Skip to content

Tribunal: Member T Flood

The applicant applied to the AAT for review of a decision made by the Department of Immigration and Border Protection (the Department) to refuse a protection visa. The AAT affirmed the decision not to grant the applicant a protection visa.

Australia has an obligation to protect individuals who are found to be a refugee or to whom other ‘complementary protection’ grounds apply[1]. The ‘refugee criterion’ broadly requires applicants to have a ‘well-founded fear of persecution’ and be unable to return to the country of their nationality[2]. The complementary protection grounds broadly require that there is ‘a real risk of significant harm’ to the applicant should they be removed from Australia and sent to a receiving country[3].

The applicant claimed that he would suffer harm in South Korea because of his intellectual disability and applied for a protection visa on this basis. The applicant’s father also claimed that there was a lack of resources to help with his issues. A number of specialist medical reports to the AAT indicated that despite his intellectual disability, the applicant had the potential to live independently and find appropriate employment. The applicant also claimed that his return to South Korea would lead to him being bullied and stigmatised by the community. However, country information indicated that the South Korean government has legislation and policies to deal with discrimination and improve the care of persons with intellectual disabilities. The AAT was satisfied that there were effective protective measures in place and that the applicant did not have a well-founded fear of persecution nor did the complementary protection grounds apply.

Although the AAT affirmed the decision not to grant the applicant a protection visa, it recommended the Department consider the case for Ministerial Intervention given the strong compassionate circumstances.

Read the full decision.

[1] Migration Act 1958 (Cth), s 36(2).

[2] Migration Act, s 36(2)(a), s 5H.

[3] Migration Act s 36(2)(aa), s 36(2A).