2203872 (Refugee)

2203872 (Refugee) [2022] AATA 5138 (8 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Cindy Zhao
CASE NUMBER:  2203872
COUNTRY OF REFERENCE:                   Korea, Republic Of
MEMBER:Melissa McAdam
DATE:8 December 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 08 December 2022 at 5:55pm
CATCHWORDS
REFUGEE – protection visa – South Korea – Federal Court remittal – compulsory military service obligations – conscientious objector – alternative service options – breach of overseas travel permission rules – laws of general application – particular social group – gay men in South Korea – discrimination, intimidation, violence, and isolation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chen Shi Hai v MIMA (2000) 201 CLR 293
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 3 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of the Republic of Korea applied for the visa on 5 July 2016.
The applicant applied to the Tribunal for review of the delegate’s decision on 14 March 2017. The Tribunal as previously constituted[1] affirmed the delegate’s decision. The applicant sought review of the Tribunal’s purported decision and that decision was set aside by the Federal Court of Australia. The matter is now before the Tribunal as currently constituted, pursuant to an order of the Court.
[1] AAT File Number 1704758
The applicant was represented in relation to the review.
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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, 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.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.
SUMMARY OF CLAIMS AND EVIDENCE
Visa history
In August 2013 the applicant applied for a Partner visa in Australia and his application was refused by the department. He applied for review of that decision to the AAT and the AAT affirmed the decision in June 2016.
Protection visa application
The following is a summary of the claims and information the applicant provided in his 5 July 2016 Protection visa application:
a.He was born in [year] in South Korea. He submitted his Republic of Korea passport.
b.He is single and Christian.
c.He works in hospitality and sales.
d.His parents and brother are living in South Korea.
e.He has military service obligations in South Korea.
f.He left South Korea to study and travel in Australia. He last arrived in Australia on February 2013 on a Student visa.
g.In January 2013 he had to return to South Korea as he still had the compulsory military obligations and therefore either had to undergo the military service or request another year's extension. He applied for permanent residency in Australia based upon his relationship in 2013 and has been on a bridging visa since then.
h.In January 2014 he was informed that he had to return to South Korea and undergo military service. He again requested an extension to stay overseas explaining his circumstances, that he was waiting for the decision on his application for permanent residency. On a bridging visa he was unable to travel overseas and his passport had expired. His request was declined and he was informed of the disadvantages of not following the procedures.
i.The penalty for failing to return to South Korea to undergo compulsory military service is imprisonment for a maximum of three years. The compulsory military service obligation lasts until the age of 37. Usually military service is for 2 years, however the period can vary.
j.If he ever goes back to South Korea he will be in jail for 3 years. He will experience severe financial difficulties as his working rights will be cancelled until the age of 40. He will experience severe disadvantage to his basic human rights as his personal details will be published on the Internet and there will be a travel limitation placed upon him.
k.He neither owns or inherited financial luxury from previous generations so he does not have the privilege of not having to work. After imprisonment, he will be 32, and unemployed for 8 years. Finally when his working right is reinstated, he will be too much out of the job market, with antiquated skills sets from no experience and not working for 10 years prior.
Delegate’s Decision
According to the delegate’s decision record the applicant was not interviewed.
The Delegate was unable to be satisfied that the applicant had a well-founded fear of persecution in the Republic of Korea, or that he was owed complementary protection.
Information to the Tribunal
Written Submission, 19 March 2020
On 19 March 2020 the applicant’s then agent provided a ten page written submission to the Tribunal. The submission mostly contains paragraphs regarding relevant case law. There are a few paragraphs about compulsory military service in South Korea. There are very few references to the applicant in the submission however one or two lines in the submission imply that the applicant is gay or ‘of homosexual preference’.
Tribunal Hearing, 27 March 2020
A hearing with the applicant was conducted by the Tribunal (as previously constituted) by telephone on 27 March 2020. During the hearing the applicant’s conscientious objection was discussed. The presiding member also put to the applicant that Seoul was a very modern city. The member raised concerns about the timings of the applicant’s visa applications. At the hearing the applicant confirmed he is gay. When he was asked about his previous partner visa application, sponsored by a woman in Australia, he then clarified that he is bisexual but more homosexual than heterosexual. His then relationship was genuine but it also confirmed to him that he is homosexual.
The applicant stated that LGBT people hide in South Korea and that South Korea is not an open country. It has taken him a while to ‘come out’. He did come out in 2016 or 2017 as he had been about 4 years in Australia. His former partner has been supportive of him since and she has remained a good friend with him. When he is in Melbourne he sees her and her child. He moved to Brisbane in 2018.
Written Submission, 28 March 2020
On 28 March 2020 the applicant’s agent submitted the following materials on the applicant’s behalf:
·     A written statement from the applicant.
·     Country Information regarding the Corona Virus in South Korea.
·     The applicant’s ‘Civil Petition’ results from the South Korean Authorities regarding his request to extend his stay overseas (in the Korean language with an English translation).
In the applicant’s statement he writes the following:
I believe that enough evidences and claims were not provided at the time of application for my protection visa as a refugee and there are several areas that I would like the AAT to review.
When I first applied for the protection visa, myself belonging to a particular social group LGBT and conscientious objector was omitted. Due to my introvert and shy personality, it took me a while to say this and is a big step for me to open and publicly speak about it.
Also the evidence of my passport/overseas stay permission being denied was missing and therefore I have provided these evidences for AAT review with the recent correspondence from South Korea Consulate (Melbourne) and the Military Manpower Administration in South Korea.
And as outlined from the response from MMA, due to the jail term that I will be serving, I don't agree with the department's claim that I will have the competitive edge when I enter the labour market in South Korea based on my education in Australia and work experiences in some of the renowned international hotels. MMA's response stipulates the restrictions and disadvantage that I will face if I ever return to South Korea. This will remain not only as a criminal record as well as a social stigmatisation and therefore my ability to access employment afterwards will most likely still be compromised.
Furthermore, the discrimination and persecution that I will face as LGBT in the military which I will serve as per the MMA's response when I return to South Korea were not considered during my first visa application decision and therefore I have attached my further claims and supporting documents.
As a LGBT conscientious objector, if I ever return to South Korea, I will face jail terms, the military service, or the alternative service which is in the process of discussion and implementation at the present moment, and restrictions on employments, overseas travels.
Although recently I have heard from the media that South Korea has legalised the alternative military service to conscientious objectors, it is still in the process of being discussed as we speak and there is no precedent case yet. Furthermore, this alternative service is 3 years, double the terms of the normal military, which makes the South Korea the country that offers the longest alternative service in the world. And also I am still convinced that there is still an implementation gap and still conscientious objectors are yet to be provided with genuine alternative service options that are clearly non-punitive.
Furthermore, as per the response from South Korean Military Manpower Administration, I will have to go to the military service, not sure whether I will be given the alternative service option.
I have heard many cases about torments, inhuman treatments and persecutions towards LGBT group in the military in South Korea through media as well as through my close ones.
As an example, [Mr A], a close friend of mine that I have known since my year 7 experienced consistent torture and persecution during his military service. After numerous suicidal attempts, he had to receive psychiatric treatments and then had to finish his term as alternative service in the local office. Even during this time, he was asked and revealed the reason why he was discharged from the military and constant humiliation and harassment stopped him from integrating himself into the society. Also he confided in me as he wasn't the only case during his time, but he had heard and seen even the extreme case of this persecution and one of his colleagues committed a suicide, and then died.
Furthermore, due to the increasing difficulty in recruiting military soldiers in South Korea, the military manpower agency is dissimulating these truths and making the military environment a lot nicer than how it is in reality.
Given my age, I gave a benefit of doubt that it might have changed over time, however another friend of mine, [Mr B], confided in me that still it is the prevalent case in South Korea. Especially he confided me that he was suffering from continuous harassments, physical abuse and torture and ended up being dispelled from the army and threatened not to reveal this fact to the public.
South Korea is not as open as Australia towards LGBT group in the society. Even it is worse in the military as especially they are seen to be a threat to undermine the masculinity of the military.
My mother in South Korea who is not aware that I belong to LGBT group. I haven't told her because I know how she would react to this. But even without knowing my identity, she has been always concerned of me going to the military because of my feminine nature and she knew that I would be tortured and physically abused. She doesn’t know that my visa application for the protection has been declined, only knows that I have applied for the residency and says still she prays for my residency to be approved. If she ever finds out that I am to return to South Korea and go to the military, she will be grieving out of the fact that I will have to face the jail term, military service where I will be abused and tortured by those who are much younger than myself.
I know a lot of LGBT hide their identity and 'serve in silence' in the military because they are well aware of what's waiting for them once they are 'outed'. However I am way too obvious. Usually people notice me right away the moment they see me.
The applicant’s ‘Civil Petition Results’ contains the following:
- A message dated 13 March 2020 from an official of the Military Manpower Association stating the applicant was expected to return to South Korea by 29 January 2014 and he has been charged with breaching the obligations of his overseas travel permission and will be subject to investigation on return. The document states also that if a person stays overseas without ‘overseas travel (extended) permission’ the following restrictions are imposed:
·Imprisonment from 1 to 5 years [s 94(1) Military Act] or under three years [s 94(2) Military Act];
·Obligation to perform military service imposed until the age of 37;
·Work and business restrictions under s 76 Military Act; and
·Personal information revealed on the Internet under s 70 Military Act.
Written Submission, 11 July 2022
On 11 July 2022 the applicant’s representative submitted the following materials to the Tribunal:
- The applicant’s Queensland Marriage Certificate showing his marriage to his husband [in] January 2022.
- The applicant’s Qld Driver’s Licence showing his surname as his husband’s surname.
Written Submission, 15 September 2022
On 15 September 2022 the applicant’s representative submitted the following materials to the Tribunal:
-     A submission from the representative.
-     A letter from the applicant’s doctor dated 15 July 2021 regarding the applicant’s anxiety and suicidal thoughts.
-     A letter from the applicant’s psychologist dated 1 September 2022 regarding treatment of the applicant for his significant anxiety.
-     An emailed invitation to attend the applicant and his husband’s ‘elopement wedding ceremony’ in January 2022.
-     A letter from a friend of the applicant in support of his application.
-     An email from the applicant’s husband stating that the applicant is against war and would be bullied in the army.
-     Photographs of the applicant with his husband.
-     An affidavit by the applicant to the Federal Court of Australia, regarding the applicant’s mental health and delay in seeking appeal.
-     Another copy of the ‘Civil Petition Results’, dated 13 March 2020, from the Military Manpower Administration in South Korea, regarding the applicant’s infringements of military law and the actions that will be taken against him, including his liability to imprisonment.
-     An email, dated 13 March 2020, to the applicant from the South Korean consulate in Melbourne stating that the applicant cannot get an overseas travel permit even if he obtains permanent residence in Australia; and that his punishment will be decided by the court and Korean Military Manpower Administration.
In the representative’s submission she outlines the following:
The applicant returned to South Korea in 2013 to extend his passport. It was extended for only one year because of his outstanding military service obligations. He has not returned again to South Korea.
In January 2014 he was required to return to South Korea to complete his compulsory military service obligations. He requested a further extension of his passport and his request was denied.
In March 2020 he enquired of the Korean Consulate in Melbourne if he could extend his passport and was informed he could only obtain a travel document if certain conditions were fulfilled, because he had not completed his military service.
He is a conscientious objector and belongs to the LGBTI group. He fears return to South Korea because he is required to do military service and will suffer from discrimination, torture, abuse and other forms of abuse as a LGBTI member in the military. He will be required to do three years of alternative service which amounts to inhuman and degrading punishment.
He will be liable to three years imprisonment for failing to return to South Korea to complete his military service. He will also be required to complete his military service until the age of 37, his work rights will be cancelled until he is 40, and his personal information published in the internet affecting his ability to obtain employment and making him a social outcast.
People can tell he is LGBTI from his voice, demeanour and behaviour. It took him a while to speak publicly about his identity as a LGBTI. In South Korea many LGBTI members have to hide their identity because of the cultural and social stigma. This also applied to him so that he could not openly declare his sexuality.
His experience with a female partner confirmed his homosexual orientation further and was the reason he came out in about 2016.
He met his husband in September 2021 and it was love at first sight. [Mr C] proposed three days later. They married in front of close friends [in] January 2022 in [location]. His husband’s family are supportive and celebrate the wedding. They have all grieved together for his husband’s father’s recent passing.
The applicant is a pacifist. He does yoga and is vegetarian. He is Christian and objects to war and violence. He has persuaded his husband not to follow in his father’s footsteps by joining the army.
His fear of return to South Korea has caused him to suffer mental illness so that he sought medical and psychological treatment.
The applicant will suffer significant harm in South Korea if he is required to serve in the military or to perform alternative service in a prison.
There is no relocation option available to the applicant in South Korea.
The applicant cannot apply for a Partner visa onshore because of the s 48 bar. He cannot apply off-shore either because he cannot obtain a South Korean passport.

In the submission the representative also sets out country information relating to:
-     The treatment of LGBT soldiers in the South Korea military, including laws which prescribe imprisonment for same sex sexual activity by soldiers and the government’s justification for the laws as a necessary banning of ‘indecent conduct’.
-     Laws and practices with respect to conscientious objectors in South Korea.
-     Laws and consequences under the Military Act for failing to return to South Korea within the permitted time, including:
Section 94 - Imprisonment from1 year to 5 years; or imprisonment under 3 years;
Section 71 - Imposing obligation of enlisting for military until age of 37
Section 76 - Limited to appointment and recruitment of public servant and executive officers, and limited to permission for business to be allowed by government
Section 81.2 - Revealing personal information of offenders of overseas travel permission obligation, to Internet (homepage)
Section 70 - Limitation to overseas travel permission.
Tribunal Hearing, 16 September 2022
The applicant appeared again before the Tribunal (as currently constituted) on 16 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband.
The following is a summary of the information provided by the applicant at the hearing:
a.He described his marriage as an ‘elopement’ because it was a quick and short wedding, in the middle of the Covid pandemic. There was a lot of uncertainty in terms of the invited guests. The applicant is very simple so the wedding involved just a few people in [location]. The ceremony was conducted by a celebrant and lasted ten to fifteen minutes.
b.The applicant met his now husband on 25 September last year. He was going through a very distressful time because of the Federal Court proceedings. He asked for an adjournment because of his mental health. He and his partner met through a dating website. They talked and texted over a few days and they just knew. The applicant felt he was the one.
c.He thinks marriage is important, based upon traditional values. Same sex marriage was only legalised recently. He had never thought of marriage before. His husband is the same, he really cherishes traditional values.
d.The applicant knows another gay man who married in Argentina and came to Australia with his husband. They are now in New York.
e.The applicant and his husband live together in the city. The applicant’s husband moved into the applicant’s place in October last year.
f.They regularly go to [Town 1] together where the applicant’s in-laws live. They have also been to Melbourne together. The applicant does not have any family in Australia. He considers his close friends in Melbourne his ‘family’. He told his friends he was visiting Melbourne with his husband and they immediately said they would be there for him. They all had dinner together.
g.The applicant has a gay friend in Australia, [Ms D], who was a witness at the applicant’s wedding. She is now in Vietnam for her grandmother who is dying of cancer. She is an Australian citizen through her relationship with another lesbian.
h.The applicant has lots of friends and it doesn’t matter to him if they are gay or lesbian or not. He does not socialise much. He mainly does yoga. He also goes for walks with his husband and friends, and he studies. He doesn’t go clubbing as it is not his thing. He doesn’t enjoy drinking and going out. His husband is the same.
i.He and his husband both like cinema. When they first met they went to the cinema together. The applicant watches all sorts of movies. He doesn’t really watch television but his husband has a Netflix account. The applicant is really boring and just watches the program ‘Friends’ on television. He likes the character Monica because she is obsessed with cleaning.
j.When the applicant’s father-in-law was diagnosed they tried to spend as much time as possible with him. They would go to his place in [Town 1] for dinner once a week. They would buy food to cook for his in-laws, every Friday night.
k.The applicant changed his job when his husband’s father was diagnosed with MND so that his hours could be more flexible to help his husband’s parents.
l.The applicant and his husband want to move to a new home but they won’t be able to this year because the rental market is too expensive. They want to live between the city and [Town 1] so that they are close to both his husband’s workplace and his husband’s mother’s home.
m.The applicant’s husband helped him a lot during the applicant’s court matter. The applicant was on medication which was not working. He was referred to a psychiatrist. The day before this the applicant was taken to hospital and his husband was upset because he was not allowed to go with the applicant because of Covid. The applicant was taken by himself to hospital in an ambulance. He is currently on anti-anxiety medication.
n.The applicant’s and his husband’s families did not attend their wedding as it was just for friends. They intended to do a family wedding in September. His husband’s family knew they were engaged. They took it really well. When the applicant first met his parents-in-law they were very non-judgmental.
o.The applicant told his family about the wedding the day before it happened. His mother could not come to Australia because of Covid. When things settle he wants to bring his family here, especially his mother, and get married again here. He and his husband just had a quick small wedding with just 12 people. They plan to one day have a traditional wedding with marquees etcetera.
p.The applicant’s family was shocked to hear of his marriage because they thought the applicant would be really alone because he is really boring, doesn’t go out, and just studies. He is not like others. His family were happy for him.
q.The applicant’s family knew he was gay. It was quite obvious to his parents because he is quite effeminate. Everyone has known since the applicant was little, but he is quite shy and introverted.
r.He told his family he moved to Brisbane. He told them he was ready to see someone and likely a man. His mother did not speak to the applicant about any concerns. She is religious and being gay is not acceptable. That was her only concern. She said the bible does not allow it. The applicant said he knows but that is how he is.
s.The applicant’s husband has not spoken with the applicant’s family because they do not speak English. He doesn’t even say hello to them because the applicant’s parents don’t want to say hello. They do want to say hello and the applicant’s husband just says hi, but not to the applicant’s father or brother because they abused the applicant in the past.
t.The applicant has one sibling. He and the applicant’s father both physically and emotionally abused the applicant. The applicant saw his father beat his mother when he was 6. They got divorced and his father then targeted the applicant’s brother. When the applicant and his brother lived together at boarding school the applicant’s brother would abuse him. Maybe he did this for revenge because he had experienced violence from their father. The applicant’s brother was abusive to the applicant until he left high school, when the applicant was 13. The applicant then lived with his father who was emotionally abusive to the applicant until the applicant left for University at age 18.
u.Until the applicant was 14 his father was hitting him. Then the applicant told his father it not acceptable, that his father had abused the applicant’s mother and brother and they did not speak up but the applicant would speak up. He told his father ‘do not hit me’. After that his father would not let the applicant sleep. He would arrive home drunk in the early morning and would knock on the bedroom door to wake the applicant up.
v.The applicant is close to his mother. She has no choice but to accept he is gay. She lets him do what he wants because she could not live with him since he was 6 years old. She is grateful that he has grown up well. She knew how his father was.
w.His brother lived with his mother until last year. She asks why he is not like the applicant. The applicant never caused trouble and got straight As and never went out.
x.In South Korea the applicant could not identify as gay although he knew he was. He knew he was attracted to men and women at the same time and he was confused. He was at a boys’ school from years 7 to 12. He was aware of having crushes on girls. He probably supressed himself as he knew it was unacceptable to be gay and he was going through puberty. He also liked a boy at the time and thought maybe they could go out together like normal people but deep down he knew it would not happen.
y.His school days were very long and during high school he started living with his mother who is very religious. So he would study and then go to church from 9 pm until midnight.
z.He is religious now but in a different way. He believes there is a God but can’t call himself a Christian. He has a belief and considers himself very spiritual.
aa.He does not speak much with his previous partner in Australia. She lives with a different partner in Melbourne. After they broke up she told the applicant she knew he is gay.
bb.People in Australia know he is gay. He tells people he has a husband. His friends in South Korea who have a social media network also know he is gay. He has an Instagram account in his married name as he has taken his husband’s surname. He took his husband’s name because he did not want his father’s name because his father abused him.
cc.Some of his friends in South Korea have reacted negatively and told him that being gay is not socially acceptable. They say it is not a good thing, it is not natural.
dd.In South Korea gay men cannot get married and it is very difficult for them to adopt children. On the surface South Korea is okay but there history is based upon Confucius and society is very traditional about men and women. People in South Korea will question the applicant. When he lived in South Korea homosexuality was taboo and was not something talked about.
ee.The applicant misses South Korea. It is his home country. He has more memories there than here. He misses speaking Korean, the food, and friends.
ff.It is difficult for gay men to get jobs in South Korea. It is not socially acceptable to identify as gay. The applicant’s mother would be shocked if he tried to live openly as a gay man. It would affect his relationship with his mother and he doesn’t think they could live together any more as she is very religious and would try to turn him straight. Some of his friends would refuse to see him and would be critical of him. Employers are not allowed to discriminate but they would find reasons not to employ him. It would be difficult for him to rent a place to live because people believe that gay men have a bad lifestyle, partying and bringing in prostitutes.
gg.He does not know if the June 2021 Supreme Court decision has changed anything. The Court overturned a case of two men who had to serve in the military but no official amendment has been made.
hh.If people do alternative service to military service they are required to serve three years working in a prison. Prisons are confined environments so he could be easily abused working in a prison.
ii.The applicant had some gay friends when he was at University. They dated and went to gay meetings. The applicant would talk to them about being attracted to a guy and they would try to encourage him.
jj.It will be difficult for the applicant to adjust back to the culture in South Korea. It will be hard for him to get a job after he is released from jail. He will be past 40 and will have an adverse report, including a jail report.
The following is a summary of the information provided at the hearing by the applicant’s husband:
a.He has become the state champion in [specified sport]. The applicant has helped him in this because the applicant cooks nutritious meals for him so that he is eating much better these days.
b.He and the applicant plan to move out of their city apartment to somewhere near [Suburb 1] so they are closer to his mother’s home. They want to get some dogs.
c.In March they went to Melbourne for the applicant’s birthday and a belated honeymoon.
Written Submission, 28 September 2022
On 28 September 2022 the applicant submitted the following materials:
-    Screen shots of text messages between the applicant and his husband’s mother, in which she speaks fondly about the applicant being part of the family.
-    Photographs taken by the applicant at his husband’s brother’s wedding.
-    A photograph of the applicant playing with his husband’s niece and nephew.
-    A screenshot of a photograph and message about the applicant’s engagement and engagement ring.
-    A screenshot of the applicant’s husband’s Face Book account showing his relationship status as ‘married’.
-    Photographs of the applicant and his husband together.
-    A screenshot of an Instagram post in which the applicant’s husband describes the applicant as his “other half”.
Country Information
The 2021 USDOS Country Human Rights Reports for South Korea contains the following:
All male citizens must complete 18-21 months of mandatory military service; the penalty for refusing conscription is 18 months’ imprisonment. In 2020 the Military Manpower Administration began implementing an alternative service option for conscientious objectors, who in the past would have been prosecuted. Conscientious objectors approved for alternate service work for 36 months at correctional facilities. Jehovah’s Witnesses and international human rights observers said they believed the longer alternative service period was punitive and noted that alternative service personnel had curfews and restricted access to electronic devices. Prosecutors appealed three alternative service decisions during the year, and Jehovah’s Witnesses said those three individuals were serving 18-month prison sentences for objecting to military service.
…
The law prohibits discrimination based on sexual orientation and authorizes the National Human Rights Commission to review cases of such discrimination, although its recommended relief measures are nonbinding. The law does not specifically prohibit discrimination based on gender identity. The Military Criminal Act’s “disgraceful conduct” clause criminalizes consensual sexual acts between men in the military with up to two years’ imprisonment, regardless of consent and whether the act took place on a military installation. At the end of June NGOs reported there were two indictments and one open investigation under this law. The two individuals whose cases went to trial received suspended sentences.
Despite the NHRCK’s repeated calls for the National Assembly to adopt a comprehensive antidiscrimination law that would penalize with imprisonment or fines discriminatory practices based on gender, age, race, religion, or sexual orientation, among others, the National Assembly failed to pass it (see section 6, Systemic Racial or Ethnic Violence and Discrimination). Politically powerful conservative Christian groups that reject LGBTQI+ rights vehemently opposed such a law.
In September Human Rights Watch released a report detailing the challenges faced by LGBTQI+ youth in schools. The report, based on 67 interviews with students and teachers, revealed widespread bullying, violence, and harassment against LGBTQI+ students. These students were isolated due to their inability to rely on teachers or mental health professionals for help and support because they risked being outed. Transgender students faced additional stresses when their gender identity was not recognized, as schools set rules for uniforms, restroom or changing facility use, and classrooms based on gender.
NGOs noted the legal prohibition of sexual activity between men in the military led to abuse of LGBTQI+ soldiers. Given that all young men complete mandatory military service, NGOs argued the existence of the law provided justification for violence against LGBTQI+ individuals within the military and in broader society. In March Byun Hui-su died by suicide. She was expelled from the army after having gender-affirming surgery in 2020. Byun wished to continue serving in the military as a woman, but the military classified her as having a “class three mental and physical disability.” The NHRCK determined that the army should reverse the decision, noting that being transgender was not a disability. In October the Daejeon District Court ordered a posthumous cancellation of Byun’s discharge from the military, saying the military’s decision was unfair. While the Ministry of National Defense requested the government appeal the Daejeon court decision, the Ministry of Justice declined to do so, citing “consideration of facts, legal principles, respect for human dignity, and public sentiment.”
The 2022 Freedom House report on South Korea states:
Same-sex sexual relations are not restricted for the general population, but soldiers who engage in such activity are subject to a “disgraceful conduct” provision of the Military Criminal Act and face two-year prison terms. While existing human rights legislation bars discrimination based on sexual orientation, it does not offer specific penalties for violations, and transgender people are not explicitly protected.
… Personal social freedoms are largely respected, and women and men generally have equal rights in divorce and custody matters, though same-sex marriage is not legal in South Korea. The country’s health system does not allow same-sex couples to register for health insurance as spouses, leading to a lawsuit in February 2021.
The 2019 Amnesty International Report “South Korea - Serving in Silence” contains the following:
There is no law criminalizing same-sex sexual activity between civilians in South Korea; however, Article 92-6 of the Military Criminal Act punishes sexual activity between men with up to two years in prison. The military code does more than legislate against particular sexual acts; it institutionalizes discrimination, reinforces systematic disadvantages for gay, bisexual and transgender people and risks inciting or justifying violence against them inside the military and in the broader society. This report demonstrates how soldiers experience discrimination, intimidation, violence and isolation as the direct or indirect result of the criminalization of sex between men in the military code.
… soldiers experience discrimination, intimidation, violence, isolation and impunity as the direct or indirect result of the criminalization of sex between men in the military.
… Criminalization contributes to an environment where soldiers who do not conform to existing gender norms – including gay men, bisexual men, transgender women and non-binary people – find it extremely difficult to fulfil compulsory military service free from bullying, harassment, discrimination and violence at the hands of their commanding officers and their peers.
… power dynamics in the military made it difficult for individuals to report their superiors and Article 92-6 of the Military Criminal Act means male survivors of rape and other sexual violence may be even more reluctant to reclaim their rights due to fear of prosecution. Survivors could be penalized – and according to NGOs, have been in some cases – if the authorities determine the sexual act to have been consensual.
… LGBTI people in South Korea face pervasive discrimination and many hide their sexual orientation and/or gender identity from their families. Same-sex couples are not recognized under the law or by the judiciary. ‚Conversion therapy‛, which claims to change a person’s sexual orientation, based upon the incorrect assumption that homosexuality is a mental disorder requiring treatment, is common.
… sexual violence committed against actual or perceived gay men usually occurs as a form of punishment for ‚not being masculine enough‛. Soldiers risk being targeted not only based on their actual sexual orientation and gender identity, but even for not conforming to the expected gender expression or appearance, such as walking in an ‘effeminate’ manner, having fairer skin or speaking in a higher-pitched voice. On top of being subjected to severe violence in the military, authorities isolated several gay soldiers, either in barracks or mental health treatment facilities.[2]
[2] Amnesty International, 2019, ‘South Korea: Serving in Silence: LGBTI People in South Korea’s Military’, July.

In the 2019 Franklin and Marshall Global Barometer of Gay Rights report South Korea was ranked 94^th amongst nations of the world and described as a ‘persecuting’ country with regard to its LGBTI population.
In December 2021 an article in East Asia Forum described South Korea as having “a still discriminatory and homophobic South Korean social, political, economic and cultural landscape, particularly influenced by the Christian right.” This is despite the growth in visibility for the LGBTQI community in recent years:
The growth in LGBTQ organisations, groups, publications and spaces has been huge. In 2019, there were 27 activist organisations, eight networks, 16 media outlets or organisations, seven research groups and two mentoring or crisis centres. There is substantial growth in LGBTQ university organisations, with over 70 organisations registered in 2019. The first university group, Come Together, was formed in 1995 at Yonsei University and for many years, only the top three universities had an LGBTQ organisation. This signals a broader shift in LGBTQ politics which lies in the hands of the younger generation. [3]
[3] East Asia Forum, 'The queer way of South Korea', Timothy Gitzen, 17 December 2021.
In September 2021 the Financial Times reported that the South Korean government was being accused of not doing enough to combat discrimination against the LGBT community in South Korea:
According to victims, teachers, mental health service providers, and international human rights and legal experts, South Korean LGBT members were ostracised and bullied in schools, suffered online abuse and, in some cases, physically harassed. A new report by Human Rights Watch marks the latest international criticism of the administration of President Moon Jae-in, a former human rights lawyer, over what the US group described as “pervasive” discrimination against LGBT communities, as well as women and racial and ethnic minorities.
… Lawmakers in Seoul have been debating a new anti-discrimination law, which includes banning discrimination based on sexual orientation and gender identity. But for years the laws have faced fierce opposition by conservative groups, many of which have close links to the country’s evangelical Christian groups. Conservative politicians have also sought to remove sexual orientation from the ambit of the country’s human rights commission. HRW noted problems not only of government inaction but also policies that they said fostered prejudice, such as state-funded mental health programmes that discouraged students from being LGBT.
Ahead of the report’s release, South Korea’s gender equality ministry and the human rights commission did not immediately respond to requests for comment. DDing Dong, the country’s main helpline for LGBT youths, has reported a sharp increase in demand for its services with mental health and suicide concerns prevalent. Lee Young-eun*, a woman now in her early 20s, was among those ostracised by her closest friends when she came out as gay in her final year of school. One teacher advised Lee that with sufficient prayer her sexuality could be reversed.
She said the government had a “long way to go” and that new laws were needed to provide equality for LGBT partnerships. Lee and her partner, she said, have had difficulties being accepted for joint bank loans and when she was recently admitted to hospital for emergency care, her partner was not allowed to visit because she could not qualify as a legal spouse or guardian.
The release of the 193-page report will probably be met with fierce opposition from some corners of South Korean social media, religious groups and conservative politicians and commentators. In May last year, LGBT members faced a torrent of online attacks after intense media coverage blaming a coronavirus outbreak on people partying in Seoul nightclubs supposedly popular with the community. Researchers have attributed the widespread discrimination in South Korean society to both the evangelical Christian groups, which hold significant sway in local politics, as well as traditional family models and values with deeply embedded gender roles.[4]
[4] FINANCIAL TIMES, 2021, “SOUTH KOREA GOVERNMENT CRITICISED FOR NOT PROTECTING LGBT COMMUNITY”, 14 SEPTEMBER.
The September 2021 Human Rights Watch report referred to in the above article states:
The National Human Rights Commission of Korea (NHRCK), like many other domestic and international human rights bodies, has affirmed that LGBT people are entitled to the same human rights as everyone else. Even as domestic public opinion warms to LGBT rights and neighboring governments take steps toward LGBT equality, however, South Korea’s government has failed to make meaningful progress, citing intense religious and conservative opposition to justify inaction. Despite longstanding advocacy efforts, the National Assembly of South Korea has yet to approve a comprehensive anti-discrimination law, leaving LGBT people vulnerable to being fired, evicted, or mistreated because of their sexual orientation or gender identity.
… The bullying and discrimination that young LGBT people experience is not only a matter of government inaction, but the product of existing policies that foster discrimination and isolation. The government has excluded discussions of LGBT people from sexual education curricula, funded mental health programs where counselors have discouraged students from being LGBT, and made it difficult for transgender students to attend school consistent with their gender identity.
… The discrimination that LGBT people experience is part of a broader context of discriminatory attitudes and conduct in South Korea. Discrimination based on race, sex, religion, and nationality is often expressed openly, and acutely felt by members of minority groups. The prevalence of discriminatory attitudes in public discourse can add to the marginalization that minority groups experience and make protective legislation even more important.
… While the government has been slow to protect the rights of LGBT people, public opinion in South Korea is rapidly changing. In 2021, a Gallup opinion poll found that 81 percent of the public believed it was unfair to fire an employee because of their sexual orientation, and 38 percent favored the legalization of marriage for same-sex couples. Responses to the poll varied by age; 73 percent of respondents in their twenties supported the legalization of marriage for same-sex couples, compared to only 17 percent of respondents over the age of sixty. In 2017 and 2018, Busan, Jeju Island, Incheon, Gwangju, and Jeonju all had their first Pride festivals. In 2019, nearly 70,000 people attended the Pride parade in Seoul, making it the largest LGBT event in the country’s history.
… Nonetheless, a vocal segment of the public has strongly opposed any recognition of LGBT rights in the country. In 2018, participants at the Incheon Queer Culture Festival were physically attacked and verbally abused by protesters, and in 2019, thousands of police officers were assigned to protect LGBT people and their allies from a much larger crowd of opponents. In 2019, organizers cancelled the Busan Queer Culture Festival, saying that they could not guarantee the safety of participants after local authorities denied permission to hold the event.
Efforts to protect LGBT rights have faced stiff resistance from highly organized Protestant groups, which have significant influence in the country, strong political ties, and the ability to mobilize large groups of people against legislation.
Lawmakers have cited this opposition to justify inaction on proposals to protect LGBT people from discrimination in law and policy. Despite longstanding advocacy efforts, the National Assembly of South Korea has yet to approve a comprehensive anti-discrimination law, leaving LGBT people vulnerable to being fired, evicted, or mistreated because of their sexual orientation or gender identity.
Instead, some lawmakers have repeatedly sought to remove “sexual orientation” from the mandate of the National Human Rights Commission of Korea (NHRCK), in an attempt to prevent that body from investigating and addressing discrimination against LGBT people in education, employment, public services, and other areas. South Korea’s Military Criminal Act prohibits same-sex conduct among soldiers, punishing such acts with up to two years in prison. The government has not recognized same-sex partnerships, making it difficult for same-sex couples to access health insurance, pension, and survivor benefits. While courts have established stringent requirements for legal gender recognition, these are highly restrictive and have not been formalized into law and policy.[5]
[5] Human Rights Watch, 2021, ‘I thought of myself as defective – Neglecting the rights of LGBT Youth in South Korean Schools”, 14 September.
The current President of South Korea, Yoon Suk Yeol, belongs to the conservative People Power Party. In February 2022 during his election campaign (in which he was subsequently elected) he provided no response to the posed question from Human Rights Watch - “Please provide any additional details you would like to add regarding your policy on the protection of the rights of lesbian, gay, bisexual and transgender people”. To the preceding two related questions he provided the following published remarks:
I believe that the prohibition of same-sex sexual acts of military persons is necessary given the special circumstances of the military to prevent sexual violence between people of the same sex.
Although one may have the right to choose their sexual orientation, I think we need a careful approach to the issue because denying biologically assigned genders and recognizing same-sex couples could have significant social impact.[6]
[6] Human Rights Watch, 2022, “South Korea Presidential Candidate Questionnaire Responses”, 28 February.
In January 2022 Human Rights Watch reported upon South Korea’s Supreme Court declining to recognise a gay couple as common law spouses. This meant that the couple’s national health insurance would not recognise them as dependants.[7] The article also state that “[t]he lack of protection for same-sex couples can have serious consequences in a country where discrimination against lesbian, gay, bisexual, and transgender (LGBT) people in employment, housing, and other domains is widespread.”
[7] Human Rights Watch, 2022, “South Korean Court Declines to Recognize Same-Sex Partners”, 10 January.
In a 2017-2020 survey in South Korea, 79.6% of respondents included homosexuals as persons they would not like to have as neighbours, and 61.4% considered homosexuality ‘not justifiable’.[8]
[8] WVS Database (worldvaluessurvey.org)
In a key development in April 2022 South Korea’s Supreme Court overturned the conviction of two soldiers prosecuted under Article 92-6 on the Military Criminal Act prohibiting same-sex activity in the military. The judgment stated that the use of article 92-6 to punish consensual sex “outside of military settings” jeopardised the autonomy equality and dignity of soldiers. The Court held that Article 96-2 “should not be applied to consensual sex between male service members outside of military facilities during off-duty hours”. The Court did not rule the provision unconstitutional. [9]
[9] Human Rights Watch, 2022, “South Korean Court Limits ‘Sodomy’ Law”, 25 April. See also The Guardian, 2022, “South Korea’s Highest Court Overturns Military Convictions of Two Gay Soldiers”, 22 April; and Out in the World: South Korea's highest court delivers ground-breaking decision for gay soldiers: Bay Area Reporter (ebar.com).
In mid-2020 South Korea reportedly introduced alternatives to active military service:
On June 30 [2020], South Korea officially began taking applications from conscientious objectors for alternative service to the country’s mandatory military service for all men. Instead of serving around two years in the military, men can now apply for the new alternative service - working for three years in prisons or detention centers.[10]
[10] The Diplomat, 2020, “South Korea’s Conscientious Objectors are Getting an Alternative to Military service”, 9 July.
However the alternative service option offered has been described as ‘alternative punishment’ of conscientious objectors by organisations such as Amnesty International:
The new system involves working in a jail or other correctional facilities for three years – twice as long as the typical 18-month military service. “Instead of being presented with a genuine alternative to fulfil their service requirements, conscientious objectors are effectively given an alternative punishment because of their religious and other personal objections to joining the military,” said Jihyun Yoon, Director of Amnesty International Korea.”[11]
[11] AMNESTY INTERNATIONAL, 2022, ‘SOUTH KOREA: DROP CHARGES AGAINST FIRST CONSCIENTIOUS OBJECTOR TO REFUSE ALTERNATIVE SERVICE’, 22 AUGUST.
A September 2022 Time Magazine article also described the alternative service as ‘harsh’ and akin to being imprisoned:
The alternative doesn’t look all that different to jail. In return for being exempted from military service, South Korea’s conscientious objectors are expected to work in the country’s prison system. They’re typically rotated between jobs in prison laundries and kitchens, with stints of administrative duty. They also serve 36 months—twice as long as military conscripts. Although they are given a few weeks’ leave, they have to live in the prisons, where their movements are regulated. …
The government also keeps a public database of evaders. Applicants for conscientious objector status endure intense scrutiny of their private lives - having to satisfy investigators, for example, that they have never played violent video games.
Before the alternative to military service was offered, objectors were jailed, with some 19,000 Jehovah’s Witnesses thrown behind bars over the years for their stance. During the years of martial law in the 1970s, some were tortured, beaten, or even killed. To this day, members of the denomination are social pariahs. Others who manage to avoid service also meet with opprobrium. Nineties K-pop sensation Yoo Seung-jun was due to be drafted in 2002, but he renounced his citizenship just before his call up. There was a huge public backlash and Yoo has been banned from setting foot in South Korea ever since.
Although the law allows civilian service in “areas of public interest” besides prisons, for now work in correctional facilities appears to be the only option. Those serving can only leave their assigned jails on certain days. A 9:30 p.m. curfew is imposed. Phones and other devices must be handed in during working hours.[12]
[12] Time Magazine, 2022, ‘Inside South Korea’s Harsh Alternative to Military Service’, 1 September.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant submitted a copy of his expired Republic of Korea passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied he is a citizen of the Republic of Korea, commonly referred to as South Korea. The Tribunal assesses the applicant’s claims against South Korea as his country of nationality and receiving country.
Credibility
The applicant claims to fear harm in South Korea as a gay man who is required to do compulsory military service in South Korea and who has breached the laws in relation to his overseas travel permission.
Sexual Orientation
The applicant claims that in recent years, while in Australia, he has started identifying as homosexual. He claims that prior to this he felt somewhat bisexual, albeit more homosexual than heterosexual. He states that while living in South Korea he was attracted to both boys and girls, men and women.
The applicant’s evidence about his sexual orientation during his youth in South Korea was somewhat confused and contradictory. At times he would say one thing then later say the opposite, regarding his sexual attraction and his exploration of his sexuality. This may be due to some confusion about his sexual orientation growing up in South Korea or a lack of prior consideration and self-awareness about his past experiences. It may also have been due to some concern upon his part about how his past partner visa application with a woman in Australia would be perceived, if he gave clear evidence of being gay in South Korea. Or there may be some alternative explanation based upon his mental state or a preparedness to give inaccurate evidence.
It is difficult to ascertain why the applicant’s evidence regarding this early period of his life was contradictory. However it appears clear that the applicant is now openly identifying as a gay man and has entered a genuine committed relationship with another man in Australia. He and his husband married in Queensland earlier this year, inviting a small number of friends to witness the ceremony. The applicant submitted his Marriage Certificate and email conversations with a wedding invitee in which she writes candidly about the invitation and her intended presence at the event. He also submitted evidence of them both living together as well as numerous photos which shows them both in natural settings interacting fondly. The applicant also submitted evidence, mobile phone message exchanges and Face Book comments, showing members of his husband’s family have accepted the applicant into their lives and consider him to be his husband’s partner.
The applicant and his partner also gave reasonably detailed evidence about how they met, how their relationship developed and the nature of their relationship together.
The Tribunal found the applicant’s evidence about being gay in Australia persuasive. The Tribunal therefore accepts that the applicant is a gay man, publicly identifies as a gay man and that he is in a gay marriage.
Military Service Obligations
According to South Korea’s Military Service Act every male[13] is required to perform military service from when he attains the age of 18[14], except persons sentenced to imprisonment for six years or more.[15] Males are required to serve in the army for two years, in the navy for two years and two months, and in the air force for two years and four months.[16]
[13] Article 3(1)
[14] Article 8
[15] Article 3(4)
[16] Article 18(2)
Penalties for refusing to do military service include imprisonment for up to three years.[17]
[17] Articles 87 and 88
The applicant was born in 1987 and is therefore over the age of 18. The Tribunal accepts that he is required to perform compulsory military service in South Korea.
Breach of South Korea’s overseas travel laws
Article 70(1)1 of South Korea’s Military Service Act states that a person who is liable for military service, who is over the age of 25, needs to obtain permission to travel abroad.
Article 70(3) of South Korea’s Military Service Act states that if a person has obtained permission to travel abroad and has difficulties returning within the permitted period he will need to obtain permission for an extension of the period, or further permission, for travel abroad.
The terms of permission for overseas travel are prescribed by Presidential Decree.[18]
[18] Article 70(4).
The South Korean government issued ‘Overseas Travel Procedure Guidebook for Conscription Candidates’, issued by the Military Manpower Administration states that up to two years, until the age of 27, is allowed to remain overseas for the purpose of training and education. In relation to an ‘Overseas Emigration Travel Period Extension Permit’ permitted purposes of extended stay are: permanent residence in another country; a parent has permanent residence in another country; living overseas with parents for 5 or more years; multiple citizenship and people who emigrated before the age of 20. People within these categories are permitted to extend their stay up until the age of 37. The extension is not permitted to people who have evaded or are evading conscription.

The applicant has been outside of South Korea since 2013 and his initial Overseas Travel Permit has expired. He has not completed his compulsory military service. The Tribunal accepts that in view of the above official information he would not be eligible for an Overseas Travel Period Extension. The Tribunal accepts that he has been sent an official notice requiring him to return to South Korea to complete is military service, and that a charge has been issued against him. The Tribunal therefore accepts the applicant is in breach of South Korea’s laws regarding overseas travel for persons subject to military service obligations.
Fear of Harm in South Korea
Based on the above findings the applicant will be returning to South Korea as a gay man who remains obligated to complete is compulsory military service obligations and who has breached South Korea’s laws related to overseas stay.
Military Service Obligations
The Tribunal accepts that the applicant is in breach of his military service obligations under South Korean law and will be considered a draft evader on return. Articles 87 and 88 of the Military Service Act would then apply to the applicant so that he will be liable to up to three years imprisonment on return, if he continues to refuse to perform military service. There is available information that these laws and penalties have been applied in South Korea.[19]
[19] SEE E.G. WAR RESISTERS INTERNATIONAL, 2021, ‘SOUTH KOREA: CONSCIENTIOUS OBJECTION ON NON-RELIGIOUS GROUNDS RECOGNISED BY SUPREME COURT AND MMA FIRST TIME’, 15 MARCH.
If the applicant refuses to do active military service he may be permitted to do an alternative service option in satisfaction of his military service obligations, namely three years of service in one of the country’s prisons or detention centres.
If the applicant refuses to perform military service and either is not permitted to do alternative service, or refuses to do so, the Tribunal accepts that there is a real chance he will be subject to three years imprisonment.
Article 76 of the Military Service act contains further sanctions against draft evaders, namely:
- they cannot be employed in the public service;
- they cannot be granted any patent, permission, authorization, license, registration, designation, etc., for various government-authorized, permitted or licensed businesses;
-the above will apply to persons in breach of Article 70 until they attain 40 years of age, unless they complete their military service.
There is also available information to support the applicant’s claim that the Military Manpower Administration does publish a list of the names and details of draft evaders on its government website.[20]
[20] See e.g. World News Today, 2020, ‘Seok Hyun-jun,’including list of evacuees’, 17 December, Yonhap News, 2021, ‘Government discloses personal information of 342 men accused of draft dodging’, 16 December, - the list reportedly included 190 men who had remained overseas.
The Tribunal is therefore also satisfied there is a real chance the applicant will be subject to restrictions on his access to government employment and business registration for some years, and have his personal details officially published as a ‘draft evader’.
Breach of Overseas Travel Permission rules
Article 94 of the Military Service Act prescribes punishment by imprisonment for not more than three years for persons who stay in a foreign country without obtaining the permissions prescribed in Article 70(1) or (3).
Available information shows that people have been convicted of offences under Articles 70 and 94 by the Courts in South Korea. For example, in 2017 South Korea’s Supreme Court dismissed an appeal from a defendant who had been convicted under Article 94 by the District Court for failing to return to South Korea in time after his request for an extended permit was refused.[21]
[21] Supreme Court Decision 2018 Do 618, 11 May 2018,
In view of the available information the Tribunal considers that, as a person who has breached Article 70 of the Military Service Act, there is a real chance the applicant will be subject to imprisonment for up to three years, under Article 94 of the Military Service Act.
Consideration of harm arising from penalties and other provisions.
Regardless of whether or not the applicant does agree to perform military service or alternative military service on return to South Korea he will still be subject to up to three years imprisonment for his breach of Article 70 of the Military service Act.
If the applicant is willing to perform military service he will then be required to complete two years of active military service. If he instead is permitted to complete alternative service he will be required to complete three years’ service in a South Korean prison.
If the applicant refuses to complete any service he will be liable for up to three years imprisonment. There is no information located as to whether the penalty for this offence would or would not be imposed and served concurrently with the penalty for a breach of Article 70.
In summary there is a real chance the applicant will be subject to the following on return to South Korea:
-Up to three years imprisonment for his breach of Article 70; and
-Denial of access government employment until the age of 40; and
-Restriction upon operating businesses until the age of 40; and
-Up to three years imprisonment for evading military service; and/or
-Being required to complete his compulsory military service in the military; and/or
-Being required to complete three years of alternative service in a South Korean prison.
These penalties and requirements arise out of laws of general application in South Korea and are not necessarily harms directed at the applicant for a reason set out in the refugee definition, namely his race, nationality religion, membership of a particular social group, or political opinion. It is arguable that the applicant’s refusal or resistance to performing his military service obligations partly arises out of his conscientious objection to serving in the military. However there is no indication that the government of South Korea is motivated to penalise the applicant because of this personal belief. Further the government has provided an alternative to military service which the applicant may apply for which would not impinge his conscientious objections to serving as a solider. Given the real tensions and prospects of conflict in the region South Korea’s military service requirements may also be seen as part of a legitimate national objective.
Notwithstanding that the above penalties and obligations ostensibly result from laws of general application, the country information indicates that the applicant’s sexual orientation, as a gay man, exposes him to a threat of harm additional to the ordinary service requirements and penalties. As the High Court in Chen Shi Hai stated, laws or policies which ‘… impact adversely upon a particular class or group’ could not properly be described as laws of general application and ‘[t]o say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non-discriminatory, may impact differently on different people and, thus, operate discriminatorily.’[22]
[22] Chen Shi Hai v MIMA (2000) 201 CLR 293 at [19]–[21].
As noted in Amnesty International’s 2019 report gay soldiers in the South Korean military have been subjected to discrimination, intimidation, violence including sexual violence, and isolation.
Further male soldiers engaging in same sex activity are liable to arrest and imprisonment up to two years. Although in April this year the Supreme Court overturned the conviction of two male soldiers for having sex, the judgment confined its ruling to soldiers have sex while off military premises and off-duty. The judgment did not rule more broadly that sex between male soldiers at any time is not a criminal offence. Further as noted it did not find the provision itself, as set out in Article 92-6, was invalid. Since the time of that judgment there has been no indication that the government or the military have relaxed the rules or the policing of male same sex activity in the armed forces.
On the basis of the available information the Tribunal finds that if the applicant performs his compulsory military service, there is a real chance that he will be subject to discrimination, intimidation, violence including sexual violence, and isolation. The Tribunal also finds there is a real chance the applicant will be arrested and imprisoned as a gay man engaging in sexual activity while in the military.
The decision to permit the applicant to perform alternative service rests with a board of South Korea’s Military Manpower Administration. As reported above it is not easy to gain the Board’s approval. The applicant has stated he does not have a formal religion so his ability to persuade the Board to permit him alternative service on religious grounds is lessened. He will have to establish his personal beliefs justify being allowed to perform alternative service. The Tribunal considers there is a real chance he will fail to persuade the Board.
Even if the applicant is successful in being allowed to perform alternative service the Tribunal notes that this service will be in a prison, and so a confined and highly controlled space with stark power imbalances between conscripted men and their superiors, not dissimilar from a military setting. The Tribunal accepts that it is an environment in which a gay man, such as the applicant, would similarly be vulnerable to emotional and physical abuse. The Tribunal therefore considers that if the applicant performs alternative service he will be at a similar risk of discrimination, intimidation, violence, and isolation, albeit in a prison-work setting and for an extended period of 36 months.
The Tribunal considers that discrimination, intimidation, violence, and isolation, arrest and imprisonment amount to serious harm.
In evading military service to avoid the risk of serious harm the applicant has rendered himself subject to arrest and imprisonment for up to three years. In the applicant’s particular circumstances, as a gay man, the Tribunal considers that the imposition or threat of such penalty is persecutory, taking it outside of the bounds of legitimate laws of general application.
The Tribunal is satisfied that the real chance of serious harm to the applicant is for the essential and significant reason of his membership of a particular social group, namely gay men in South Korea.
The Tribunal is satisfied that the harm arises out of systematic and discriminatory conduct in that it will be done to the applicant selectively and intentionally.
The Tribunal is satisfied that there is no available effective protection for the applicant given the harm is a result of the state’s actions.
The Tribunal is therefore satisfied the applicant has a well-founded fear of persecution in the Republic of Korea as defined by s.5J of the Act.
Section 36(3)
There is no evidence or indication that the applicant has a right to enter and reside in any other country. The Tribunal accordingly finds he has no such right and that he is not excluded from Australia’s protection by s.36(3) of the Act.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Melissa McAdam
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.
…

[2022] AATA 5138

8 December 2022

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Statutory Construction

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Natural Justice