2017721 (Refugee)

2017721 (Refugee) [2021] AATA 630 (1 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2017721
COUNTRY OF REFERENCE:                   Korea, Republic Of
MEMBER:Luke Hardy
DATE:1 February 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 February 2021 at 12:13pm
CATCHWORDS
REFUGEE – protection visa – Republic of Korea – Federal Circuit Court remittal – fear of revenge by alleged gangster – particular social group – actual or imputed police informant – actual or suspected affiliate of the drug dealer – called to attend a police station for questions – credibility concerns – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 May 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant] is a citizen of the Republic of Korea (South Korea/Korea). He first arrived in Australia on an three-month electric travel authority (ETA) [in] May 2017. He obtained a student visa onshore on 30 August 2017. That visa ceased on 28 August 2018. [The applicant] was granted a bridging visa pending the outcome of a further student visa application. That application was refused on 5 April 2019 and, in May 2019, [the applicant] became an unlawful non-citizen.
[The applicant] lodged a protection visa application on 3 December 2019. The delegate did not interview him, and refused to grant the visa on 21 May 2020.
The Tribunal, differently-constituted, affirmed the delegate’s decision on 23 July 2020, and that decision was set aside under consent orders by the Federal Circuit Court on 8 December 2020. The matter was remitted to the Tribunal on the grounds of the previously-constituted Tribunal having failed to notify [the applicant] of its reliance on information given in his application in another matter, a bridging visa application, including information that was subject to a non-disclosure certificate under s.375A of the Act. The Minister conceded that in failing to notify [the applicant] appropriately, the previously-constituted Tribunal denied him procedural fairness.
The matter was constituted to me and I set the matter for a video hearing through a telephone on 21 January 2020, with [the applicant] in [the] IDC and the Tribunal in Sydney. The hearing was adjourned three times, resuming on 21 January 2020 with a second interpreter, then adjourning to 27 January 2020 for a telephone hearing, due to lack of an available video link on that date, and briefly adjourning when the third telephone interpreter’s booking ran out, to resume with a fourth interpreter.
All in all, there were two hearings, each divided into two halves. The only problems with communication involved [the applicant] sometimes continuing to speak while the interpreter was interpreting into English. This problem took some time and practice to ameliorate, but was eventually overcome. I am confident that [the applicant] had ample opportunity to present his case.
I have obtained all the information I have about [the applicant]’s claims and migration history from what he said in his original protection visa application and from the evidence he gave me at his various Tribunal hearings; this includes evidence he gave the previously-constituted Tribunal, which is summarised in that Tribunal’s decision record number 2009219. I did not have any regard to information he might have provided in other visa applications. The previously-constituted Tribunal refers to that irrelevant visa application in paragraph 11 of its decision. I have not seen, let alone given any weight to, any of the information referred to in that paragraph, let alone any documents described as having been covered by the s.375A non-disclosure certificate. I discussed all this with [the applicant] and he indicated that he was satisfied on that matter. In passing, I asked him if he knew why his case had been remitted back to the Tribunal and he said he did not.
[The applicant] initially offered his mother in Korea as a potential witness during the first of the two hearings, providing me with her telephone number in Korea. I listened to what he said his mother might be able to offer and, for the most part, it was all about a letter or message she might have kept that she might also be able to send. At the same time, he said he and his mother had recently gone through a period of not talking to each other but had reconciled at least enough to get in touch around New Year’s Day to exchange greetings. I asked him if he had asked his mother, during that call, to find and send the letter and he said he had not. He said that if I wanted her to send anything he would ask her if she had it and, if so, to send it. He spoke in this way, at another stage in the hearing, about other information that he was not sure of being able to locate from an Internet chat provider. Having duly considered [the applicant]’s interests I did not call his mother as a witness. I also note he did not present her contact details for the second hearing. I told him that, in light of what he had told me about the information that hoped other people had been able to retain, if it still existed, I was not inclined to provide specific timeframes to receive evidence from witnesses, or set aside a specific period for submission of further material. I informed [the applicant] that I would consider all evidence received by the Tribunal up to the time of decision which I might make in a matter of days or weeks.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (“the complementary protection criterion”). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department
In his protection visa application, with which, he evidently said, he had not been assisted by anyone, [the applicant] said he came from Kangnam in Seoul where he had never been employed.
[The applicant] claimed to have studied between October 2017 and October 2018 at an institution in Queensland where he failed to achieve satisfactory academic results.
Asked in his protection visa application form to discuss his claims, [the applicant] made a very small number of arguably bald statements. He said he left Korea when he did because “At first I just wanted to leave Korea.” He said he would face the following harm on return to Korea: “I will be inter[r]ogated by authorities [in the] Korean Government.” He said that interrogation would include “physical harm” and torture. He did not give any suggestion as to why he would be harmed. He said he had not sought any state protection because “Higher authorities are corrupted and I can’t be safe from them.” He said he had not tried to relocate within Korea away from places where he might face harm merely because “It[‘]s hard to relocate in South Korea.” He said he thus “removed” himself to Australia.
[The applicant] indicated several times that he would provide a further statement detailing his claims but none was evidently ever submitted.
The delegate made a decision in this matter without calling [the applicant] to an interview.
Evidence to the previously-constituted Tribunal
The following citation captures the evidence that [the applicant] presented to and discussed with the previously-constituted Tribunal:
22. In the Tribunal hearing the applicant indicated that the reason why he cannot return to South
Korea is because a former friend has accused the applicant of revealing to authorities the
former friend’s criminal conduct which has caused his former friend to be sentenced to 4
years[’] imprisonment in relation to drug issues and belonging to a gang. This former friend
has threatened the applicant that he will kill him. The former friend has now been released
from detention.
23. The applicant indicated in the hearing that a significant reason that he came to Australia in
2017 was to escape harm from his former friend. The applicant indicates that, in Korea,
when this person went to prison in 2015 that he threatened the applicant in a phone
conversation. The applicant also indicates that in 2019 his mother sent to his mobile phone
photographs of two letters that had been sent to the applicant in South Korea from his former
friend threatening the applicant.
24. The applicant indicated in the hearing that it is these letters from his mobile phone that he
had wanted to have attached to his written protection visa application. However, the
applicant indicated that these documents are not retrievable because his mobile phone is
broken.
25. The applicant asked for additional time to seek to provide these letters to the Tribunal. The
Tribunal declined this request to the applicant on the basis that he had had approximately six
months since making the application for the protection visa to provide relevant documents.
The applicant had not provided information to the Tribunal that suggested the ready ability to
provide the documents in the reasonably foreseeable future.
26. The Tribunal put to the applicant in the hearing the significant difference between the claims
in the written protection visa application form and the applicant’s claims for protection in the
hearing. The original written claims had referred to a fear by the applicant of being
interrogated by Korean authorities and the government and facing physical harm and torture.
Reference is made to higher authorities being corrupt and that he cannot be safe from them.
In contrast, in the Tribunal hearing the applicant makes quite different claims in relation to,
not harm from authorities, but harm from a former friend who will harm the applicant because
of his former friend’s belief that the applicant turned him in to authorities.
27. In response, the applicant indicated that he was a bit embarrassed by the written claims. The
applicant initially indicated in the hearing that he had the help of a person in immigration
detention in completing the application form for the protection visa. However, this person did
not listen to what the applicant was telling him about his truthful claims and simply made up
other claims.
28. The Tribunal put to the applicant in the hearing that had great difficulty accepting that if the
applicant had had truthful claims as to fearing harm and needing protection that these
truthful claims would not have been included in the application form for the protection visa
and that the person assisting him would have included these truthful claims rather than
making up his own claims.
29. In response, the applicant indicated that he did not, in fact, tell this person who was helping
him about his truthful claims because he was fearful that this information would be
inappropriately disseminated.
30. The Tribunal noted to the applicant that this explanation was inconsistent with the evidence
that he had just given to the Tribunal that he had told this person helping him about his
truthful claims, but that this person did not listen to him. The applicant in response repeated
that he did not tell this person helping him his truthful claims because he did not want the information inappropriately disseminated.
Evidence to the presently-constituted Tribunal
[The applicant] told me he arrived in Australia on a visitor visa in May 2017 and then applied successfully for a student visa. He described having failed to achieve satisfactory academic results. He talked about how his second student visa application had been unsuccessful. He said his bridging visa expired in May (or June, he said) 2019. He said that he did not know at the time that the bridging visa had expired. The last one for which he applied, before lodging his protection visa application, was on 28 December 2018. I can see that he might have genuinely thought it had not been due to run out until 10 May 2019, as that was its technical run-out date in the event of a visa decision not yet having been made.
In any event, [the applicant] said he was surprised to be informed by authorities that he no longer had a valid visa when he encountered authorities in November 2019. He said he was then detained by the Department of Home Affairs (the Department). I asked him to describe his plans upon having been detained and he aid he just wanted to get out of detention, say, with a student visa or any visa. He said he paid $10,000 to a friend called [Mr A] to help him to apply for a bridging visa that would let him out of detention. He said that [Mr A] first helped him apply for a bridging visa on the basis of a student visa application, and then for a “different” visa that was also refused. He said he was not granted bridging visas on either occasion. He said that [Mr A] asked him to pay a further $10,000, which he paid. He said [Mr A] them lodged a protection visa on his behalf.
I asked [the applicant] to tell me what claims had been made in his original protection visa application and he said he still did not know, because he had left everything to [Mr A] who, he claimed, resided in [Suburb 1] NSW. He said to me that he did not even see his protection visa application and did not know what claims had been made in that application. This information contradicts what [the applicant] told the previously-constituted Tribunal, when he was told what his original claims had been and said he was embarrassed about them because they were not true. Also, contrary to attributing the work to [Mr A], he had told the previously-constituted Tribunal that the person who helped him complete and lodge his protection visa application was a fellow Immigration detainee.
[The applicant] said that he and [Mr A] had been friends for some three years in Australia. He said that he had already told [Mr A], some time before he was detained, of the real reasons why he was afraid to return to Korea. He indicated that this was why he trusted [Mr A] to state his claims correctly in his application form. He said he and [Mr A] were close friends although he had never known or taken down [Mr A]’s address and did not know his Korean given name. He said he later came to distrust [Mr A], however, being unsatisfied with the work he had done on his behalf, and asked some fellow detainees to help him. He said that [Mr A] did not really want him to get out of detention because he had given [Mr A] $20,000. I put to him that this seemed illogical because, if he had agreed to pay [Mr A] $20,000 to get him out of detention and then later was able to leave detention and enter the community, that would have been what the $20,000 had been intended to achieve: [Mr A] was less logically to be viewed as owing him anything in light of such a success. In reply, [the applicant] said, “If he wanted me out, I’d be out already.”
At different times in the hearing he told me these somewhat varying and frequently reversed facts:
·     that [Mr A] helped him to write and submit his original protection visa application and that the “story” it contained was indeed the one about the gangster threatening to kill him over his suspected “grassing” of that gangster to the police;
·     that he had no idea that his original protection visa application had made no reference to the gangster and that this must have been an omission on the part of the fellow detainees who helped him with that original protection visa application;
·     that [Mr A] helped him with his review application after the others had messed up his original application;
·     that the others in detention helped him with his review application after [Mr A] messed up his original application;
·     that [Mr A] indeed was the person who filled out his original application (contrary to what he had told the previously-constituted Tribunal);
·     that he did not yet know, until the presently-constituted Tribunal hearing, that the claims in his original protection visa application had been claimed fears of being interrogated by Korean authorities rather than claims about the gangster.
[The applicant] did not resolve the above-cited inconsistencies. Generally, however, he adhered to the claims about the gangster as being the true claims in his case, denying several times that he had any fear of the South Korean authorities, and more often than not he said that [Mr A], rather than he himself, had been responsible for putting everything on paper, especially the original protection visa application.

I asked [the applicant] to tell me about his relationship with the alleged gangster. He said the gangster whose name was [Mr B], was a friend of his friend, who he met at a drinking session about six or seven years ago, which would have been around two years before he, [the applicant], came to Australia. He later contradicted this saying that, rather than being a friend of his friend, [Mr B] was just present with his friends the night he, [the applicant], was drinking with his own friends, and that as the night wore on the groups intermingled a bit and some of the individuals including him and [Mr B] made acquaintance. He said they were initially friendly, although he never contacted [Mr B] himself, telling me that it was always [Mr B] who contacted him “at home.” I asked [the applicant] what kind of activities he and [Mr B] engaged in together and he initially said, “nothing out of the ordinary: dinner, drinks, coffee.” Initially he told me that [Mr B] never tried to involve him in illicit activities.
However, [the applicant] later contradicted some of these claims He said he had only ever given his mobile telephone number to [Mr B] and that [Mr B] never did call him “at home” as such. He also said that [Mr B] tried unsuccessfully to get him interested in taking drugs. He said that [Mr B] would often demand that he provide his identity under false pretences so that [Mr B] could check into motels under his name. Not only did these activities seem reasonably “out of the ordinary” but [the applicant] said that [Mr B] became forceful and threatening from an early stage of their acquaintance with each other and that he often tried to avoid him by not answering his telephone.
I asked [the applicant] how he first discerned that [Mr B] was or might be a criminal, and he said he had been able to discern or impute this from [Mr B] having tattoos, there being a commonly perceived link in Korea between tattoos and criminality. He said [Mr B] also told him early on that he belonged to a gang and introduced him to gangster friends. He indicated that this was before he discovered the harsh side of [Mr B]’s personality.
[The applicant] said he began trying to avoid [Mr B]. When I asked him what measures he attempted he just said that he tried not to answer [Mr B]’s calls. He said this failed because [Mr B] kept changing his number. This evidence seemed somewhat contradicted when he said that [Mr B] usually contacted him via a chatting App called “[App 1].” In any event, [the applicant] did not suggest ever having tried to change his own telephone number or, say, deleting his [App 1] account, or any other measure to avoid hearing from [Mr B].
I asked [the applicant] if [Mr B] had ever described to him in any detail at all any aspects of his activities in drug dealing, such as clients, modes of operation, dates and places of transactions, etc., and he said [Mr B] did not. He said he saw [Mr B] with drugs about him. He said he sometimes heard [Mr B] talk about drugs. He indicated to me that [Mr B] never confided anything of significance to him, which makes it hard to conceive why [Mr B] though he was the “grass” in [Mr B]’s case.
[The applicant] claimed that [Mr B] used to beat him up, called him his “slave” and treated him like one, and knew where he lived. He said he had to break off his engagement with his fiancée in the course of escaping from Korea. However, in the claimed circumstances, he did not provide a satisfactory explanation as to why [Mr B] trusted him or how he was able to exercise power over him. When I raised this with him, he said that early on [Mr B] had thought he had money. He said that, from the very beginning, whenever [Mr B] asked him out to eat and drink, he expected him, [the applicant], to pay for everything.
[The applicant] said that [Mr B] was convicted in a matter of dealing in illicit drugs. He said that [Mr B] blamed him for tipping off the police. [The applicant] told me he believes that [Mr B] will kill him because friends of the latter had “kind of told” him of two people he, [Mr B], had killed.
However, [the applicant] also told me that at no stage had [Mr B] ever described to him any of his criminal activities or ventures in any detail, let alone the matter in which he was eventually arrested, charged and convicted. [The applicant] appeared to have no knowledge at all about the actual matter that caused [Mr B] to encounter the police. His distance from that particular side of [Mr B]’s day-to-day life seemed emphasised by the evidence to the effect that [Mr B] only seemed to engage him for quite limited purposes: social eating and drinking; and helping to sign him illicitly into motels. Even as he told me that he sometimes overheard [Mr B] talking about drugs, he appeared never to have heard anything specific. On the evidence he gave me, it struck me as far-fetched that [Mr B] would ever have suspected him of being able to tell the police anything of potential value to them.
One potential factor that one might regard as having caused [Mr B] to distrust [the applicant] was the fact that he tried over time to avoid being contacted; it is conceivable that [Mr B] might have sensed this and come in time to suspect him of treachery. However, [the applicant] said that [Mr B] had never trusted him from the start and had behaved throughout the whole time of their acquaintance as though confident over his power over him.
[The applicant] said he found out [Mr B] considered him to have been a police informant when a group of gangsters visited a [business] (one of two) that he ran in Kangnam, told him [Mr B] had been arrested and also told him that [Mr B] blamed him for “grassing” to the police. He said he fled Korea within days. He said he went to [Country 1] for two months, then [Country 2] for two months, and then [Country 3] for about a month where he obtained his ETA for Australia.
[The applicant] went on to say that some time after he left Korea, [Mr B] wrote to his mother, blaming him for “grassing” and threatening to harm him. I entertained the possibility that [Mr B] might have begun suspecting him around then, because he fled the country so soon after the other gangsters rattled him, as it were, about being a likely informer. However, [the applicant] insisted throughout his testimony that he was never privy to any of [Mr B]’s business operations at all. He had purportedly never, ever shown to [Mr B] any curiosity in his activities. These facts seemed to render it unlikely that [Mr B] would have considered him an informer.
I asked [the applicant] if he had retained any evidence of his acquaintance with [Mr B] and he said he was not sure if that had been possible because they had spoken through a Internet “App”. When I put to him that he would logically have been a user of the same App, he said that [Mr B] always used a variety of false names and different telephone numbers. He indicated generally that [Mr B] did not say much in writing that could risk harming or incriminating him. He also indicated it might be impossible to obtain evidence of their messages or calls. He said that he could try but, on his having suggested that this might bear no fruit at all, and given the many months he had already had to try to access such material, I said that I felt disinclined to grant a specific, prescribed period of time in which to try and undertake what appeared to be a fishing expedition,” as it were. I invited [the applicant] to comment on this, and he asked if producing such material was crucial to success in his application. I said that was a matter for him and that I was still at the stage of asking questions rather than decision-making. I then put to him that evidence of messages from a friend with arguably “colourful” affiliations might not in itself be evidence of an intention on the part of that person to persecute him. I told [the applicant] that I would nevertheless consider all of the evidence in this matter that was before me up to the time of my decision, which might be in a matter of days or weeks.
I asked [the applicant] about the alleged communication from [Mr B] to his mother, a subject first discussed with the previously-constituted Tribunal. He had told the previously-constituted Tribunal that his mother had sent him sent, to his mobile telephone, photographs of two letters; he told me that she had sent him a “text.” He told me that he had sked her to send “details” and that her reply was simply that he should “stay in Australia.” [The applicant] confirmed that there were probably copies of the material his mother had received: letters indicating that [Mr B] wanted to punish him for having “grassed” to the police. I put to him that in all the time since lodging his original protection visa application in December 2019, he had not produced any evidence of these. In reply, he said that this was because he and his mother had gone through a period of “not getting on.” I put to him that this sounded inconsistent with his claims about her apparently having advised him to stay in Australia for his safety. He then appeared to change his evidence about his mother, indicating that he had asked her to send the “letter” (singular, apparently) whereupon she had told him that she had lost it. The claim about his mother not sending him evidence of [Mr B]’s letter(s) because she had lost it (or them) struck me as being inconsistent with the claim about her having sent photographs of two letters to his mobile telephone. In that version of events he had received the material but later lost it when his device was broken; according to the same version, it appears that he did not ask for the photographs to be re-sent, irrespective of whether the original(s) had gone missing.
[The applicant] said he could ask his mother to send evidence of the letters if I wanted to see it. I put to him that he had just told me she had lost the evidence. He said his mother told him she had misplaced the letters during house moving “here and there.” I asked him if his mother had since managed to find the evidence of the letter(s) and he said she had not done so. Then he varied his response, saying he had not even discussed the matter with her since she reported having lost it. He said that he last spoke to his mother around New Year’s Day, but had only exchanged traditional pleasantries with her.
Hearing all this, I put to [the applicant] that I felt disinclined to take, or set aside time to await, evidence from his mother, and gave him an opportunity to comment. In response, he said he would ask his mother if she could find the letter(s). I told him I would consider all evidence before me up to the time of my decision, which I might make in a matter of days or weeks.
I asked [the applicant] if it might indeed be possible that the authorities in Korea wanted to question, or “interrogate” him. He said no, and asked me why I would suggest such a thing. I put to him that they might want to ask him what he knows about [Mr B]. He said this was not the case. He also said he was very upset that I would suggest the Korean police might have linked him with [Mr B].
I put to [the applicant] that it was not unusual for the Tribunal sometimes to ask challenging questions and hear what an applicant had to say by way of comments or response. I put to him that it seemed reasonable to pose the question I was now asking since his original claims to the Department were about being an apparently innocent man whom the police were looking to interrogate. In response he indicated that he was not aware of his protection visa application ever having included such claims. This position, as shown above, was inconsistent with numerous indications of his awareness of the claims that appeared in his primary application, and inconsistent with his having previously stated that he was embarrassed about them.
[The applicant] reiterated that he had no fear of being questioned by the police in any matter. He emphasised that none of his real claims related to treatment of any kind the authorities. I then put to him that would not be unusual if he did have some apprehensions about the authorities taking an interest in him: an innocent man caught between a gangster and the authorities who had prosecuted him. [The applicant] then seemed to change his evidence: he said the police did ask him to report to a station for questioning but he failed to report because he had already left Korea.
By this evidence, [the applicant]’s initial claims seemed to make some sense, except that he had repeatedly denied that they were his own claims.
I put to [the applicant] that on the one hand he denied ever having claimed that he might be of interest to the police and, on the other, described having been asked to come in for questioning. I put to him that this evidence was inconsistent. In reply, he said this was due to a language barrier. I have considered that explanation and, on the evidence before me, regard it as baseless.
At the end of the hearing, [the applicant] mentioned some socially meritorious activities he had engaged in whilst living in the community in Australia.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220.
[2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[4]
[3] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[4] Sun v MIBP [2016] FCAFC 52 at [69].
I accept that [the applicant] is a South Korean national from [southern] Seoul. I accept that he had two small businesses there selling [product]. I find that his written claims about never having worked in Korea are not reliable. [The applicant] also claims to have never worked in Australia but nevertheless to have been able to pay a friend $20,000 to help him obtain a bridging visa. It is hard to conceive that this claim is true on the whole. In any event, [the applicant] gave vague, inconsistent and implausible evidence about that friend, whom he called [Mr A], being solely responsible for the major discrepancy in his original and later claims. On the evidence before me, I do not accept that [the applicant] entrusted the completion of his original protection visa application to another party only to discover much later on that the claims made there were, as he repeatedly stated, false.
Generally, I find on the evidence before me that much of [the applicant]’s evidence about the agency of a person he called [Mr A] to have been improvised and otherwise fabricated.
I find on the evidence before me that [the applicant] is the author of the claims that appeared in his original protection visa application. I find that those claims on their own are insufficiently detailed, as well as being so lacking in nexus with any of the five reasons in s.5J(1)(a) of the Act, such that I am not satisfied that they are indicative of a real chance of [the applicant] being persecuted in the reasonably foreseeable future in South Korea.
As to the second iteration of claims in this case, I find that [the applicant]’s evidence about how he met and befriended the alleged gangster [Mr B] is inconsistent, far-fetched and generally quite vague. I find [the applicant]’s description of the range of social activities he engaged in with [Mr B] also to be somewhat inconsistent: on the one hand just drinks, meals and coffee; on the other frequent pressure to commit identity fraud. [the applicant] did not provide any satisfactory information as to why this man he described was able either to trust or wield power over him. [The applicant]’s descriptions of the agency of [Mr B] in his history to date struck me as suffering from a lack of reliability similar to that which I have found in his claims about his reliance on [Mr A]. I find it hard to believe on the evidence before me that [Mr B] would have blamed [the applicant] for his having been arrested and jailed, given [the applicant]’s claims about [Mr B] never having discussed details of his criminal operations. Overall, I do not accept as factual the relationship between [the applicant] and [Mr B] as [the applicant] has described it in his evidence. I am not satisfied on the evidence before me that [Mr B] seeks revenge against [the applicant] over [Mr B]’s arrest and sentencing in a drug dealing matter.
In any event, I am not satisfied that [the applicant]’s second iteration of claims have any nexus with any of the five reasons in s.5J(1)(a) of the Act. Whereas one may attempt to argue that gangsters are known to persecute actual or imputed police informants and that “police informants” are a cognisable group capable of being defined as a “particular social group,” [the applicant]’s claims, at their best, are about an apprehension of individual, criminal revenge from an individual over an individual action he, [the applicant], is imputed to have taken.
As seen from the reasoning above, I have rejected entirely the more recent claims as inventions and embellishments, and rejected the first claims as vague and unsupported assertions that [the applicant] himself has emphatically and repeatedly disowned. In such conclusions, there is no gangster, whether it is [Mr B] or another, and no revenge plot.
However, there was a moment, late in the second hearing, of what seemed like some factual clarity. This came when [the applicant] said that he was called to attend a police station for questions, or interrogation, about his relationship with the already-arrested [Mr B], but had already left Korea by the time the police caught up with him in this way. This information appeared to link the two different sets of claims in a way that gave them more the appearance of continuity than of discrepancy.
This late claim, if true, presents [the applicant] as an actual or suspected affiliate of the drug dealer [Mr B], in whom the police have what may well be some arguably legitimate interest in their mandated role of enforcing laws of general application in South Korea. This claim also helps to add credibility to the original, barely articulated set of claims, although it does not, in my view, help me to be satisfied as to the veracity of [the applicant]’s description of his relationship with [Mr B], or of his claim about [Mr B] considering him to be a police informant. At best, this claim suggests, yes, that the Korean police may interrogate him when he returns to Korea, and, depending on the facts before them, may even prosecute him in relation to some manifestation of his connection with the criminal underworld, say, as an accessory to a committed offence. However, none of the evidence before me suggests that this would happen on a discriminatory basis or other than in the enforcement of laws of general application. In addition, I give weight to the fact that [the applicant] would be entitled to being defended and to the fact that South Korean courts are independent.[5]
[5] US Department of State, 2019 Country Reports on Human Rights Practices: Republic of Korea, section 1.E,

Finally, allowing that this late claim may true, I nevertheless find that it has no nexus to s.5J(1)(a) of the Act.
On the evidence before me, I am not satisfied that [the applicant] faces a real chance of being persecuted in South Korea in the reasonably foreseeable future for any of the reasons cited in s.5J(1)(a) of the Act. His claimed fear is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are 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.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a citizen of South Korea, I find that South Korea is the “receiving country” in this case.
I find that the harm [the applicant] identifies in his claims appears to include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
[The applicant]’s claims to complementary protection are essentially the same as his refugee status claims. His claims have failed as refugee status claims due to their lack of nexus with s.5J(1)(a), their lack of credibility and their failure to meet the “real chance” test. In view of their lack of credibility and their failure to meet the “real chance” test, those claims can no more succeed as complementary protection claims.
For clarity, I am not satisfied on the evidence before me that [the applicant] faces a real risk of significant harm from gangsters in South Korea. I am not satisfied that [the applicant] faces a real risk of being subjected to any form of significant harm by the Korean authorities.
Supposing that there is some truth in the late claim about the Korean police seeking to investigate [the applicant] over any connection he might have with the crimes of [Mr B] or some other drug dealer, the harm he claims to fear here is lawful sanction that is not inconsistent with the Articles of the ICCPR. Therefore, as far as this claim is concerned, I am not satisfied that he would face significant harm for the purposes of s.36(2)(aa).
On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to South Korea, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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.
…

[2021] AATA 630

1 February 2021

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