2411742 (Refugee)

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 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.
The Tribunal has also read and had regard to the Department of Foreign Affairs and Trade (DFAT) DFAT Country Brief: South Korea,[2] and to various other sources of country information, particulars of which are set out in the analysis below.
[2] See: < accessed 14 August 2024.
The Tribunal has also had regard to the following documents, copies (and, where relevant, translations) of which were provided by the applicant to the department:
a.Newspaper article: Woo-young L, “Age discrimination rife in Korea despite legislation”, The Korea Herald, 27 March 2012.
b.The applicant’s “Certificate of Marital Status” certifying the registration of his marriage [in] January 1985.
c.The applicant’s wife’s “Learner Driver Licence” issued by the Government of New South Wales.
d.The applicant’s wife’s passport issued by the Republic of Korea.
e.The applicant’s “Certificate of Resident Registration” issued by the Republic of Korea.
f.The applicant’s “Certificate of Military Service Registration” issued by the Republic of Korea.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The 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:
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).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has had regard to the President's Directions and in particular the direction that members are to take all reasonable steps to complete papers allocated to them as quickly as possible, and that generally in reviewing a decision to refuse the grant of a protection visa members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.
Findings:
Based on the materials before it, including the applicant’s written application to the department, the Tribunal finds that the applicant is [an age]-year-old male of Korean ethnicity and the Christian faith. He is qualified as [an occupation 1] and has been employed as [an occupation 1] for a [business 1] in Australia since 1 April 2003. He is married and he and his wife have [number] children. At the time of his application two of his children were resident in Australia, one of whom is an Australian Permanent Resident.
It is against this background that the applicant’s claims will be considered.
Analysis:
Country information: protection against age discrimination in South Korea
The United States Department of State (USDOS)’s 2022 Country Reports on Human Rights Practices: South Korea[3] notes that South Korea is a constitutional democracy governed by a president and a unicameral legislature. There were no significant human rights noted relevant to the current application, and the USDOS reported that the government of South Korea took steps to identify, investigate, prosecute, and punish officials for corruption and human rights abuses. There were no reports that the government or its agents committed arbitrary or unlawful killings, and there were no reports of disappearances by or on behalf of government authorities.
[3] See generally: USDOS, “2022 Country Reports on Human Rights Practices: South Korea”, < accessed 21 August 2024.
The USDOS noted that the constitution of South Korea provides for the right to a fair and public trial, and an independent judiciary generally enforced this right. Of relevance to the present application, the USDOS notes:
Citizens may file lawsuits seeking damages for, or cessation of, a human rights abuse. Individuals and organizations may appeal adverse decisions to domestic human rights bodies, and then to the UN Human Rights Committee. Administrative remedies are also available for alleged wrongs.
Under the heading “Discrimination with respect to employment and occupation”, the USDOS notes:
The law prohibits discrimination in employment or occupation based on gender, nationality, social status, age, religion, or disability. No law explicitly prohibits discrimination based on race or ethnicity, sexual orientation, language, or HIV or other communicable disease status. The penalties for employment discrimination were commensurate with laws related to similar violations. Penalties were regularly applied to violators. The law prohibits companies with more than 30 employees from asking job applicants regarding family members, place of origin, marital status, age, or property ownership.
The USDOS also notes that:
The National Human Rights Commission of Korea, established as an independent government body to protect and promote the human rights enumerated in the constitution, does not have enforcement power, and its recommendations and decisions are nonbinding. It investigates complaints, issues policy recommendations, trains local officials, and conducts public-awareness campaigns.
The Korean National Police Agency’s Human Rights Protection Division investigates allegations of human rights abuses by police.
The Ombudsman’s Office investigated public grievances, mediated, and arbitrated disputes between public and government agencies, and evaluated services provided by central and local governments and education offices.
More specifically to the current application, the Tribunal notes the following summary of age discrimination law in South Korea prepared by Yulchon LLC, Attorneys at Law, Seoul, South Korea (the Yulchon opinion):[4]
[4] See generally: Yulchon LLC,< accessed 21 August 2024.
OVERVIEW
The Prohibition of Age Discrimination in Employment and Aged Employment Promotion Act (the “AEPA”) is the primary law that specifically deals with age discrimination related issues in Korea. Although other laws such as the Framework Act on Employment Policy and the National Human Rights Commission Act (the “NHRCA”) also have provisions prohibiting age discrimination in employment, those other laws by themselves provide only an investigatory procedure resulting in a non-binding recommendation or a mere statement, with no means of obtaining enforceable, binding remedies for age discrimination. To remedy this absence, the AEPA was enacted in 2008, amending the former Aged Employment Promotion Act. A major impetus for the enactment of the AEPA was the fact that many Korean companies had been setting age limits or considering age as a factor with respect to recruitment and redundancies, which had become a social issue of great concern in Korea.
Age discrimination under the AEPA means treating a person or members of an age group disadvantageously compared to other persons of a different age or age group under similar circumstances. The concept of discrimination includes not only economic disadvantages but also non-economic disadvantages. Disadvantages that have not occurred but are expected to occur in future also fall within the concept of discrimination.
Direct Discrimination (Disparate Treatment)
Article 4-4(1) of the AEPA expressly prohibits employers from discriminating, without justifiable grounds, against individuals on the basis of age regarding recruitment and employment; salary, education and training; placement, transfer, or promotion; and retirement or dismissal.
Indirect Discrimination (Disparate Impact)
Any adverse effect on a certain age group that results from applying standards that are on their face age-neutral is deemed to be age discrimination absent sufficiently justifiable reasons. The prohibition of indirect discrimination may bar the use of seemingly neutral standards such as knowledge, experience or qualifications, where as a result of applying these standards, a certain age group is unreasonably disadvantaged.
Since the AEPA only prohibits discrimination without justifiable grounds, if an employer is able to prove justifiable grounds for the employer’s discriminatory act, or policy with a disparate impact on a certain age group, the employer has not violated the AEPA.
WHO’S COVERED?
The AEPA applies to virtually all employers of any size, and covers all age groups meaning that both elderly and younger workers are protected from discrimination. It should be noted, however, that the AEPA’s obligation to “endeavour” to employ aged people at a certain minimum workforce ratio, and to file reports regarding one’s aged employment ratio) only applies to employers with at least 300 employees.
WHAT ENFORCEMENT/REMEDIES EXIST?
An employee who has suffered discrimination based on age may file a petition [1] with the National Human Rights Commission (the “NHRC”) pursuant to Article 30 of the NHRCA. [2] The NHRC will then investigate the claim and may issue a non-binding advisory opinion, and notify the Ministry of Employment and Labour (the “MOEL”) thereof. If the employer fails to comply with the NHRC’s advice without providing a justifiable reason, and if the discrimination involves substantial harm, [3] the MOEL, either at the employee’s request [4] or sua sponte, may order the employer to rectify the discriminatory behaviour. Failure to comply with such an order may result in an administrative fine of up to KRW 30 million. Moreover, discriminatory treatment in the context of recruiting or hiring may be subject to a criminal fine of up to KRW 5 million, [5] separately from the petition process through the NHRC.
Retaliation against an employee for reporting age discrimination is subject to potentially more serious penalties: imprisonment for up to two years or a fine of up to KRW 10 million.
HOW COMMON ARE CLAIMS?
According to the statistics provided by the NHRC in January 2014, after the enactment of the NHRCA in 2006, roughly 80,000 petitions were made. Among them, 21% were discrimination-related petitions. Approximately 7% of all petitions were regarding age discrimination. 2017, however, witnessed a decrease – approximately 3.6% of all discrimination-related petitions that year were regarding age discrimination. In 2022, about 8.1% of discrimination-related petitions were about age discrimination.
Since the implementation of the AEPA, over the first 5 years (2009-2013) an average of 157 petitions regarding age discrimination were filed annually, which is more than double the numbers filed in 2008. In 2022, 165 petitions regarding age discrimination were filed.
WHAT CLAIMS ARE MOST COMMON AND WHAT ARE TRICKIEST ISSUES FOR EMPLOYERS?
The most common type of petition filed with the NHRC is for discrimination claims involving recruitment and employment, while petitions regarding discrimination in other areas such as transfer, promotion and education have been relatively small in number. Although not covered by the AEPA, age-discrimination petitions in non-employment areas have seen a considerable increase with 17 cases in 2008, and 44 in 2012. Continuing this trend, 36 age-discrimination petitions in non-employment areas were filed in 2021.
ARE THERE ANY SPECIFIC EXCEPTIONS IN YOUR LAWS?
The AEPA enumerates several justifications for policies and practices that otherwise might constitute unlawful age discrimination, namely:
Where a certain age limit is inevitably required in light of the nature of the relevant duties;
Where compensation and benefits are differentiated based on length of service;
Where a retirement age is set by an employment contract, rules of employment, or CBA, pursuant to the AEPA or other laws;
Where support measures are taken to maintain and promote the employment of a certain age group pursuant to the AEPA or other laws.
RETIREMENT AGES
An employer’s internal retirement age is highly significant in Korea, because it is extraordinarily difficult to involuntarily terminate employees prior to their reaching the mandatory retirement age set by company policy. The AEPA expressly states that when an employer sets a retirement age for employees, the employer must set the age no lower than 60 years of age. If an employer sets the retirement age lower than 60 years it is deemed extended to 60 years. This mandatory floor for companies retirement ages has had a significant impact on the country’s labour sector, as many companies had previously set their retirement age in the mid to late 50s. Many of the top corporations in Korea responded by adopting or attempting to adopt a wage-peak system as a way of mitigating the burden of paying employee salaries to workers who otherwise would have been required to retire. A wage-peak system involves applying regular salary reductions – instead of raises – to employees after they reach a certain age, for the remainder of their service until reaching the retirement age.
The introduction of wage-peak systems has been a matter of significant controversy and opposition by labour unions and workers organisations, and the legal question of whether such a policy requires collective employee consent has been definitively resolved by a 2017 Supreme Court decision that concurred with the 2016 Guidelines from the Ministry of Employment and Labor in holding that a company’s adoption of a wage-peak system is an adverse change requiring employees’ majority consent.[6]
INTERESTING CASES
On May 26, 2022, the Korean Supreme Court held that the wage-peak system of the Korea Electronics Technology Institute was a form of illegal age discrimination. However, the Court left open the possibility that wage-peak systems may be justified by their particular circumstances, and explained the factors that should be taken into account in evaluating any justifying circumstances. [7] The major question now is how the courts will apply this standard to other wage-peak systems, in particular those that were established in response to the amendment of the AEPA (effective 2016) which required companies to increase their mandatory retirement ages to 60. Since the Supreme Court’s 2022 decision, at least one case has been decided in which the courts found that a wage-peak system was justified based on the circumstances, including the fact that it was adopted in response to the 2016 amendment of the AEPA.
Footnotes
[1] A petition must be filed within 1 year from the date the claim has arisen. (NHRCA, Article 32(1))
[2] AEPA, Article 4-6(1). So, the agency who initially determines matters relating to age discrimination is the NHRC, even if it is relating to the employment and labour issues.
[3] “Substantial discrimination” refers to situations including discrimination against many people, repeated discrimination, and intentional non-compliance. (AEPA, Article 4-7(1))
[4] Such request has to be made within 6 months from the date of the NHRC’s advisory opinion. (AEPA, Enforcement Decree, Article 4 (2))
[5] AEPA, Article 23-3(2). Due to the dual liability provision, not only the person responsible for such discrimination (in many case the representative and the relevant manager) but also the company will be liable by fine. (AEPA, Article 23-4)
[6] Ministry of Employment and Labour Guideline on the Interpretation and Implementation of Work Rules (Jan. 22, 2016); Case No. 2017da209129 (Sup. Ct. May 31, 2017). Adopting a wage-peak system typically requires amendment of existing work rules or rules of employment of a company. Work rules may be amended by a company through consultation with employees. If such amendment is considered adverse to employee’s interests however, the company generally must obtain the majority consent of those affected employees, except for a case where those changes are “reasonable in accordance with established social norms”. Whether adoption of a wage-peak system is an adverse change requiring employees’ consent, and even so, whether it may fall within the limited “reasonable in accordance with established social norms” exception were, until recently, matters of significant controversy in Korea.
[7] Case No. 2017da292343(Sup. Ct. May 26, 2022).
Is effective protection available to the applicant?

As set out above, a person is a refugee if they are outside the country of their nationality and, owing to a well-founded fear of persecution, they are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a).
The meaning of ‘well-founded fear of persecution’ is prescribed by s.5J of the Act. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted.
The Act provides, however, that a person does not have a well-founded fear of persecution if effective protection measures are available to the person in their receiving country: s 5J(2).
Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by (relevantly) the relevant State, and that State is willing and able to offer such protection.
A relevant State is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
The claim advanced by the applicant is that he is a member of a particular social group that comprises persons of an age group disadvantageously compared to other persons of a different age or age group under similar circumstances, namely for employment in a job or occupation for which he is otherwise qualified.
Based upon the country information set out above the Tribunal is satisfied that:[5]
a.South Korea is a country and society which respects the rule of law, and provides accessible remedial avenues to an impartial judicial system for aggrieved citizens;
b.the AEPA prohibits age discrimination in employment in South Korea without ‘justifiable grounds’;
c.an employee who has suffered age discrimination in employment may file a petition with the NHRC pursuant to Article 30 of the NHRCA; and
d.if, after investigation, an employer is found to have breached the AEPA and is reported to the MOEL, the MOEL may issue binding orders to the employer to rectify any breach and may impose administrative and/or criminal fines against the employer.
[5] The Tribunal adopts the abbreviations set out in the Yulchon opinion.
The Tribunal is satisfied therefore that, were a citizen to experience age discrimination in South Korea in the pursuit of employment, they could access the protections set out in the AEPA via petition to the NHRC; that such protections are durable; and that an impartial judicial system would adjudicate their complaint with resort, if necessary, to criminal sanctions. The Tribunal finds, therefore, that South Korea can offer effective protection to its citizens against age discrimination.
It follows, and the Tribunal finds, that effective protection measures against age discrimination are available to the applicant in South Korea, and that therefore he does not have a well-founded fear of persecution on that ground: s 5J(2).
The applicant therefore does not meet the refugee criterion in s.36(2)(a) of the Act.
Having made that finding, the Tribunal has considered the alternative criterion in s.36(2)(aa) which requires that the Tribunal find that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to South Korea, there is a real risk that he will suffer significant harm.
Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm.
The Tribunal relies upon the analysis and findings set out above to find that the applicant could obtain from the authorities of South Korea protection from age discrimination such that there would not be a real risk that he will suffer significant harm if removed there from Australia. The Tribunal is satisfied that the level of protection available to the applicant in South Korea in respect of age discrimination is such as to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL (2012) 207 FCR 211.
It follows, and the Tribunal finds that there is no real risk that the applicant will suffer significant harm in South Korea of the grounds of age discrimination if he is removed there.
The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
General economic conditions
The applicant claims that if he returns to South Korea, he will be unable to find work due to his age, and for having resided outside of South Korea ‘since 2000’.
In respect of the first limb of his claim, the Tribunal notes that the applicant is presently [age] years of age. The Tribunal notes the article provided by the applicant to the department in support of his claim.[6] That article, dating from 2012, includes interviews with individuals in South Korea who have experienced age discrimination in the pursuit of employment.
[6] See para [12.a] above.
Balanced against this, it is apparent from the Yulchon opinion that the jurisprudence surrounding South Korea’s anti-discrimination legislation, and the enforcement of its provisions, has been significantly enhanced since that time.
Moreover, contemporary country information suggests that there is a “rapid growth” in the “over-70” workforce in South Korea in response to demographic changes currently underway there. The news outlet “Hankyoreh” notes:
The first half of 2024 saw a 150,000-person increase in Korea’s 70-plus workforce, the largest increase since statistics have been recorded. Some suggest that the rapidly growing number of older workers should be better utilized to boost the country’s slowing economic growth.
According to the government-run Korean Statistical Information Service on Tuesday, the average number of workers aged 15 and over in the first half of 2024 (January-June) was 28.44 million, an increase of 220,000 from 2023. This growth was led by an increase in older Koreans continuing to work.
Compared to the same period last year, there were 282,000 more people aged 60 and over participating in the workforce, showing the largest increase out of all age groups. In particular, the number of employed aged 70 and over (1.93 million total) surged by 150,000, the biggest increase since 2018, which was when relevant statistics were first recorded.
The working population of young adults (ages 15-29) decreased by 115,000 in the first half of 2024, alongside an 82,000-person decrease in workers in their 40s. The number of employed persons in their 30s and 50s grew by 91,000 and 43,000, respectively, coming to only a fraction of the growth seen in older cohorts.
With the first half of the year as a reference, the overall growth of the workforce has slowed from 941,000 in 2022 to 372,000 in 2023 and 222,000 in 2024. However, the increase in the number of economically active people aged 70 continues to grow, seeing growth of 146,000 in 2022 and 148,000 in 2023.
A problem lies in the fact that seniors often take low-quality jobs. Last month, the Korea Development Institute released a study showing that the middle-aged and elderly work in low-skill, low-wage jobs after retirement.
This means that middle-aged people who have retired from the jobs they held for their entire lives are moving on to engage in work that has little to do with their previous careers, including manual labor.
The Bank of Korea also released an analysis on July 1 that showed that those belonging to the later generation of baby boomers (born between 1964 and 1974, about 9.54 million people) will start to retire gradually starting this year. This could reduce South Korea’s economic growth rate by about 0.4 percentage points.
Some suggest that older workers should be used to fuel the engine of economic growth. In its “Economic Surveys: Korea 2024” report released on July 11, the Organisation for Economic Co-operation and Development argued that “extending working lives and boosting elderly employment would considerably improve GDP and fiscal outcomes.”
The report also suggested introducing a flexible wage system irrespective of age, restricting “honorary retirement” before the mandatory retirement age, and raising the retirement age. The idea is that people should be able to utilize the job skills they acquired throughout their careers even as they age.
The government is also taking action. It is planning to announce a roadmap for sustainable employment and a plan to revitalize job transfers and reemployment for middle-aged and older Koreans in the second half of the year, as well as extending the legal retirement age, which is currently 60.[7]
[7] Tae-ho, A, “Hankyoreh”, So much for retirement? Korea sees rapid growth of over-70 workforce, 16 July 2024, < accessed 21 August 2024.
There is no maximum work age is proscribed by South Korean law, and there is no legal bar upon anyone in South Korea working for as long as they are willing and able.[8] The Tribunal rejects any implication that the applicant would be legally barred from working in South Korea upon attaining any specific age.
[8] See generally the Yulchon opinion.
Country information informs the Tribunal that “older workers” are increasingly being seen by employers as a resource to boost the country’s slowing economic growth.
The Tribunal finds no evidence to support the applicant’s claim that he would be unable to find work in South Korea due to his age, and his claim is rejected.
In respect of the second limb of his claim, that he will be unable to find work due to having resided outside of South Korea ‘since 2000’, there is no country information before the Tribunal to suggest that returnees to South Korea are mistreated or are subject to any adverse interest by the authorities there. The Tribunal notes that the applicant’s passport, issued by the Republic of Korea, remains valid through to [2025].
There is no evidence before the Tribunal to suggest that the applicant would be unable to find work in South Korea on the ground that he has been absent from there ‘since 2000’.
Refugee criterion
The Tribunal accepts that the applicant does not wish to return to South Korea as he has better employment opportunities in Australia. However, save as analysed and rejected above, the applicant made no claim that this circumstance would result from one or more than one of the five reasons enumerated in s.5J(1)(a) namely race, religion, nationality, political opinion, or membership of a particular social group.
Without a link between one of the characteristics of an individual enumerated in in s.5J(1)(a) and the persecution they fear, a nexus between the persecution of that individual and the Act is simply not established. Put differently, to fall within the ambit of s.5J(1)(a) of the Act, the harm feared must be for one or more than one of the five reasons, which are race, religion, nationality, membership of a particular social group or political opinion. None of these reasons apply to the applicant’s claim. Even where an applicant may have a particular vulnerability, harsh conditions of general application in a receiving country in, and of, themselves do not give rise to a well-founded fear of persecution for the purposes of the refugee criteria.[9]
[9]MIMIA v VFAY [2003] FCAFC 191 at [60].
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 protection
The 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 Korea
Accordingly, 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 harm

The 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 Criterion
Considering 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 Protection
Considering 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).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Damian Creedon
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4375

27 August 2024

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