2203872 (Refugee)

This matter concerned an application for a protection visa by a national of South Korea. The applicant had previously applied for a Partner visa, which was refused, and had been on a bridging visa since 2013. The applicant claimed that he had compulsory military service obligations in South Korea, and that failure to comply with these obligations would result in imprisonment, severe financial difficulties, and limitations on his basic human rights, including travel restrictions and the publication of his personal details online. The applicant also indicated, in a written submission to the Tribunal, that he was gay. The delegate refused the protection visa application, finding that the applicant did not have a well-founded fear of persecution or a claim for complementary protection. The case was before the Federal Court on remittal.

The primary legal issues before the court were whether the applicant had established a well-founded fear of persecution under section 36(2)(a) of the Migration Act 1958 (Cth) or whether he was owed complementary protection under section 36(2)(aa) of the Act. Specifically, the court was required to consider the implications of the applicant's compulsory military service obligations in South Korea and the potential consequences of his failure to comply, as well as the potential risks he might face as a gay man in South Korea. The court also had to consider the Tribunal's application of Ministerial Direction No. 84, the Refugee Law Guidelines, and the Complementary Protection Guidelines.

The court noted that if a person does not meet the refugee criterion, they may still be granted a visa if Australia has protection obligations because there is a real risk of significant harm as a necessary and foreseeable consequence of removal. The court reviewed the applicant's claims regarding the penalties for evading military service, including imprisonment, loss of working rights, and public disclosure of personal details. The court also considered the applicant's assertion of being gay, which was raised in a written submission to the Tribunal. The court acknowledged that the delegate had not interviewed the applicant.

The decision under review was remitted by the Federal Court.