunal.
Based on the Tribunal’s findings above about the applicants’ mental health and the country information referred to, the Tribunal finds that [Applicant 1] would not be prepared to seek help for her mental health issues if she returned to South Korea. The Tribunal also finds that being in South Korea, with the various challenges this would pose for her, means it is likely that her mental health situation would deteriorate. In relation to [Applicant 2], the Tribunal finds that if he returned to South Korea, his mental health would continue to deteriorate to the point where he would find it very difficult to function in society and there would be a genuine risk he would attempt suicide. The Tribunal also finds that as a young man of North Korean background with serious mental health issues he would be at risk of bullying like he was in the past. The Tribunal finds that the applicants’ mental health situation would exacerbate their other existing vulnerabilities and would be another source of discrimination.
Do the applicants satisfy the refugee criterion for protection in respect of South Korea?
Amongst other claims, the applicants submit that if they return to South Korea, they will be subjected to various forms of discrimination by South Korean society at large which, cumulatively, amounts to persecution.
For the reasons explained above, the Tribunal is satisfied that the applicants are citizens of South Korea (and North Korea) and are outside their country of nationality.
The Tribunal has considered whether the persecution the applicants fear involves serious harm to them. Section 91R(2) provides that the following are instances of serious harm: (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. The Tribunal notes that this is not an exhaustive list of what can amount to serious harm. Further, in assessing whether what a person claims to fear is serious harm, it is necessary and relevant to have regard to personal attributes of the applicant such as age and frailty, as well as personal vulnerabilities.[47]
[47] AGA16 v Minister for Immigration and Border Protection [2018] FCA 628, [35]; SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39, [135].
Based on the Tribunal’s findings above and the country information referred to, the Tribunal finds that if the applicants returned to South Korea in the reasonably foreseeable future, there is a real chance that they would face various forms of societal discrimination.
In the case of [Applicant 1], the Tribunal finds there is a real chance that she would face discrimination as a woman, as a North Korean defector and as a person with mental health issues. The Tribunal considers there is a real chance that [Applicant 1] would face discrimination in terms of finding employment due to her status as a woman, a North Korean defector, her identifiable North Korean accent and her limited skills. Based on country information, the Tribunal finds there is a real chance she would experience discrimination and potentially abuse in the workplace, as well as a lack of job security and low earning capacity if she is able to find employment. She would be economically vulnerable as a result of these factors, and also into the future as an older woman who has not had the opportunity to participate in South Korea’s old age pension scheme. The Tribunal considers there is a real chance [Applicant 1] would experience broader societal discrimination such as general disapproval and resentment from native South Koreans and social isolation. There is also a real chance that she would face discrimination and stigma due to her mental health issues.
In the case of [Applicant 2], the Tribunal finds there is a real chance that he would face discrimination as a young North Korean defector and as a person with serious mental health issues. The Tribunal considers there is a real chance that [Applicant 2] would face discrimination in terms of finding employment due to his past academic struggles, as a North Korean defector, his identifiable North Korean accent, his limited skills and his mental health issues. Based on country information, the Tribunal finds there is a real chance [Applicant 2] would experience discrimination and abuse in the workplace, which could take the form of bullying like he experienced in the past at school. There is also a real chance he would experience a lack of job security and low earning capacity if he is able to find employment. He would be economically vulnerable as a result of these factors, and also as a young man who would have difficulty adjusting to the globally-focussed society of South Korea. The Tribunal considers there is a real chance [Applicant 2] would experience broader societal discrimination such as general disapproval and resentment from South Koreans, and social isolation. There is also a real chance that he would face discrimination and stigma due to his mental health issues and that his mental health may deteriorate to the extent that he would be unfit to undertake employment, function on a day-to-day basis in society and he may become suicidal.
The Tribunal finds that this discrimination the applicants would face as North Korean defectors would be ongoing, rather than limited, due to its long-standing and deep roots in South Korean society. Taking into account the applicants’ personal attributes and vulnerabilities, the Tribunal finds that the depth and extent of the different types of discrimination they would face in South Korea would be exacerbated by their vulnerable mental health and these factors, when considered cumulatively, amount to serious harm to each of the applicants. The Tribunal does not consider the chance of this harm to be remote or far-fetched.
The applicants submit that the persecution they will face in South Korea is for reasons of their:
· nationality as North Koreans;
· membership of the particular social group of defectors from North Korea living in South Korea; and
· imputed and/or actual political opinion as supporters of the North Korean regime.
The Tribunal has found above that the applicants are nationals of North Korea. The Tribunal has also considered whether the applicants are members of a particular social group which can be described as ‘defectors from North Korea living in South Korea’.
The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:
… First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …
100. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However, it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.
101. Based on the country information referred to above, the Tribunal accepts that ‘defectors from North Korea living in South Korea’ is a particular social group, as the characteristic of being a North Korean defector living in South Korea is common to all members of the group and the applicants share this characteristic. The characteristic distinguishes the group from society and the common characteristic is not the shared fear of persecution. Given the Tribunal’s decision in this case, the Tribunal does not consider it necessary in the circumstances to decide whether the applicants would also face persecution based on an imputed and/or actual political opinion as supporters of the North Korean regime.
102. Based on the Tribunal’s findings and the country information referred to above, the Tribunal finds that the applicants fear being persecuted for reasons of their nationality as North Koreans and for reason of their membership of a particular social group, namely, defectors in North Korea living in South Korea, and there is a real chance they would be persecuted for these reasons if they returned to South Korea in the reasonably foreseeable future. The Tribunal finds the real chance of persecution relates to all areas of South Korea.
103. The Tribunal is satisfied that the persecution will be directed at the applicants for the essential and significant reason of their nationality and membership of the particular social group identified above, it involves serious harm to them and it involves systematic or discriminatory conduct in the sense that it is deliberate or intentional rather than random or accidental, and it is for a Convention reason.
104. The Tribunal accepts that the applicants have modified their behaviour in the past in South Korea to attempt to conceal their past, including where they were born and their true identities and that they would feel compelled to attempt to do this again if they returned to South Korea. According to the High Court’s decision in S395/2002 v MIMA,[48] in considering whether an applicant’s fear of persecution for a Convention reason is well-founded, the Tribunal needs to consider what an applicant claims they would or would not do if they returned to their country and whether their actions are motivated by a fear or threat of persecution. The Tribunal must consider whether the fear of persecution held by the applicant is the fear that, unless they act to avoid the harmful conduct, they will suffer harm. In such cases, it can be the threat of serious harm that constitutes the persecution.[49] In the case of the applicants, the Tribunal accepts that it is the fear of harm that would lead them to attempt to conceal their origins and identities if they returned to South Korea and they would do this in order to avoid persecution. The Tribunal has found above the applicants face a real chance of serious harm, which means their fear of persecution is well-founded.
[48] S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.
[49] S395, [43].
105. The Tribunal has considered whether the South Korean authorities are willing and able to protect the applicants from the persecution described above which they would face from South Korean society at large.
106. Harm from non-State agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29].
107. The Tribunal has referred above to country information about the types of societal discrimination faced by North Korean defectors in South Korea despite the programs put in place by the South Korean government and NGOs to assist these people, and the reasons for this, as well as the lack of broad anti-discrimination laws in South Korea.
108. Based on the country information referred to above, it appears to the Tribunal that despite the South Korean government’s efforts to support North Korean defectors, the government appears to be unable to prevent persecution of North Korean defectors by broad elements of South Korean society which manifests itself as the widespread, entrenched types of discrimination the Tribunal has referred to above. Further, the Tribunal finds that the lack of broad anti-discrimination laws in South Korea means that the South Korean government cannot provide the level of practical and legal protection to North Korean defectors in South Korea, including the applicants, that they are entitled to expect and that the vast majority of other OECD countries, for example, provide to their citizens. This leads the Tribunal to find that the South Korean State is unable to provide effective protection to the applicants against discrimination in South Korea that would be sufficient to reduce the chance of them facing serious harm to less than a real chance and, therefore, the applicants have a well-founded fear of persecution.
109. In light of the Tribunal’s findings above, it is not necessary for the Tribunal to make findings about the applicants’ other claims for protection.
110. Accordingly, the Tribunal finds that each of the applicants is outside the country of their nationality and, owing to a well-founded fear of persecution, they are unable or unwilling to avail himself of the protection of that country. Therefore, the Tribunal finds that they meet the definition of refugee in Article 1A(2) of the Refugees Convention.
111. As the applicants meet the definition of refugee in Article 1A(2), the Tribunal is satisfied they are persons in respect of whom Australia has protection obligations under s 36(2)(a).
112. As the Tribunal has found that the applicants meet the refugee criterion in s 36(2)(a) of the Act, it is not necessary to consider whether the applicants meet the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
Conclusion
113. For the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicants satisfy the criterion set out in s 36(2)(a).
DECISION
114. The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that each of the applicants meets s 36(2)(a) of the Migration Act.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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