2411742 (Refugee) - [2024] AATA 4375

2411742 (Refugee) [2024] AATA 4375 (27 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Eugenia Anang
CASE NUMBER: 2411742

COUNTRY OF REFERENCE: Korea, Republic Of
MEMBER:Damian Creedon
DATE:27 August 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 August 2024 at 3:57pm
CATCHWORDS
REFUGEE – protection visa – South Korea – no Convention nexus – older workers – employment – age discrimination law – lengthy stay in Australia – economic conditions – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v MZYYL (2012) 207 FCR 211
MIEA v Guo (1997) 191 CLR 559
MIMIA v VFAY [2003] FCAFC 191
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 May 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background:
The applicant, [an age]-year-old citizen of the Republic of Korea (South Korea), applied for the visa on 2 August 2019. The applicant most recently arrived in Australia [in] February 2005 as the holder of an Electronic Travel Authority (UD-976) visa. The applicant is currently onshore holding a Bridging visa.
Protection visa application:
The applicant’s written claims for protection may be summarised as follows:
a.The applicant states that he “left South Korea for employment opportunities”. He claims that:
[His] need for protection arose after he attained the age of 50 and he has been residing in Australia since 2000.
b.If the applicant returns to South Korea, he claims he will be unable to find work due to his age, and to having resided outside of South Korea for a substantial period of time.
c.He claims that, despite the government’s “new legislation” to eliminate age discrimination, it is still a common practice in recruitment process in South Korea.
d.The applicant claims he is unable to relocate to other part of the country because the age discrimination is practiced nationwide; he claims:
Significant harm in the form of a denial of the capacity to earn a livelihood of any kind [which] will threaten his capacity to subsist.
The delegate refused to grant the visa on 14 March 2019 on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2411742 (Refugee)

Details

AGLC: 2411742 (Refugee) [2024] AATA 4375
Case: [2024] AATA 4375
Decision Date: 27 August 2024

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse to grant the applicant, a citizen of South Korea, a protection visa. The applicant, who had resided in Australia since 2005, claimed that upon returning to South Korea, he would be unable to find work due to his age and extended absence from the country, leading to significant harm and threatening his capacity to subsist. The delegate had refused the visa on the basis that the applicant was not a refugee under section 5H(1) of the *Migration Act 1958* (Cth) and that there were no substantial grounds to believe he would suffer significant harm if removed to South Korea.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa, specifically whether he was a refugee under section 36(2)(a) of the Act, or alternatively, whether Australia had protection obligations towards him on complementary protection grounds under section 36(2)(aa). This involved assessing whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or whether there was a real risk of significant harm upon his removal to South Korea.

The Tribunal reasoned that the applicant had not established a well-founded fear of persecution. While acknowledging the applicant's concerns about age discrimination in employment in South Korea, the Tribunal considered current economic data for South Korea, which indicated a strengthening economy with a low unemployment rate. The Tribunal found that any economic hardship the applicant might experience would not amount to significant harm as defined by the Act, as it was not the result of deliberate action intended to cause such harm. Furthermore, the Tribunal found no evidence of systematic or discriminatory conduct that would constitute persecution. Consequently, the Tribunal concluded that the applicant did not satisfy the refugee criterion under section 36(2)(a) or the complementary protection criterion under section 36(2)(aa).

The Tribunal affirmed the delegate's decision to refuse to grant the applicant a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 May 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).Background: The applicant, [an age]-year-old citizen of the Republic of Korea (South Korea), applied for the visa on 2 August 2019. The applicant most recently arrived in Australia [in] February 2005 as the holder of an Electronic Travel Authority (UD-976) visa. The applicant is currently onshore holding a Bridging visa.Protection visa application: The applicant’s written claims for protection may be summarised as follows:a.The applicant states that he “left South Korea for employment opportunities”. He claims that:[His] need for protection arose after he attained the age of 50 and he has been residing in Australia since 2000.b.If the applicant returns to South Korea, he claims he will be unable to find work due to his age, and to having resided outside of South Korea for a substantial period of time.c.He claims that, despite the government’s “new legislation” to eliminate age discrimination, it is still a common practice in recruitment process in South Korea.d.The applicant claims he is unable to relocate to other part of the country because the age discrimination is practiced nationwide; he claims:Significant harm in the form of a denial of the capacity to earn a livelihood of any kind [which] will threaten his capacity to subsist. The delegate refused to grant the visa on 14 March 2019 on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm. The applicant applied for a review of the delegate’s decision on 13 May 2024. Application for review: The applicant was represented in relation to the review. The applicant was invited to appear before the Tribunal on 22 August 2024 to give evidence and present arguments. By emails dated 17 and 20 August 2024, the applicant’s representative confirmed that the applicant consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear. The Tribunal therefore cancelled the hearing scheduled for 22 August 2024 and provided written advice of the cancellation to the applicant’s representative by email dated 20 August 2024. In these circumstances, the Tribunal considers it appropriate to determine the review without a hearing in accordance with s 425(2)(b) of the Act.Evidence The Tribunal has before it a range of material including, relevantly: (a)the applicant’s protection visa application forms (PVA Forms);[1] (b)the applicant’s identity documents, being his passport; (c)the protection visa decision (delegate’s decision); (d)the application for review forms, which included a copy of the delegate’s decision.[1] Although the applicant’s PVA Forms name his wife [named] as a secondary applicant, only the applicant has made an application for review to the Tribunal.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEThe relevant law: The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, she or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b). Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if she or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that she or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. Country of reference:

Decision

Reasons for decision

In its most recent overview of South Korea’s economy,[10] the International Monetary Fund (IMF) reports that (citations omitted):[10] See: < many other advanced economies, Korea has faced challenges from inflation and a growth slowdown. Growth declined from mid-2022, as global demand for electronics waned and domestic demand weakened, but has started to recover in recent quarters. Headline inflation has declined significantly after peaking in mid-2022, though core inflation has remained stickier. Pockets of financial sector vulnerability have emerged amid higher interest rates and declining housing prices. Swift policy measures have helped to stabilize financial and housing markets, and financial risks, while having increased, appear to remain manageable.The Korean economy is expected to strengthen amid a gradual recovery of global semiconductor demand, a strong domestic labor market, and ongoing stabilization of the housing market. Growth is projected to reach 1.4 percent for 2023 and 2.2 percent in 2024. The slowdown in growth of main trading partners and higher-for-longer global interest rates act as a drag on near-term growth, while stronger-than-previously-envisaged growth prospects of the Chinese economy are expected to help mitigate impacts on Korean exports. Despite a temporary rebound in recent months, inflation is projected to continue moderating and approach the authorities’ 2 percent target by end-2024.The economic outlook is subject to a high degree of uncertainty, with risks tilted to the downside. Near-term growth prospects critically depend on the strength of the rebound of the semiconductor cycle and China’s demand for Korean exports of goods and services. Main risks also include weaker growth and tighter monetary policy in major economies, heightened commodity price volatility, resurgence of global banking turmoil, reduced trust in domestic non-bank financial institutions, and a renewed domestic real-estate sector downturn. Moreover, Korea is vulnerable to intensification of geo-economic fragmentation. Upside risks to growth include a stronger rebound in global semiconductor demand and a faster decline in global inflation.[…]Executive Directors welcomed the Korean economy’s resilience, supported by the authorities’ effective policy response. Directors noted that growth is expected to gradually strengthen, supported by an improved economic outlook in key trading partners; inflation should continue to moderate; and financial risks remain manageable. Noting high uncertainty to the outlook, Directors agreed that the near-term policy mix should remain restrictive to limit the rise in public debt and support disinflation. They also called for structural reforms to reinvigorate long-term growth.Directors agreed that monetary policy should remain restrictive for a considerable time and remain data dependent and be carefully communicated. They concurred that foreign exchange (FX) reserves remain adequate and emphasized that FX interventions should remain limited to preventing disorderly market conditions.Directors called for continued fiscal policy normalization and welcomed the moderate consolidation and the focus on welfare spending envisaged in the 2024 budget. Given the revenue shortfall in 2023, they welcomed the continued execution of budgeted spending using government deposits and funds, which should limit the drag on growth. Directors suggested better aligning domestic energy prices with international prices to pass through price signals and safeguard the financial health of public utilities.Directors welcomed the policy actions that helped stabilize housing and financial markets. They stressed that financial market support should remain temporary and targeted, while housing-related measures should strike a balance between preventing excessive price falls and allowing for orderly adjustment. Noting high and rising household debt, Directors welcomed the tightening of regulations of mortgage support programs.Directors recommended enhancing financial resilience through stronger buffers, regulation, and supervision. They welcomed the plans to enhance banks’ liquidity and loss absorption capacities and improve the regulatory and supervisory frameworks for credit cooperatives. Directors also welcomed the initiatives to buttress the soundness of non-bank financial institutions (NBFIs), including by narrowing regulatory gaps between NBFIs and banks.Directors underscored the importance of structural reforms for boosting productivity growth in the face of demographic headwinds. They encouraged further efforts to spur innovation, increase labor market flexibility, and close gender gaps. A few Directors suggested increasing immigration to help boost potential growth. Directors called for pension reform to safeguard long-term fiscal sustainability and supported a rules-based fiscal framework to anchor public finances. They welcomed the release of the 1st National Framework Plan for Carbon Neutrality and Green Growth and recommended stronger policies to meet climate objectives. Directors stressed that trade and investment measures should remain narrowly targeted to specific objectives and consistent with WTO obligations. They welcomed the authorities’ continued support for an open trade environment and diversification efforts.The Tribunal notes the IMF’s current “Real GDP growth Annual Percentage Change” for South Korea is 2.3%, and its current unemployment rate is 3.8%.[11] By comparison, Australia’s “Real GDP growth Annual Percentage Change” is 1.5% and its unemployment rate is 5.2%.[12][11] See: < Ibid.In view of this country information the Tribunal is not persuaded that the applicant would be subjected to significant economic hardship in South Korea that threatens his capacity to subsist there. The Tribunal finds, therefore, that the applicant does not have a well-founded fear of persecution in South Korea based upon a claim of economic hardship or an inability to find employment.Complementary protectionThe Tribunal accepts the applicant has concerns about being able to find work if he returns to South Korea and the general economic situation there. The Tribunal also accepts that he may face some difficulty in doing so at least initially. However, the applicant did not suggest that any person or group will seek to harm him for any reason relating to his economic situation. There is no evidence before the Tribunal that he has ever been discriminated against or otherwise prevented from obtaining work in South Korea. For the reasons set out above the Tribunal rejects the applicant’s bare claims that his age and/or his absence from South Korea will be significantly limiting factors on his ability to find and retain work in South KoreaAccordingly, the Tribunal finds that any economic hardship the applicant might experience, if removed to South Korea, would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission of any group or person done with the intention of causing him to suffer significant harm.Therefore, the Tribunal finds that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to South Korea, there is a real risk he will suffer significant harm. Conclusions:Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as set out in his application, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to South Korea now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to South Korea. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act. Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harmThe Tribunal has considered the applicant’s claims under complementary protection. The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to South Korea. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.Conclusion: Refugee CriterionConsidering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.Conclusion: Complementary ProtectionConsidering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to South Korea that there is a real risk that he will suffer significant harm.Overall conclusion:For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).DECISIONThe Tribunal affirms the decision not to grant the applicant a protection visa.Damian CreedonMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if she or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that she or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. Country of reference: The applicant claims to be a citizen of the Republic of Korea (South Korea). Based on evidence provided to the department by the applicant, namely his passport, and in the absence of any other evidence to the contrary, the Tribunal finds that the Republic of Korea (South Korea) is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act. Assessment of evidence – general principles: The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).