2215342 (Refugee)

[2025] ARTA 1724

2215342 (Refugee) [2025] ARTA 1724 (1 July 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:Minister for Immigration and Citizenship

Tribunal Number:  2215342

Tribunal:General Member M Bailey

Date:1 July 2025

Place:Brisbane

Decision:The Tribunal affirms the decisions under review

Statement made on 01 July 2025 at 4:51pm

CATCHWORDS

REFUGEE – protection visa – Korea – fears violence from ex-husband, his family and debt collectors – ex-husband imprisoned for domestic violence – physical, verbal and sexual abuse – mental health – best interests of the child – referral for Ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 351, 369, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089
GLD18 v Minister for Home Affairs [2020] FCAFC 2
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZBQJ v MIMIA [2005] FCA 143
SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725
SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989
SZSPE v Minister for Immigration and Border Protection [2014] FCA 267
SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 October 2022 (delegate) to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 17 April 2019. Both applicants raised claims for protection. The delegate refused to grant the visas as they were not satisfied that either of the applicants engaged Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act.

3. The applicants were represented in relation to the review by a lawyer from the Refugee and Immigration Legal Service (RAILS). The first named applicant (applicant) appeared before the Tribunal at the Brisbane Registry on 19 May 2025 to give evidence and present arguments. Her representative attended the hearing together with a support person. The hearing was conducted with the assistance of a female interpreter in the Korean and English languages.

   BACKGROUND

4. The applicant is [an age]-year-old female from South Korea. The second named applicant (second applicant), currently [age] years old and born in South Korea, is her son. The second applicant was [age] years old at the time of his arrival in Australia.

5. The applicants’ migration history is outlined in the delegate’s refusal decision as follows:

   i.First arrived in Australia [in] September 2018 on Electronic Travel Authority (UD-601) visas

   ii.Departed Australia [in] September 2018

   iii.Arrived in Australia [in] October 2018

   iv.Departed Australia [in] January 2019

   v.Last arrived in Australia [in] January 2019

6. The applicants presented their South Korean passports to the Department of Home Affairs (Department) in support of the protection visa application. Based on the available evidence, I am satisfied that the applicants are citizens of South Korea and South Korea is their receiving country for the purposes of assessing their protection claims. 

   CLAIMS AND EVIDENCE

   Evidence before the Department

7. The applicants were represented in relation to the protection visa application by RAILS. Relevant biographical information from the protection visa application is summarised below:

   i.The applicant was born in Seoul. She resided in Jeonju, North Jeolla Province between 1996 and 2009; in Seoul between 2009 and 2010; and in various parts of Gyeonggi Province between 2010 and October 2018.

   ii.Her religion is Christian. Her family members in South Korea are listed as her mother (deceased); father; stepmother; [sibling, sibling’s partner and their child].

   iii.She completed high school in Jeonju in [year] and undertook tertiary studies in [Area of study 1] between [year span].

   iv.She was employed as [an Occupation 1] in various [workplaces] in South Korea [until] May 2017. She took a period of personal leave between May 2017 and July 2018 due to the death of her first husband.

   v.Her relationship status is ‘Separated’ – the relationship began [in] August 2018 and the date of separation was [in] February 2019.

   vi.Her husband’s name is [Mr A]; he was born in [year] in South Korea and is an Australian permanent resident and South Korean citizen. He has two Australian citizen [children].

8. Regarding her claims for protection, she stated that she left South Korea to be with her husband in Australia. She fears that she will be seriously harmed on return to South Korea by her husband and his family and debt collectors. Her husband has been extremely violent toward her and her son. He has been charged with multiple criminal offences in [State 1] and is currently in jail. She fears that after he has served his sentence, he will find her in South Korea and seriously harm her and her son.

9. As a citizen of South Korea, he can return to South Korea at any time. She fears that her husband will lose his Australian residency because of his criminal offences and blame her and her son for this, as well as for any criminal convictions and loss of contact with his [children].

10. Her husband forced her to borrow money from numerous people in South Korea. She has been receiving messages from these people regarding repayment. As her husband took all her money she is at risk of harm from debt collectors. Her husband associated with criminals in Australia in relation to drug dealing. She fears he has the same associations in South Korea who could harm her.     

11. She would not be able to rely on the South Korean authorities for protection as they rarely protect victims of domestic violence. She understands that it is very difficult to be issued a Domestic Violence Protection Order and fears that her husband would not abide by any such order. She fears that her husband has the resources and contacts to locate her throughout South Korea.

12. Copies of medical records dated [February] 2019 from [Hospital 1] were provided in relation to the second applicant. They state that the second applicant was removed from the family home by police [in] February 2019 following a call from a ‘family friend’ or ‘flat mate’ who moved in five days ago and witnessed the second applicant being abused by [Mr A]. The second applicant is reported as having extensive bruising to his head and limbs and a ‘large haematoma’ to the left side of his head. The notes refer to ‘obvious trauma and likely NAI [non-accidental injury]’ which is the subject of police investigation. The applicant and [Mr A’s children] were also being medically examined.

13. Further details were provided in a statutory declaration of the applicant dated 21 June 2022 (First Statutory Declaration). Relevant details are summarised below:    

    i.Her mother passed away while she was in high school. Her father and stepmother live in Jeonju. She speaks with her father around once per month. She has one [sibling] who lives in Seongnam, Gyeonggi Province. She has contact with her [sibling] around once every three months.

    ii.She lived in Seoul until grade 4 primary school. The family then moved to Jeonju city where she completed primary and high school and a university degree in [Area of study 1].

    iii.She married her first husband in September 2010. Their son, the second applicant, was born [on date]. Her first husband died from [Health condition 1] in July 2017, when her son was [age] years old. 

    iv.She met her second husband, [Mr A], through an online dating platform in mid-August 2018. He and his [children] were living in [State 1]. They had many things in common. He had also lost his wife to [Health condition 1] and was a Christian. His father and grandfather are [in Vocation 1]. They fell in love after speaking online for several weeks. [Mr A] travelled to South Korea in early September 2018 to meet her in person and they decided to marry. They registered their marriage [in] September 2018 in Seoul. [Mr A] wanted the applicants to live with him and his [children] in Australia.

    v.The applicants applied for Tourist visas and left for Australia [in] September 2018. They lived with [Mr A] and his [children] and [Mr A’s sibling and family] in a house in Brisbane. The lived together happily for the first two months. From mid-October 2018 [Mr A] started to behave in a controlling manner toward her. In around early November 2018, [Mr A] started to ‘discipline’ the second applicant, taking him into a separate room and not allowing her to be present. Her son always cried afterwards.

    vi.In early December 2018, after [Mr A’s sibling and family] moved out of the house, [Mr A’s] disciplining of the second applicant escalated both in frequency and force. He was verbally abusive toward him almost daily and the physical abuse escalated. She referred to an incident in early January 2019 where [Mr A] took her son into the bedroom to ‘punish him’. She could hear her son crying but could not enter the room. After [Mr A] left the house, she found that her son had severe bruising and red marks over his face and body. She felt unable to intervene in her husband’s conduct because she was very afraid of him. She felt helpless and under the complete control of her husband. 

    vii.She recalled an incident in December 2018 in which [Mr A] was sexually abusive toward her and shared intimate photos of her without her consent.

    viii.After arriving in Australia, [Mr A] took control of her finances and transferred money out of her accounts. He forced her to borrow money for him from relatives and via credit cards and other companies, telling her that they needed the money to apply for a partner visa and to start a business. He borrowed [amount] South Korean won (KRW) from her father, [amount] KRW from her [sibling] and some money from her maternal cousin. He promised to repay the money by January 2019 but never did. According to the police statement prepared in connection with criminal charges against [Mr A], he forced her to borrow an amount totalling $[amount] (AUD) and he never repaid this money. She cannot repay these loans.

    ix.She and her son returned to South Korea [in] January 2019 because their Tourist visas were expiring. [Mr A] paid for their return tickets to Australia. They applied for another Tourist visa on return to South Korea. They stayed with a member of their church while in South Korea who saw her son’s injuries and advised her to think carefully about returning to Australia and to speak with [Mr A’s] parents in Seoul. She visited [Mr A’s] parents and told them about his behaviour. They acknowledged that their son’s behaviour was wrong but encouraged her to remain with [Mr A]. [Mr A] was also threatening to not repay the money he owed if she did not return.

    x.[In late] January 2019, the applicants returned to [Mr A] in Australia. The abuse resumed [days later]. The applicant recalled incidents [in] January 2019 and [February] 2019 in which [Mr A] was physically and verbally abusive toward her and the second applicant. They did not seek medical help because they did not have Medicare, and the applicant had no money. She did not report [Mr A’s] behaviour to the police because she was afraid and he was constantly monitoring her.

    xi.[In] February 2019 a Korean woman on a working holiday visa (Ms [A]) moved into the house. [Days later] the applicant saw injuries on her son’s body, face and head. She asked Ms [A] to take photos of the injuries on her phone so that [Mr A] would not find them on her own phone. [In] February 2019, [Mr A] messaged her at work telling her to return home as the police were at the house, likely as a result of Ms [A] reporting the abuse. They attended the hospital that night to have her son’s injuries examined. Her son disclosed to her other incidents of physical, verbal and sexual abuse from [Mr A]. Copies of photos taken by [a] Police Service Forensic Services Group and ‘Body Injury Diagrams’ prepared by [a children’s health service] from an examination of the second applicant [in] February 2019 were submitted.

    xii.[Mr A] was charged with various domestic violence related offences. A Domestic Violence Protection Order (Protection Order) was issued by the Brisbane Magistrates Court [in] July 2019 which was valid until [July] 2024. A copy of the Protection Order was provided. [Mr A] pled guilty to [number] offences in relation to the applicants. He was sentenced to two years’ imprisonment.

    xiii.Copies of emails from a [Police] Detective Senior Constable dated [April] 2019 and from a Crown Prosecutor with the Director of Public Prosecutions (DPP) dated [August] 2019 were provided. The DPP email confirms that [Mr A] pled guilty at a sentencing hearing [in] August 2019 in relation to [number] domestic violence offences relating to the applicants which occurred between [December] 2018 and [February] 2019. He was sentenced to two years’ imprisonment and released from jail [in] August 2019, taking into account time served since [February] 2019. He will be on supervised parole until [February] 2021. The DPP confirms there will be no trial and no need for the applicant to give evidence in court. The Protection Order will remain in place until [July] 2024. Regarding [Mr A’s] possible removal from Australia, the DPP advise that this is a matter for the Department and the Department will not disclose whether [Mr A] will or has been removed due to privacy considerations. 

    xiv.After learning that [Mr A] had been released on parole, she called the police in South Korea. She told them about the Protection Order and asked what they could do to protect her if she had to return to South Korea. They told her that they could not do anything until [Mr A] had done something toward her in South Korea.

    xv.She thinks [Mr A] may be removed from Australia because of his criminal convictions. She does not know his current whereabouts but thinks he is in Australia because in March 2022 his divorce lawyers located her at her home. In February 2022 his lawyers placed an advertisement in a Korean English newspaper asking for information regarding her whereabouts. A person from the lawyers’ office came to her home one Sunday afternoon in early March 2022. She doesn’t know how they located her address. She was asked if she wanted a divorce from [Mr A] and given some documents. She did not sign any of these papers as she was fearful of having any contact with [Mr A]. Since that time, she has lived in constant fear of [Mr A] coming to the house. Copies of the newspaper notice and documents relating to a divorce application filed by [Mr A in] January 2022 in the Federal Circuit and Family Court of Australia were provided. The divorce application indicates that [Mr A] was residing in Brisbane together with his [children].

    xvi.She fears that [Mr A] will find and harm her and the second applicant if they return to South Korea, whether he is deported from Australia or not. He will blame her for his convictions and loss of Australian residency and contact with his [children]. It was easy for him to locate her in Australia, even with the Protection Order in place. With his connections across South Korea, he could easily find her or arrange for someone to harm them. She fears that [Mr A] has criminal connections in South Korea, as he does in Australia. He knows her father’s address, which is where she would have to try to stay.

    xvii.[Mr A] has also caused her to be in debt to an amount of more than $[amount] AUD. She has no means to repay this debt; she and her son would be homeless and unable to survive. Her father could not support her financially as he is supporting her stepmother who has [a health condition].

    xviii.Domestic violence is viewed as a private or family matter in South Korea. The police rarely take action until someone is killed. The police told her they could not help her until [Mr A] harmed them in South Korea.

    xix.There is societal stigma regarding divorce in South Korea. Divorced people are not viewed favourably, and her son would be ridiculed and ostracised at school.

    xx.She and her son have received psychological treatment in Australia to deal with their trauma. She fears they would not be able to access the same standard of support in South Korea where mental health issues are viewed negatively by society.

    xxi.A copy of a Psychological Counselling Report relating to the applicant dated 5 April 2022 (2022 Psychological Report) was provided. The report, from a clinical psychologist, states that the applicant has attended 20 counselling sessions between [April] 2021 and [March] 2022. The applicant has been assessed as meeting the diagnostic criteria for Generalised Anxiety Disorder and Major Depressive Disorder. The report also refers to the following:

    a.It is the applicant’s perception that [Mr A] and his [sibling], a [Vocation 2], are chasing her to seek revenge. The Korean community in Brisbane is very small and reputation is very important for a [Vocation 2]. [Mr A’s] criminal convictions have ruined their reputation. [Mr A’s sibling] has told the Korean community that the applicant is a ‘gold-digging swindler’ and [Mr A] is a victim. He advertised in a Korean community newspaper that they are looking for the applicant.

    b.One of the most important protective factors for the applicant is the social, emotional and financial support from her church community, which she has been attending for the past three years

    xxii.[In] June 2022 the applicant was admitted to [Hospital 2] after calling Lifeline for help with suicidal thoughts.

14. In response to a request from the Department for further information, the applicant’s representative submitted a statutory declaration of the applicant dated 1 September 2022 (Second Statutory Declaration) and various supporting documents. Of relevance this includes:

    i.Copy of a marriage certificate between the applicant and [Mr A] (Korean version and English translation) together with a photo of the applicant and [Mr A] of the day of their marriage registration

    ii.Report dated 3 July 2019 from a Mental Health Clinician, Ms [B], relating to the applicant and second applicant’s attendance at ‘mental health focused psychological strategy’ sessions

    iii.Psychological Counselling Progress Report dated 9 August 2022 relating to the applicant’s attendance at 24 sessions between [April] 2021 and [January] 2022

    iv.Korean bank statements dated from September 2018 to January 2019

    v.[Police] Service Witness Statement (unsigned) of the applicant dated [March] 2019 (43 pages); and

    vi.Extract of message exchanges between the applicant and [Mr A in] February 2019.

15. Relevant evidence from the Second Statutory Declaration is summarised below:

    i.Regarding [Mr A’s] background, she stated that he was born and resided in Seoul. As far as she is aware, he did not travel to South Korea while they lived together in Australia. During their marriage [Mr A] was unemployed; his sole source of income was from selling drugs.

    ii.Most of [Mr A’s] family in South Korea are [in Vocation 2] and have lots of connections throughout South Korea via the church. She fears that his family will blame her for [Mr A’s] criminal convictions which has brought shame on them. She fears they will harm her or help [Mr A] to locate her in South Korea. She has not received any threats from [Mr A’s] family while residing in Australia. She also fears [Mr A] could hire a private investigator to locate her if she returns to South Korea.

    iii.The applicant provided details of her residential history in [Australia] since March 2019, including her current address at which she has resided since January 2021. This was the address where a representative from [Mr A’s] lawyer’s office visited her with divorce papers in March 2022.

    iv.Regarding the status of the divorce proceedings, she stated that the application was scheduled for hearing [in] March 2022. She verbally agreed to the divorce when a representative from [Mr A’s] lawyers handed her documents, but she was not asked to sign anything. She has received no further update since that time and is unaware of the outcome of the divorce application.

    v.The last messages she had with [Mr A] were [in] February 2019 when he told her to return home because the police were at the house. The last time she and [Mr A] saw each other was during his sentencing at the Brisbane Magistrates Court [in] August 2019. In December 2019 she saw him enter a [workplace] where she was working but she ran away before he saw her.

    vi.Regarding the second applicant’s engagement with mental health services, the applicant stated that her son attended 10 sessions with a psychologist, Ms [B], between May 2019 and January 2020. He began seeing a different psychologist in late March 2022 and to date has attended two sessions, with a third session scheduled in mid-September 2022.  

    vii.Regarding her admission to [Hospital 2], she stated that she was admitted [in] June 2022 and discharged [in] July 2022 because of depression and suicidal thoughts.

    viii.Regarding the loans from people in South Korea, she stated that [in] January 2019 she borrowed [amount] KRW (approximately $[amount] AUD) from an ‘acquaintance’ called [Acquaintance A]. [In] November 2018 and [December] 2018, she borrowed [amount] KRW (approximately $[amount] AUD) from an insurance agent called [Agent A]. Other than bank transfers in KRW, there is no documentary evidence of these loans. They were arranged via phone from Australia based on instructions from [Mr A].

    ix.[In] September 2018 [and] November 2018 [Mr A] borrowed a total amount of [amount] KRW (approximately $[amount] AUD) from her father. [In] December 2018 [Mr A] borrowed [amount] KRW (approximately $[amount] AUD) from her [sibling]. [In] October 2018 and [November] 2018 [Mr A] borrowed a total amount of [amount] KRW (approximately $[amount] AUD) from her maternal cousin. These amounts were initially transferred into her South Korean bank account. [Mr A] told her to transfer the money to a money changer’s account in South Korea and it was then transferred to [Mr A’s] account in AUD.

    x.Regarding her statement regarding [Mr A’s] criminal associations with drug dealers in Australia, she does not know their identity. While they were married, [Mr A] spoke to her about them, but she does not know the extent of their association. [Mr A] was initially selling marijuana with a friend and later they started selling cocaine.

    xi.The applicant provided details of her employment while in Australia. This consisted of various casual, part-time and full-time roles in [various jobs] between November 2019 to the date of the statement. She also referred to being forced by [Mr A] to take a job in a massage parlour for about one week in early February 2019. He took most of her money from this job.

1. The applicant was not invited to attend an interview with the Department. The delegate accepted the applicant’s circumstances in South Korea prior to her departure for Australia and her marriage to [Mr A]. Based on the evidence submitted, the delegate accepted that both applicants experienced physical and sexual abuse from [Mr A] between November 2018 and [February] 2019 and that they have suffered from mental health issues due to these experiences. The delegate also accepted the applicant’s claims relating to financial abuse, including that she loaned amounts totalling approximately $[amount] AUD from family, friends and other lenders to give to [Mr A]. The delegate did not accept that [Mr A] had any criminal associations in Australia or South Korea, finding the applicant’s evidence in this regard to be vague and unsubstantiated.   

2. The delegate accepted that [Mr A], as a South Korean citizen, could travel to and live in South Korea and that his family members, from whom the applicant fears harm, reside in South Korea. Having regard to a range of country information regarding domestic violence laws and support services and debt collection laws and enforcement in South Korea, the delegate concluded that the applicants could access effective protection from the South Korean authorities in regard to any harm from [Mr A] and in connection with any unlawful debt collection. The delegate was not satisfied that the applicant faced a real chance of serious harm or a real risk of significant harm in connection with lawful debt collection measures.

3. Regarding their mental health claims the delegate found, based on a range of country information, that the applicants would have access to adequate mental health care, such that there was no real chance of serious harm or real risk of significant harm. While acknowledging societal stigma regarding mental health issues, the delegate was not satisfied that this amounted to serious harm or significant harm. The delegate similarly acknowledged a degree of societal stigma toward divorced women in South Korea but was not satisfied that this amounted to serious harm or significant harm.

4. Regarding the claims that they would be homeless and destitute, the delegate considered country information regarding government welfare supports available to single parent households including emergency supports to cover living costs and medical care for low-income earners. In the applicants’ circumstances, the delegate was not satisfied that they would be unable to subsist or face harm amounting to significant harm.  

   Evidence before the Tribunal

   Pre-hearing evidence

5. On 1 May 2025, the applicants’ representative submitted a letter dated 30 April 2025 requesting the Tribunal make a number of procedural adjustments regarding the conduct of the hearing. These were requested in light of the applicant’s vulnerabilities arising from her experiences of physical and psychological abuse and her mental health issues. The Tribunal responded on 6 May 2025 confirming that the requested procedural adjustments would be put in place during the hearing. 

6. The applicant’s representative provided written submissions dated 6 May 2025 together with a statutory declaration of the applicant dated 1 May 2025 (Third Statutory Declaration) and supporting medical evidence as outlined below.

7. The representative’s submissions address aspects of the delegate’s reasons and place considerable reliance on a 2023 Tribunal remit decision for a South Korean applicant (case number 1729381). The representative submits that this case involved substantially similar facts to those of the current case and urges this Tribunal to take a similar approach. Key points from the submissions are summarised below:

   i.The applicant continues to fear harm from [Mr A], regardless of his location. While she is unsure of his exact whereabouts, she knows he has been charged with committing sexual offences against a child and therefore was likely mandatorily returned to South Korea. Reference is made to research cited in the National Domestic and Family Violence Bench Book (DFV Bench Book) regarding the prevalence of post-separation violence, despite a significant lapse of time.

   ii.Regarding the delegate’s finding that the applicant could access adequate state protection, it is submitted that this would be impeded due to stigma towards people who have suffered domestic violence, single mothers and people with mental health problems. This will likely leave the applicant without employment or the ability to access basic services.

   iii.Reference is made to country information indicating societal stigma toward divorced single mothers and it is submitted that there is limited government support for single mothers. While acknowledging the country information referenced by the delegate regarding welfare programs, the representative submits that this would be limited to emergencies or ‘otherwise insurance on pre-existing employment’.

   iv.Regarding stigma in South Korea towards persons with mental health issues, the applicant fears discrimination from the South Korean police and other authorities and that discrimination from employers which would impact on her ability to maintain employment.

   v.It is submitted that the applicant’s serious mental health issues will render her unable to work as [an Occupation 1] or in any other occupation, given that she currently struggles to maintain employment in Australia. She would be returning to South Korea as a single mother with severe mental health needs, a large amount of debt and no feasible means of employment. She is unlikely to be able to rely on family, friends or acquaintances for protection because of her unpaid debts.

   vi.The Tribunal is urged to have regard to the ‘best interests of the child’ principle under the Convention on the Rights of the Child, stating there to be a real possibility the applicant will be separated from her son if they return to South Korea, with adverse impacts on their mental health.

   vii.Reference is made to international jurisprudence in support of the proposition that the risk of suicide can amount to cruel, inhuman or degrading treatment or punishment. It is submitted that the applicant’s circumstances could satisfy the meaning of significant harm, not because of the risk of suicide, but because of degrading treatment she will suffer as a consequence of her inability to access South Korea’s mental health services.

   viii.It is submitted there is a real risk that the applicant will be unable to access adequate mental health facilities in South Korea. Country information is referenced regarding limitations in South Korea’s mental health services for reasons of significant government underfunding. Based on the applicant’s cumulative profile as a single woman with serious mental illness, a history of domestic violence and without the capacity to work, she will experience extreme humiliation in a country where domestic violence and serious mental health is viewed unfavourably.

8. Relevant evidence from the applicant’s Third Statutory Declaration is summarised below:

   i.She is unsure of the whereabouts of [Mr A]. She thinks he may have been deported to South Korea because of his criminal convictions but has heard rumours that he continues to live in Brisbane.

   ii.She does not agree with the delegate’s findings that she and her son could obtain protection from the South Korean authorities. She fears that [Mr A] will locate and seriously harm her and her son in South Korea because they obtained the Protection Order against him. She also fears harm from [Mr A’s] family in South Korea because she brought dishonour to them. She fears that he could use his connections to find them throughout South Korea. It only took him a few weeks to find her in Australia, which indicates he could do the same in South Korea.

   iii.She does not think the South Korean police could protect them. They told her in March 2019 that they could not do anything until [Mr A] had done something toward her in South Korea. There is a general lack of awareness of domestic violence in South Korea and she fears the authorities would regard her unfavourably because of the stigma toward mental health issues.

   iv.She has outstanding debts to individuals, banks and credit agencies in South Korea totalling around $[amount] AUD. She fears she would be arrested by the police on arrival at the airport for investigation of her debts. She fears being targeted by debt collectors. She would be vulnerable as a single mother with significant debt. This may impact her ability to secure housing and access mental health care. She would not receive mental health care from the government because she is not in an ‘acute phase’ and would not be able to see a doctor regularly and receive prescription drugs.

   v.She and her son have experienced significant mental health issues because of the abuse from [Mr A]. They both require significant mental health support which they would be unable to access in South Korea.

   vi.She has been diagnosed with severe depression and Post-Traumatic Stress Disorder (PTSD) and struggles with suicidal ideation. She was most recently admitted to hospital between [April] 2023 and [June] 2023 for psychiatric care due to suicidal ideation. She was previously admitted to hospital for treatment of depression and PTSD between [June] 2022 and [July] 2022 and for a period in early 2019.

   vii.If she has to return to South Korea, she fears that she will act on her suicidal ideations. She would not have the necessary support or protection from family and friends in South Korea. She has no family in South Korea that could care for her son if she was admitted to hospital. If he was placed into foster care, she fears she may not regain custody of him. Her father would not support her because he has remarried, and his wife has [a health condition]. Her [sibling] would be unable to support her as [he/she] is married and has [his/her] own child to care for.

   viii.Access to mental health care in South Korea is limited. There is low availability and high cost. You need to be referred by a doctor to a mental health professional. She does not have private health insurance or the means to pay for that. There is strong stigma and prejudice against people with mental health issues, which are considered a sign of weakness. People with mental health issues face discrimination in regard to employment. Her mental health issues would prevent her from working as [an Occupation 1] in South Korea. While she is currently not well enough to think about being employed, even if she were well enough, her mental health issues would impact her ability to obtain employment in South Korea and support herself financially. She would be destitute and homeless and unable to care for her son.

   ix.Her son was previously seeing a psychologist to deal with the trauma he experienced. He is currently seeking counselling through his school. He has settled into a routine in Australia and is doing well at school. She fears that he will not receive the support he needs in South Korea as mental health supports for young people are limited. He may also face bullying at school because he is an English speaker with poor Korean language skills and ostracism because of negative views toward single mother households.

9. Supporting medical evidence is outlined below:

   i.A referral letter dated 7 December 2024 from a medical practitioner in relation to the applicant states that she has an extensive past history of mental illness arising from domestic violence. She is stated to be ‘managing well now with regular medication and follow up’ outpatient psychiatric care. She requires ‘continuing management and reviews’. The applicant’s current medications are listed.

   ii.A medical certificate dated 23 June 2023 issued by [Hospital 2] records the applicant’s hospital admission between [April] 2023 and [June] 2023.

   iii.[A] Health Discharge Summary dated [May] 2023 relating to the applicant’s admission to [Hospital 2 in] April 2023. This refers to the applicant having a background of ‘major depressive episode, severe without psychotic features’ and being at high risk of suicide/self-harm. The applicant underwent multiple sessions of electroconvulsive therapy (ECT) and her medications were adjusted which was stated to have resulted in significant improvement to her mental health. It was noted that the applicant will continue to receive weekly ECT following discharge.

   Evidence from Tribunal hearing

10. The applicant confirmed that her father and stepmother continue to reside in Jeonju city.  She speaks with her father around once or twice per month. He knows about the situation with [Mr A] and says that he wants to help her, but he is not able to support her financially. Her [sibling] continues to reside in Seongnam, Gyeonggi Province. She speaks with [him/her] every few months. [He/she] is also aware of what occurred with [Mr A] but is not able to support the applicant financially. Her maternal cousin, from whom she also borrowed money, lives in Gyeonggi Province. She speaks with her once or twice per month. Neither of the applicants have any contact with her first husband’s family in South Korea; the applicant referred to obtaining an intervention order against them following her first husband’s death in July 2017 because they were harassing her for part of the money she received in connection with her husband’s death.

11. The last contact she had with [Mr A’s] family in South Korea was during her return to South Korea in January 2019. Regarding [Mr A’s sibling] who resides in Brisbane, she stated that she last had contact with [him/her] in around 2019. Asked about the reference in the 2022 Psychologist’s Report to [Mr A’s sibling] placing a newspaper advertisement seeking to locate her, the applicant stated that she must have been referring to the advertisement placed by [Mr A’s] divorce lawyers.

12. Regarding her employment in Australia, the applicant stated that she has been working on a part-time basis as an [Occupation 2] at a [workplace] since early 2024 and has completed a [course] in [Area of study 2]. She previously worked in [a variety of] roles. The applicant confirmed that she continues to attend a [Christian] church in Brisbane. She stated this was not the same church that she attended while residing with [Mr A].

13. Asked about her departure and return to Australia between [September] 2018 and [October] 2018, as recorded in the delegate’s refusal decision, the applicant stated that after her initial arrival in Australia she returned to South Korea to sell her personal belongings and vacate her apartment. She stated that she does not currently own any property in South Korea.

14. Regarding the loans from an insurance agent and acquaintance as detailed in her Second Statutory Declaration, the applicant stated she knew these people personally; one was her insurance agent and the other person was a friend. There was no formal documentation regarding these loans. Asked what has occurred in regard to these loans, she stated that for a while they were messaging her asking for repayment but she couldn’t repay it so they stopped contacting her. The last contact she received from these two people was in around 2022, at which time she blocked them from her phone because their messages were making her feel bad.

15. Asked about the other loans referred to in her written evidence, she confirmed that these were from legal credit providers in South Korea, noting that she and her first husband had a good credit rating. She was receiving emails regarding repayment of these loans until she blocked them in around 2022. They could not send her any correspondence via mail because they did not have an address for her in South Korea. Asked whether her family in South Korea have been contacted about these loans, she stated that they have not told her about any contact. She confirmed that she has not received any documentation advising of legal action being taken in regard to these debts. Asked about the claim in her Third Statutory Declaration that she fears being arrested by the South Korean police on arrival at the airport, she stated she thinks she may have been reported to the International Criminal Police Organization (INTERPOL) because of her failure to repay the bank debts.  

16. Regarding the loans from her family members, she confirmed that she has not been able to repay any of this money. Asked how her family have reacted, she stated that they know what occurred with [Mr A] and understand that it was not her fault. They are not asking for the money back.

17. She confirmed that she has had no contact with [Mr A] since they saw each other in August 2019 during his court sentencing. Asked about the status of the divorce proceedings, the applicant stated that she received documents regarding the divorce proceedings in the mail; they were not delivered to her house personally. I raised with the applicant that this differs from her written evidence which indicates that the documents were personally delivered to her home. She responded that she cannot recall anyone coming to her home. Following an adjournment of the hearing, the applicant stated that she had forgotten that the documents were delivered to her home in [Suburb 1]; her support person had reminded her of this. The applicant also raised that she had received a document from South Korea relating to ‘proof of family relationship’ which confirmed that her divorce from [Mr A] had been finalised.

18. Asked about her claim that [Mr A] could utilise his connections to locate her throughout South Korea, she stated that his family members would help to locate her if they knew she had returned so they could seek revenge for [Mr A’s] criminal convictions. She clarified that the reference in her Third Statutory Declaration to it taking [Mr A] two weeks to locate her relates to the period that his lawyers delivered the divorce documents to her following placement of the newspaper advertisement. She stated that after the divorce documents were delivered to her home in [Suburb 1], she continued residing at the same address until September 2024. At that time, she moved to another [suburb] due to the second applicant securing a scholarship and changing schools.

19. Regarding her claims to fear harm from [Mr A] and his family in South Korea, I explained that I will need to consider whether there is a real chance or real risk of such harm. I discussed with the applicant that, while I have not made up my mind, I may not be satisfied there is a real chance/risk considering there has been no contact with [Mr A] or his family since 2019, despite his release from prison in August 2019, the cessation of the Protection Order in July 2024, and [Mr A] likely being aware of her place of residence since early 2022. I also noted that she continues to attend a [Christian] church in Brisbane and has referred to the Korean Christian community in Brisbane being small. The applicant responded that [Mr A’s] father is a [Vocation 1] and knows a lot of people. She thinks they could easily find her, including by using a private detective. While acknowledging that they haven’t contacted her while in Australia, she thinks they may be waiting for her to return to South Korea before contacting her.

20. Regarding her claims to fear harm due to outstanding debts from bank or credit institutions, I discussed with the applicant the meaning of persecution and significant harm and explained that lawful debt recovery action by a bank or credit institution may not satisfy these requirements. She responded that these lenders would continue to pursue repayment of these debts; they may come to her workplace and impact her ability to secure or maintain a job.

21. Regarding the debts to an insurance agent and friend, I acknowledged that these people may seek to enforce repayment, however based on her evidence they do not appear to be illegal money lenders or persons who would seek to harm her. I explained that I may not be satisfied that any action taken by these people to seek repayment would involve persecution or significant harm. The applicant responded that she can’t be sure how they would act and the mere mention of returning to South Korea causes her to feel panic.  

1. Regarding her claims to fear that she will be subject to arrest by the police on arrival in South Korea, I discussed with the applicant that I may not be satisfied there is a real chance or risk of this occurring. The applicant responded that when she returned to South Korea in early January 2019, she was escorted off the plane and required to speak with the police at the airport. She stated that this was in connection with suspected financial fraud and the police told her she had been reported to INTERPOL. She was required to attend the police station the following day. After showing them bank statements which confirmed that she was a victim rather than perpetrator of fraud, she was released the same day and did not receive any further contact from the police in regard to this issue. The applicant confirmed that this had no connection to the money she loaned while with [Mr A]; stating that this related to events that occurred before she met [Mr A].

2. Asked whether this would cause any problems for her on return, she stated that she only raised it to illustrate that something similar could occur in connection with her outstanding debts if she returns to South Korea. I raised with the applicant that I had some concerns that this incident was not previously mentioned, given its potential relevance to her claims. She responded that she did not previously raise it because it was not connected to [Mr A].

3. Regarding her claims to fear harm as a divorced single mother, I acknowledged that there is a degree of stigma regarding divorce in South Korea, as discussed in the delegate’s decision. I discussed with the applicant the meaning of serious harm and significant harm and raised that I may not be satisfied that any societal stigma she may experience as a divorced single mother would amount to harm of this level. The applicant responded that she has no assets in South Korea and no savings. She could stay with relatives for a few days but would have no place to live longer term. Her mental health would deteriorate and impact her ability to find work and she would not have access to free medical treatment for her mental health, as she has in Australia.

4. Regarding her mental health issues, I acknowledged that she has experienced significant mental health problems due to her experiences with [Mr A] and her son’s mental health was also affected. While I accept that there are some limitations in mental health services in South Korea, I discussed with the applicant that I may not be satisfied that those limitations amount to persecution by the Korean government or significant harm which requires the intentional infliction of severe physical or mental pain or suffering or extreme humiliation which is unreasonable. The applicant responded that the South Korean government told her they cannot help her because [Mr A’s] conduct occurred in Australia. Although they are poor in Australia, her son has been granted a school scholarship which has brought her happiness. Her son would suffer on return to South Korea because of his limited Korean language skills and this would cause her mental health to deteriorate.

5. I discussed with the applicant that, as outlined in the delegate’s decision, the South Korean government provides financial support programs for persons on low incomes. I also raised that I may not accept that she would be unable to earn any income on return to South Korea or that any financial difficulties on return would amount to persecution or significant harm. The applicant responded that any financial support in South Korea would only be offered for a short time. I also raised with the applicant that I may not accept that she would be without any family support on return, noting that according to her evidence, her father, [sibling] and cousin are aware of her situation and supportive of her.  She responded that her maternal cousin could only provide her with emotional support. The applicant added that she would rather die than return to South Korea.

6. Regarding the representative’s submissions to the Tribunal regarding the ‘best interests of the child’ principle, I discussed that this does not form part of the protection visa criteria and was not relevant to my assessment of protection obligations. It may be relevant to a possible Ministerial intervention referral. In relation to the reliance on an earlier Tribunal decision in case number 1729381, I noted that the findings in that case were based on the Tribunal accepting there to be a real risk of significant harm from the applicant’s father if she returned to live with her mother in South Korea. The applicant’s mental health and employment capacity were considered as relevant factors under the complementary protection criteria in finding that it would not be reasonable for the applicant to relocate to another part of the country. The Tribunal in that case was not satisfied that the applicant faced a real chance of persecution for reasons of her mental health or as a single woman. I reiterated my concerns that I may not be satisfied there was a real chance/risk of harm from [Mr A] or his family if the applicant were to return to South Korea.  

7. The applicants’ representative made brief oral submissions asserting that based on [Mr A’s] past behaviour in Australia, there is a real chance or real risk of future harm in South Korea. It was emphasised that the applicant’s claims must be considered cumulatively in considering whether the relevant harm thresholds are satisfied. I allowed a further two weeks to provide written submissions and additional evidence.

   Post-hearing evidence

8. On 30 May 2025 the applicant’s representative provided further submissions dated 30 May 2025 (Post-hearing submission), a ‘Country of Origin Information Memorandum’ dated 23 May 2025 (COI Memorandum) and a Psychological Report from Dr [A] dated 27 May 2025.

9. Relevant information from the Post-hearing submission is summarised below:

   i.Regarding the Tribunal’s concerns as to whether there was a real chance or risk of future harm from [Mr A], it is submitted that while some years have passed with no contact from [Mr A], due to the severity of the previous physical, sexual, financial and mental abuse, there is a real chance of harm if the applicants return to South Korea. [Mr A] has shown a pattern of erratic and illogical behaviour, such that the Tribunal should not rely on him applying rational thought including if he were to cross paths with the applicant in South Korea.

   ii.The fact that [Mr A] has not contacted the applicant following the cessation of the Protection Order does not mean that he will not contact her in South Korea. The applicant’s fear of future harm from [Mr A] due to her reporting his abuse to the police and his subsequent criminal convictions are supported by the commonality of post-separation violence as cited in the DFV Bench Book. It is extremely common for perpetrators to commit acts of violence against their ex-partners after extended periods of separation, such that the risk of future harm has not diminished with the lapse of time. Korean culture which emphasises family honour is also relevant to the chance of future harm from [Mr A] and his family.

   iii.With reference to the COI Memorandum, it is submitted that the applicants have an objectively well-founded fear of persecution in the form of serious discrimination because of their profile as a family with a divorced single mother with a mental health condition. It is submitted that there is systematic discrimination regarding the implementation of laws, the distribution of financial support and societal assistance for single divorced women with mental health conditions and their families.

   iv.The applicant (and her son as a member of her family) will be ostracised as a single mother and as a person with a mental health condition. This will lead to social isolation, limited financial support from the government, inability to obtain employment and limitations in accessing services particularly mental health services. Any money the applicant makes will need to go toward repayment of her significant debts. Cumulative discrimination will lead to the applicant’s inability to subsist.

   v.Reference is made to the report by Dr [A] which indicates a decline in the applicant’s mental health is she returns to South Korea. The applicant has expressed fears that her son will be placed into foster care if she is required to enter a mental health facility. It is submitted that the best interest of the child principle should be considered in the context of the applicant’s personal circumstances.

   vi.While it is acknowledged that the applicant has continued contact with her family in South Korea who have shown care while she has been in Australia, this does not mean they could provide her with the necessary support on return. Her family could not offer her support regarding financial and systematic discrimination.

   vii.Reference is made to previous submissions regarding cruel or inhuman or degrading treatment due to inadequate mental health support in South Korea leading to the applicant’s mental health deterioration. This is premised on governments having a responsibility to provide adequate services to citizens. An inability to provide these services in matters of health will lead to cruel or inhuman or degrading treatment.

   viii.In the event the Tribunal is unable to remit the application, it is requested that the case be referred to the Minister for possible intervention under s 351 of the Act. It is submitted that this case involves a number of unique and exceptional circumstances and considerations that bring Australia’s obligations under the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child into consideration. The applicants have suffered significant domestic violence while in Australia from an Australian permanent resident which has led to a grave deterioration in their mental health. Dr [A] is of the view that [the applicant] is at risk of committing suicide if returned to South Korea. The applicants will inevitably fall into poverty if they are required to return to South Korea. They will suffer social isolation for their mental health and as a family with a single, divorced mother. Such suffering will be a direct consequence of the violence they were subject to in Australia. The family violence provisions in the Act support that it is in the public interest for persons who have been subject to domestic violence in Australia at the hands of an Australian permanent resident to be able to remain in Australia permanently.

10. The COI Memorandum outlines a range of country information regarding the historical and cultural background of South Korea and the situation regarding gender equality, gender violence and mental health.  

11. The report from Dr [A], prepared following a request from RAILS, details a psychological assessment of the applicant based on three sessions ([in] April 2025 [and] May 2025) totalling 4 hours of assessment. Dr [A] also had access to the First, Second and Third Statutory Declarations. The assessment utilised a Mental Status Examination, Clinical Interview and Self-assessment tools used to diagnose PTSD and depression, anxiety and stress. Key findings are outlined below:

    i.Dr [A] finds that the applicant fulfills the diagnostic criterion for both PTSD and Major Depressive Disorder. In her professional opinion, the applicant has a ‘prevalent mental health diagnosis’, with the psychological examination confirming Major Depressive Disorder and PTSD.

    ii.While the applicant has a history of depressive symptoms prior to arriving in Australia, it was after experiencing domestic and family violence (DFV) that she developed PTSD and her Major Depressive Disorder became resistant to treatment. Dr [A] notes that the comorbidity of this diagnosis is common in DFV and often implicated in worst outcomes for survivors, particularly connected to the difficulty to experience safety and the risk of suicidal behaviours.

    iii.To manage her complex mental health presentation and her son’s wellbeing, the applicant has been accessing psychological and psychosocial services for DFV survivors, looking for assistance for victims of a crime, families and those with prevalent mental health. She is currently supported by her GP, her son is connecting with a counsellor, besides receiving school support and she relies on her church community, and [a local support program].[1] According to the applicant, the second applicant ‘is developing well and even got [first] place for admission in a private school with a full scholarship. However, he has low social skills that may be connected with developmental trauma.’

    iv.The applicant’s diagnosis and specific presentation indicate immediate need for psychiatric and psychological treatment. The applicant requires trauma focused therapy besides interpersonal therapy. A psychiatrist would be needed to evaluate her medication to go alongside psychological therapies. The applicant also requires community support and connection with other survivors. Accessing such therapies is possible in Australia and not equally available to her in Korea.

    v.While acknowledging that she has never met the second applicant or directly assessed his needs, Dr [A] considers that the second applicant requires specific social skills and developmental trauma focused therapy. Dr [A] also fears that ‘relocation’ would further hurt her son’s progress, as he requires an English-speaking psychologist.

    vi.Dr [A] expresses ‘grave concerns’ for the impact on the applicant’s mental health and wellbeing and that of her son if they are forced to leave Australia and abandon community support and psychosocial treatments. The applicant’s previous behaviour, history as a survivor and the presence of strong dissociation in her symptomatology all indicate an elevated risk of suicidality.

    vii.In Dr [A’s] professional opinion, ‘forced relocation’ would exacerbate the risk of suicide ‘not only due to the increased risk of abuse by her ex-partner and those related to him in Korea, and risk of issues with the law due to the unpaid loans, but also due to the material dispossession intrinsic to the process of relocation, and more importantly, there would be an increased risk of worsening mental health and suicidality as a result of the disruption to her psychosocial support and medical treatment.’

    viii.Dr [A] recommends that the applicants are ‘positively considered for permanent residency in Australia due to the toll that relocation would take on [the applicant’s] mental health and functionality.’

    [1] [Information deleted]

    FINDINGS AND ASSESSMENT

12. The issue in this case is whether either of the applicants engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Act. I have had regard to all the available evidence as outlined above and have considered the applicants’ protection claims both individually and cumulatively. For the following reasons, I have concluded that the decision under review should be affirmed. However, as discussed below, I have decided to refer this case under s 351 of the Act for the consideration of Ministerial intervention.

    Criteria for protection visa

13. 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.

14. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the Department’s ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, 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.

    Factual findings

15. In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the 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.[2] 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.[3]

    [2] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.

    [3] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.

16. I accept the claims relating to the applicants’ past experiences with [Mr A] to be credible. These claims have remained overall consistent and are supported by reliable, probative documentary evidence. I accept that the applicant met [Mr A], an Australian permanent resident, in August 2018 via an online dating platform and they married in South Korea in early September 2018. I accept that the applicants moved to Australia shortly after the marriage to live with [Mr A] in Brisbane.

17. Given the available documentary evidence and the traumatic nature of the claims, I did not consider it necessary to question the applicant at the hearing about her experiences of abuse from [Mr A]. Based on the available documentary evidence, I accept that both applicants experienced significant physical, sexual, psychological and emotional abuse during the course of the relationship with [Mr A]. I accept that the applicant also experienced financial abuse as discussed below.

18. I accept that [Mr A] was taken into police custody [in] February 2019 and was subsequently convicted of [number] domestic violence offences relating to the applicants which occurred between [December] 2018 and [February] 2019. I accept that he remained in prison until [August] 2019 and was then released on supervised parole until [February] 2021. I accept that a Protection Order was issued [in] July 2019 and this expired [in] July 2024.

19. I accept that the last time the applicant and [Mr A] saw each other was in August 2019 during his court sentencing hearing and she is unsure of [Mr A’s] current whereabouts. I accept that some members of [Mr A’s] family who reside in Seoul are [in Vocation 2] and that [Mr A’s sibling] who resides in Brisbane is also [in Vocation 2]. I accept the applicant’s evidence that she has received no contact from [Mr A] or his family members in Australia or South Korea since 2019. I note that the 2022 Psychological Report referred to [Mr A] and his [sibling] searching for the applicant, including by placing a newspaper advertisement seeking her whereabouts. However, when questioned about this at the hearing, the applicant indicated that she was referring to the advertisement placed by [Mr A’s] divorce lawyers in February 2022. The applicant did not raise any claims that [Mr A] or his [sibling] had taken any steps to locate her in Australia. She acknowledged that there had been no contact since 2019, including following the delivery of the divorce documents to her home address in March 2022 or the expiry of the Protection Order in July 2024.

20. Based on the documentary evidence submitted, I accept that in February 2022, [Mr A’s] lawyers placed an advertisement in a Korean English newspaper seeking information regarding the applicant’s whereabouts. I accept that in March 2022 a representative from [Mr A’s] lawyers delivered documents to the applicant’s home in [Suburb 1], where she continued to reside until September 2024, in relation to divorce proceedings initiated by [Mr A]. I have placed no adverse weight on inconsistencies in the applicant’s oral evidence to the Tribunal regarding how she received these documents. I find this to be reasonably explained by the lapse of time and the applicant’s mental health issues and treatment. Based on the applicant’s oral evidence, I accept that she received a document from South Korea indicating that the divorce has been finalised.  

1. I accept that the experiences of abuse from [Mr A] adversely impacted on the mental health of both applicants, particularly that of the applicant, and they have engaged with mental health supports since around mid-2019. Based on the supporting medical evidence, I accept that the applicant has been admitted to hospital for mental health treatment on three occasions between early 2019 and mid-2023. I accept that the most recent admission was for psychiatric treatment due to suicidal ideation, which included ECT during her admission and following her discharge. I accept the findings of Dr [A] that the applicant presently suffers from both PTSD and Major Depressive Disorder and requires psychiatric and psychological treatment and therapy.

2. I acknowledge Dr [A’s] view that the second applicant requires therapy in relation to social skills and developmental trauma. However, considering Dr [A’s] acknowledgement that she has never met the second applicant or directly assessed his needs, I have placed limited weight on this opinion. The available evidence indicates that the second applicant’s last engagement with a psychologist was in late 2022 and he is currently supported by a school counsellor. While he is performing well academically as evidenced by achieving a scholarship to a private school, he has some difficulties with social skills. Based on the available evidence, I find that the second applicant does not currently suffer from any diagnosed mental health condition.  

3. I accept that during the course of her relationship with [Mr A], the applicant accumulated debts of around $[amount] AUD which she has been unable to repay. Based on the available evidence, I find that the loans were from formal Korean credit institutions in addition to informal loans from a friend, an acquaintance (her insurance agent) and family members (her father, [sibling] and maternal cousin) in South Korea. I accept that the applicant was receiving emails and messages seeking repayment of the loans from the credit institutions, her friend and the insurance agent until around 2022 when she blocked these contacts. Based on the available evidence, I find that neither the applicant, nor any of her family members in South Korea, have received any documentation indicating that legal proceedings have been initiated for recovery of these debts.

4. Based on the applicant’s evidence to the Tribunal, I accept that she maintains regular contact with her father, [sibling] and maternal cousin who are aware of and have expressed sympathy in regard to her experiences with [Mr A]. I find that her father, [sibling] and maternal cousin have forgiven her debts to them and are not seeking repayment.

5. The applicant raised with the Tribunal that on return to South Korea in January 2019, she had been questioned by the police on arrival at the airport in relation to suspected financial fraud. While I have some concerns about the late disclosure of this claim, I acknowledge the applicant’s explanation that she did not raise this previously as it was not connected to [Mr A]. Based on the applicant’s overall credibility, I am prepared to accept this claim as plausible. I accept that this incident had no connection to the loans taken out by the applicant while she was in a relationship with [Mr A] and that, after attending the police station the following day, the applicant was able to satisfy the police that she had no involvement in financial fraud.

6. I accept the applicant’s evidence that, based on her personal knowledge, [Mr A] had some involvement in dealing illegal drugs in Australia. She suggested in her written evidence that [Mr A] also has criminal connections in South Korea which he could utilise to locate her if she were to return. When asked about this at the hearing, the applicant referred only to [Mr A’s] family in South Korea being able to help him locate her. There is no probative evidence before me to indicate that [Mr A] has any criminal connections in South Korea. Based on the available evidence, I do not accept this claim to be credible.

7. Regarding the applicants’ ‘home area’ or place of likely return, I find this to be either Gyeonggi Province, where the applicant resided between 2010 and 2018 and the area where her [sibling] and maternal cousin reside, or Jeonju city, where the applicant resided between 1996 and 2009 and the area where her father continues to reside.

   Refugee and complementary protection assessment

   Fear of harm from [Mr A] and family

8. I acknowledge the applicant’s ongoing subjective fear of [Mr A] in light of her previous experiences of abuse. However, for the reasons below I am not satisfied that either of the applicants has an objectively well-founded fear of harm from [Mr A] or his family members in the reasonably foreseeable future if they were to return to Gyeonggi Province or Jeonju city. While [Mr A’s] current whereabouts are uncertain, I accept there is a possibility that he could be required to return to South Korea permanently due to his criminal convictions in Australia. In any event, I accept that as a citizen of South Korea, he has the right to return to South Korea at any time.

9. I have found above that there has been no contact from [Mr A] or his family members since 2019. As above, I acknowledge that the applicant is unsure of Mr A’s] current whereabouts. However, the divorce application filed with the Federal Circuit and Family Court in January 2022 indicates that at that time [Mr A] was residing in Brisbane together with his [children]. He was released from prison in August 2019 and the Protection Order ceased in July 2024. [Mr A’s] lawyers were aware of the applicant’s residential address [in Australia] as of March 2022, where she continued to reside until September 2024. The applicant is an active member of a [local Christian church]. The applicant acknowledged that the Korean Christian community is small, and [Mr A’s sibling] is [in Vocation 2]. These circumstances indicate that [Mr A] was likely aware of the applicant’s whereabouts since early 2022 yet has taken no steps to contact or harm her or her son, including after the cessation of the Protection Order.  

10. I acknowledge the research cited in the DFV Bench Book regarding the risk of post-separation violence. However, in the applicants’ particular circumstances, I am not satisfied there is a real chance, being a possibility that is not remote or insubstantial, that [Mr A] or his family would seek to locate or harm them in South Korea. Considering the lack of contact in Australia since 2019, or any other indication of ongoing adverse interest from [Mr A] or his family, I find there to be no probative evidence that [Mr A] or his family are seeking revenge against the applicants. Further, there are no factors that would require ongoing contact with [Mr A] or his family if the applicants were to return to South Korea. The divorce from [Mr A] is finalised and the applicant has no children or ongoing commitments with [Mr A]. The applicant’s representative raised in the Post-hearing submission the risk of [Mr A] behaving in an erratic and irrational manner if he were to ‘cross paths’ with the applicant in South Korea. I find the chance that [Mr A], who originates from Seoul, would cross paths with the applicant in Gyeonggi Province or Jeonju city, to be remote.

11. Considering all the above, I am not satisfied that there is a real chance of harm to either of the applicants from [Mr A] or his family members if they were to return to Gyeonggi Province or Jeonju city. Considering that the real chance and real risk thresholds have been found to be the same,[4] I am also not satisfied that there is a real risk of harm to either of the applicants from [Mr A] or his family members as a necessary and foreseeable consequence of their return to South Korea.

    Outstanding debts

    [4] MIAC v SZQRB [2013] FCAFC 33

12. I accept there to be a real chance, and therefore real risk, that lawful debt recovery proceedings will be taken against the applicant regarding the outstanding loans from credit institutions. As discussed with the applicant and addressed in the delegate’s refusal decision, I am not satisfied that such action amounts to persecution as outlined in s 5J(4), which includes the requirement that a s 5J(1)(a) reason be the essential and significant reason for the persecution, and it involve systematic and discriminatory conduct. Further, I am not satisfied that such action would amount to any of the types of significant harm in
    s 36(2A).

13. Regarding the applicant’s claim that she may be arrested on arrival at the airport due to being reported to INTERPOL, I am not satisfied there is a real chance of this occurring. While I have accepted that she was previously questioned by the police on return to South Korea in January 2019, this was for reasons of suspected involvement in financial fraud. There is no rational basis to consider that she would have been reported to INTERPOL, which deals with international criminal matters, for reasons of failing to repay debts to formal credit institutions in South Korea.

14. Regarding the debts to a friend and acquaintance (totalling around $[amount] AUD), the applicant confirmed to the Tribunal that this involved no formal loan documentation. While I have some concerns as to how these debts could be legally enforced in the absence of any formal loan documentation, I accept there to be at least a real chance and therefore a real risk that debt recovery proceedings could be taken by these two people. Based on the available evidence, I find that this would be limited to legal debt recovery action and would not involve any unlawful or violent action toward the applicant. As above, I am not satisfied that such action amounts to persecution as outlined in s 5J(4) or significant harm as defined in s 36(2A).    

15. The applicant confirmed to the Tribunal that her father, [sibling] and maternal cousin are not seeking repayment of the amounts loaned to the applicant as they understand this was the fault of [Mr A] and feel sorrow for her situation. I am not satisfied the applicant would face a real chance or risk of any harm from her family members in connection with these debts.

    Family status and mental health issues

16. The representative has submitted that the applicants have a well-founded fear of persecution in the form of serious discrimination because of their cumulative profile as a family with a divorced single mother with a mental health condition. This is claimed to involve systematic discrimination by the Korean government regarding the implementation of laws and distribution of financial support in addition to societal discrimination.

17. As outlined below, I have considered these claims both individually and cumulatively and with regard to the applicants’ personal attributes and vulnerabilities, including the applicant’s mental health issues and the second applicant’s age. As noted in the Department’s Refugee Law Guidelines, in determining whether harm amounts to serious harm as required by s5J(4)(b), an applicant’s personal attributes and circumstances are relevant. Further, the threshold for serious harm may be lower when dealing with people who are particularly vulnerable to abuse due to some personal attribute.[5]

    Family status

    [5] Refugee Law Guidelines at 3.11.9

18. Regarding the applicants’ family status, I have had regard to the country information cited in the delegate’s refusal decision and in the representative’s submissions. I acknowledge that, given the prevalence of traditional family views in South Korea, there is general societal stigma toward divorce, unmarried mothers and single-parent households. I note that some of the country information cited by the applicant’s representative, particularly a March 2018 Aljazeera article, relates specifically to societal and family attitudes toward unwed mothers (women who have children outside marriage) and their children. I do not consider the applicants fall within this profile. The second applicant was born during the applicant’s marriage to her first husband who has passed away. However, I acknowledge that the applicant would be viewed as a widowed and subsequently divorced single mother and her son as the child of a single-parent household.

19. Based on the applicant’s evidence to the Tribunal, I am not satisfied that the applicants would be ostracised or subject to any discrimination or mistreatment by the applicant’s family members. The applicant confirmed to the Tribunal that her father, [sibling] and maternal cousin, with whom she maintains regular contact, are aware of what occurred with [Mr A] and have expressed their sympathy. They previously loaned the applicant a relatively substantial amount of money and are not seeking repayment due to her circumstances. While I acknowledge that they may not be in a position to provide substantial financial support to the applicants, I find that they would offer them emotional support and assistance in resettling in South Korea, including temporary accommodation if required. As discussed below, I find that this would extend to them caring for the second applicant if the applicant was required to be temporarily hospitalised for mental health treatment. 

20. I find that the applicants’ family status will give rise to a real chance that they will be subject to a degree of societal discrimination, in the form of negative comments and attitudes. In relation to the second applicant, I acknowledge that his family status, in conjunction with his Korean language limitations and lack of familiarity with the Korean school environment, may result in some negative attitudes from his peers at school. I accept that he will likely experience challenges in adjusting to the Korean school system.

21. However, even taking into account their personal attributes and vulnerabilities, I am not satisfied that this amounts to serious harm for the purposes of s 5J(4)(b), examples of which are set out in s 5J(5). I am not satisfied it would involve a threat to their life or liberty or significant physical harassment or ill-treatment. I acknowledge that serious mental harm for a refugee protection reason may constitute persecution involving serious harm within the meaning of s5J(4)(b). For example, mental harm caused by the conduct of mock executions, or threats to the life of people very closely associated with the person seeking protection have been considered capable of amounting to serious mental harm.[6] I accept that negative societal attitudes for reasons of their family status would cause some degree of distress for the applicants. However, I am not satisfied that in itself this would reach the threshold of serious mental harm of a level that would equate to serious harm.

    [6] Revised Explanatory Memorandum, Migration Legislation Amendment Bill (No 6) 2001 at [25]

22. I accept that these issues may give rise to a degree of employment-related discrimination for the applicant. However, I am not satisfied this would amount to significant economic hardship, the denial of the capacity to earn a livelihood of any kind, or the denial of access to basic services that would threaten the applicants’ capacity to subsist. The courts have found the ‘capacity to subsist’ to be a high threshold that involves a threat to a person’s ability to continue to exist or remain in being.[7] The applicant is tertiary educated and was employed for almost 10 years as [an Occupation 1] in South Korea. She has worked on a regular basis in a range of [jobs] in Australia since 2019 and as an [Occupation 2] since early 2024. I note that this covers a period in which she has dealt with significant mental health challenges. I am not satisfied that societal discrimination for reasons of her family status would prevent her from securing employment such that she or the second applicant would be unable to subsist. Cumulative issues relating to the applicant’s mental health are considered below.

    [7] SZBQJ v MIMIA [2005] FCA 143; SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725

23. I am not satisfied that the applicants will face a real chance of persecutory harm from the Korean government for reasons of their family status. As outlined in the delegate’s refusal decision, the government provides various social welfare programs for single-parent and lower-income households including Unemployment Insurance, National Basic Livelihood Security (NBLS), Single-Parent Family Support and Child Support. This was also acknowledged in the country information cited by the representative. I acknowledge that, as is the case in many countries, there are limitations in the amount of financial support offered by the Korean government to single-parent families and accept that single-parent families in South Korea may satisfy the definition of a particular social group in s 5L of the Act. However, I am not satisfied that limitations in financial support arise from systematic and discriminatory conduct by the government for the essential and significant reason of a person’s membership of this group.

24. For the purposes of the complementary protection criterion, for the same reasons above I accept there to be a real risk that the applicants will experience a degree of societal  discrimination for reasons of their family status. However, I am not satisfied that this amounts to any of the types of significant harm exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. The definitions of cruel or inhuman treatment or punishment and degrading treatment or punishment in s 5(1) of the Act require an intention on the part of a perpetrator to inflict severe mental pain or suffering or cause extreme humiliation which is unreasonable. I am not satisfied that any societal discrimination experienced by the applicants would satisfy this requirement. Further, I am not satisfied that the Korean government holds an intention to inflict severe mental pain or suffering or cause extreme humiliation which is unreasonable on single-parent households.

    Mental health

25. I have accepted above that the applicant suffers from PTSD and Major Depressive Disorder and, in the professional opinion of Dr [A], requires psychiatric and psychological treatment and therapy. Based on Dr [A’s] assessment, the applicant’s mental health issues since 2019 and her presentation before the Tribunal, I accept that there is a real chance that her mental health will deteriorate if she were required to return to South Korea, resulting in an increased risk of self-harm.   

26. I have had regard to the country information cited in the delegate’s refusal decision and in the representative’s submissions relating to mental health services and attitudes in South Korea. I have also had regard to country information cited in the Tribunal decision in case number 1729381, which was referenced in the Pre-hearing Submissions.

27. The delegate’s decision references country information regarding South Korea’s public health care system, the National Health Insurance, which provides universal health care coverage. Low-income families are exempted from monthly contributions to the scheme. The Medical Aid Program, introduced in 1977 to bridge health gaps affecting those on lower incomes, is a supplementary program for high need citizens. Recipients of the Medical Aid Program, who have the lowest incomes or cannot maintain a job, do not pay a monthly premium and incur little or no out-of-pocket expenditure to access healthcare services.

28. Regarding mental health services in South Korea, the delegate and the Tribunal in case number 1729381 referred to a 2019 journal article which includes the following information:

    i.The Mental Health Act, introduced in 1995, legalised the process of involuntary admission to hospital and reinforced the provision of mental health services at the community level. The definition of ‘mental health professionals’ was expanded, services were expanded to include programs for juveniles, to address alcohol dependence and expand the demographic covered by the legislation. The Mental Health Act was revised in 2016, in line with recommendations from an OECD investigation team.

    ii.Since the legislation was introduced in 1995, mental health services have expanded at the community level. According to the Ministry of Health and Welfare, over the last 15 years there has been an approximately fivefold increase in the number of facilities for mental health rehabilitation – from 66 in 2001 to 333 in 2015 – and in Mental Health Welfare Centers – from 46 in 2001 to 253 in 2015.

    iii.While community facilities for mental health have grown considerably, large numbers of people with mental disorders continue to be accommodated in private mental hospitals, with data showing the numbers of beds in private mental hospitals to be ten times more those of the accommodated people in mental health rehabilitation facilities.

    iv.Following an OECD investigation, the government was intending to enhance community-based care services for both people with a mental illness and for the general public, to curb hospital-based treatment and to extend coverage to the majority of the population.

    v.Most community facilities have trouble meeting the demand for services and, despite advances, the mental health system remains framed by the hospitalisation model. Longer term accommodation options remain insufficient for mental health patients and promotion has come at the expense of case management.[8]

    [8] Yong-Chang Heo, Sang Kyoung Kahng, and Sungyong Kim, International Journal of Mental Health Systems, Mental health system at the community level in Korea: development, recent reforms and challenges, Vol. 13(9), 13 February 2019

1. Regarding stigma toward mental health issues, the delegate cited a December 2019 journal article indicating that there is public stigma against mental illness, with discrimination experienced by psychiatric patients in South Korea including ‘emotional shunning, difficulty in purchasing medical insurance, and detrimental influences on their reputation and career’.[9]

   [9] Zhisong Zhang, Kaising Sun, Chonnakarn Jatchavala, John Koh, Yimian Chia, Jessica Bose, Zhimeng Li, Wanqiu Tan, Sizhe Wang, Wenjing Chu, Jiayun Wang, Bach Tran, and Roger Ho, International Journal of Environmental Research and Public Health, Overview of Stigma against Psychiatric Illnesses and Advancements of Anti-Stigma Activities in Six Asian Societies, Vol. 17, 31 December 2019

2. The COI Memorandum refers to country information indicating in summary that:

   i.South Korea has one of the highest rates of suicide among developed countries. South Korean culture often frowns upon seeking help for mental illness, with reports stating that only seven per cent of those affected by poor mental health seek therapy or psychiatric help.

   ii.Studies have found although the government is budgeting for mental health support, the support provided is inadequate to the demand, and continuing support for those suffering serious mental health condition is lacking.

   iii.The psychiatry treatment gap remains huge, with one survey indicating that only 22 per cent of people with a mental illness seek professional help during their lifetime.

   iv.Those who do attend therapy, often pay out-of-pocket in cash to avoid any effect on their insurance. People diagnosed with a mental disorder are unfairly rejected by health insurance companies, regardless of their diagnosis.

   v.Mental health continues to be stigmatized in South Korean culture as it is viewed as a weakness. This forms a combination of stereotyping, prejudice, and discrimination, manifesting as cognitive, affective, and behavioural responses toward people with mental illness.

   vi.Stigma against mental health acts as a barrier for individuals with mental disorders to receive help. According to the World Health Organisation, 85 per cent of people with severe mental illness do not receive treatment.

   vii.Workplace discrimination was a major concern, with 88.7 per cent believing that having a mental health record could hurt their job prospects. More than two-thirds feared losing friends if diagnosed with a mental illness.[10]

   [10] Sources as cited at [28] to [34] of COI Memorandum

3. Considering the above country information, I acknowledge that there are limitations in South Korea’s mental health system. I also accept that persons with mental health conditions may satisfy the definition of a particular social group in s 5L of the Act. However, I am not satisfied that limitations in relation to mental health services arise from systematic and discriminatory conduct by the Korean government for the essential and significant reason of a person’s membership of this group. The above information indicates that the government has taken significant steps since 1995 to improve mental health services and continues to invest resources in enhancing access to mental health services. Further, the government contributes to a universal public health care system, including offering the Medical Aid Program to enable access to health care services for low-income or unemployed citizens.

4. For the purposes of the complementary protection criterion, I am not satisfied that limitations in mental health services in South Korea amount to any of the types of significant harm in
   s 36(2A), including cruel or inhuman treatment or punishment or degrading treatment or punishment. I have considered the representative’s submissions, with reference to international jurisprudence, that the applicant’s circumstances may satisfy the meaning of cruel or inhuman treatment or punishment or degrading treatment or punishment on the basis that she will be unable to access adequate mental health facilities in South Korea. However, for the reasons below I am not satisfied that this would be the case.

5. The Department’s Complementary Protection Guidelines address claims relating to the inadequacy of medical treatment in an applicant’s receiving country, including claims that an existing medical condition would be exacerbated as a result of an applicant’s return. The Guidelines note that claims of this nature will generally not amount meet the definitions of arbitrary deprivation of life, cruel or inhuman treatment or punishment or degrading treatment or punishment. The Guidelines note that where removal would threaten a person’s life expectancy as a result of a pre-existing medical condition for which they could not receive the same medical care or treatment in their home country as in Australia, this is unlikely to amount to arbitrary deprivation of life because it would be due to natural causes and would therefore not be arbitrary.

6. While acknowledging developments in international jurisprudence regarding medical claims, the Guidelines state that Australia’s position remains that set out in the European Court of Human Rights cases of D v UK and N v UK. That is, in cases involving medical harm, non-refoulement obligations would arise only in ‘very exceptional circumstances’. Relevant factors include whether the applicant’s medical condition is terminal and, if so, the stage of their condition; the presence of family or carers in the receiving country; and, where medical treatment is not available or cannot be accessed, whether this would cause mental or physical suffering in line with the definitions of cruel or inhuman treatment or punishment or degrading treatment or punishment.

7. As discussed above the definitions of cruel or inhuman treatment or punishment and degrading treatment or punishment in s 5(1) of the Act require an intention on the part of a perpetrator to inflict severe mental pain or suffering or cause extreme humiliation which is unreasonable. This requires an actual, subjective intention on the part of the perpetrator to inflict harm of the requisite nature.[11] Considering the above country information, I find that the South Korean government does not hold an intention to inflict severe mental pain or suffering or cause extreme humiliation which is unreasonable on persons suffering mental health conditions.

   [11] Complementary Protection Guidelines; SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [27]; SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989 at [62] and [72] (upheld on appeal: SZSPE v Minister for Immigration and Border Protection [2014] FCA 267 at [40]).

8. While acknowledging limitations in mental health services in South Korea, based on the country information outlined above I am not satisfied that there is a real risk the applicant would be unable to access adequate treatment or supports on return, whether community based or in-hospital treatment. I have found above that the applicants have family support in South Korea, in the form of the applicant’s father, [sibling] and maternal cousin. As discussed below, I am not satisfied that societal stigma toward mental health in South Korea would prevent the applicant from accessing mental health treatment.

9. If the applicant’s mental health were to deteriorate to an extent that prevented her from working for a period of time, I am satisfied that she could access government welfare programs as outlined above which, with the support of her family, would enable the applicants to subsist. If the applicant required hospitalisation for a period of time to undergo mental health treatment, I find that the second applicant would have the support of his grandfather, [uncle/aunt] and mother’s cousin. As such, I find there is not a real chance that he would be placed into government or foster care, resulting in a risk of ongoing separation from the applicant.

10. Considering all the above, I am not satisfied that the applicant’s circumstances regarding mental health care satisfy the threshold of ‘very exceptional circumstances’ that would engage Australia’s non-refoulement obligations. 

11. I accept there to be a real chance that the applicants would be subject to a degree of societal discrimination or stigma, in the form of negative comments, attitudes or unfavourable treatment, if the applicant’s mental health problems became evident. However, even taking into account their personal attributes and vulnerabilities, I am not satisfied that this amounts to serious harm for the purposes of s 5J(4)(b), including serious mental harm. Considering the applicant’s experience with accessing mental health treatment in Australia and the support of her family in South Korea, I am not satisfied that societal stigma would prevent the applicant from accessing mental health treatment on return.

12. While I accept her mental health condition may result in a degree of employment-related discrimination for the applicant, I am not satisfied it would amount to significant economic hardship, the denial of the capacity to earn a livelihood of any kind, or the denial of access to basic services that would threaten the applicants’ capacity to subsist.

13. For the same reasons as above, I accept there to be a real risk that the applicants will experience a degree of societal discrimination or stigma due to the applicant’s mental health issues. However, I am not satisfied this would amount to any of the types of significant harm in s 36(2A). Regarding the definitions of cruel or inhuman treatment or punishment or degrading treatment or punishment, I am not satisfied that there would be a perpetrator with the intention to inflict on the applicants severe physical or mental pain or suffering or extreme humiliation which is unreasonable.[12]

    [12] SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [27]; SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989 at [62] and [72] (upheld on appeal: SZSPE v Minister for Immigration and Border Protection [2014] FCA 267 at [40])

14. I have accepted above that returning to South Korea is likely to increase the risk of self-harm for the applicant. However, the Courts have confirmed that the definitions of significant harm in s 36(2A) of the Act do not encompass self-harm or harm arising from mental illness on return to a receiving country.[13]

    Cumulative consideration

    [13] GLD18 v Minister for Home Affairs [2020] FCAFC 2 at [37]; CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 at [65]–[68]

15. As noted in the Department’s Refugee Law Guidelines, although individual acts may not amount to serious harm as an element of persecution, multiple acts when taken together, may amount to serious harm. This requires consideration of whether each individual form of harm feared is directed at the applicant for one or more of the refugee protection reasons, and whether the combined and sustained effect of the harm amounts to serious harm.[14]

    [14] Refugee Law Guidelines at [3.11.8] to [3.11.9]

100.   As outlined above, I am not satisfied that the applicant’s claims regarding outstanding debts relate to any of the reasons in s 5J(1)(a). I have found that the claims relating to family status and mental health may be for reasons of membership of a particular social group and give rise to a real chance of societal discrimination. I have found that the applicants will not face a real chance of persecutory harm from the State for reasons of their family status or mental health. Considering my findings above and in the applicants’ particular circumstances, I am not satisfied that when considered cumulatively, the combined and sustained effect of the societal discrimination amounts to serious harm.    

101.   For the purposes of the complementary protection criterion, I acknowledge that a number of acts or omissions, intentionally inflicted, could cumulatively amount to torture or to cruel or inhuman treatment or punishment or degrading treatment or punishment if, when taken together, they inflicted harm of the requisite nature. However, I have found above that there would be no intentional infliction of such harm by the Korean government or members of society in connection with the applicants’ family status or mental health issues. I am not satisfied that when considered cumulatively, there would be an intentional infliction of harm that would amount to any of the types of significant harm in s 36(2A).

Conclusions

1. For the reasons given above I am not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visas.

   Referral for Ministerial intervention

103.   I have considered the circumstances of this case with respect to the Minister’s Guidelines relating to their personal non-compellable power under s 351 of the Act to substitute a decision of the Tribunal for one that is more favourable to the applicant if it is in the public interest to do so. The Guidelines indicate that the Minister will generally only exercise the discretion in cases which exhibit one or more unique or exceptional circumstances. For the reasons below, I find it appropriate to refer this case to the Minister.

104.   I consider there to be compelling compassionate circumstances regarding the age, health and/or psychological state of the applicants that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to them. As outlined above, both applicants were subjected to significant physical, sexual, psychological and emotional abuse in Australia. In addition, the applicant was subjected to significant financial abuse. The second applicant experienced this abuse as a young child, being [age] years old at the time of his arrival in Australia.

105.   Both applicants have experienced trauma and mental health issues as a result. The applicant continues to experience significant mental health challenges. She was most recently admitted to hospital for psychiatric treatment in mid-2023 due to suicidal ideation, has a current diagnosis of PTSD and Major Depressive Disorder, and has been recently assessed as being at risk of serious self-harm on return to South Korea.

106.   While I have found their protection claims to not satisfy the refugee or complementary protection criteria, I consider that in their particular circumstances an involuntary return to South Korea may result in serious, ongoing, and irreversible harm, particularly in the context of the risk of serious self-harm by the applicant, which would also have significant implications for the second applicant. 

107.   This case also raises circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child, with respect to the second applicant who is currently [age].

DECISION

108.   The Tribunal affirms the decisions not to grant the applicant protection visas.

Date of hearing: 19 May 2025

Representative for the applicants:  Ms Jennifer Nugent

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.

…