Life for most people in North Korea is close to hell on earth. As respected NGO Human Rights Watch noted earlier this year, the “country is without organised political opposition, independent labor unions, free media, functioning civil society, or religious freedom. Arbitrary arrest, detention, torture, inhuman and degrading treatment of detainees are routine, and lack of due process in the criminal justice system is endemic.”

So how is it that Australia’s migration system can reject an asylum application from a North Korean woman who had fled her homeland after family members had been persecuted and who fears imprisonment and possible death if she has to return?

On September 13 this year, the Refugee Review Tribunal decided to refuse a protection visa to this applicant, (called M for the purposes of this story), because theoretically under South Korean law she is a citizen of that country.

M’s story is one of a determined individual seeking nothing more than a safe and secure life. She left North Korea in 2002, six years after her father was arrested by authorities for allegedly criticising the government. M’s husband divorced her because of the isolation she and her family endured after the arrest. So M fled to China, having to leave her young son behind, where she lived without documentation for four years.

She was nearly arrested but saved enough through working as a cleaner to come to Australia and a few days after arriving here went to see the Immigration Department in Sydney. M cannot return to North Korea because she will be seen as a traitor — she will certainly be imprisoned and may even be killed.

Extraordinary though it seems, the Immigration Department decided M was not entitled to a protection visa. Australia owes an obligation to protect refugees who are defined as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

The Immigration Department’s own medical assessment concluded that M was “displaying a range of symptoms associated with depression and post-traumatic stress disorder and is assessed as being incapable of undertaking paid employment.”

M naturally appealed against what seems, on the face of it, a cruel decision by the Immigration Department to force her to leave Australia. But she got no joy from the Refugee Review Tribunal.

The RRT found a different avenue to block M’s quest for asylum. M is a citizen of democratic South Korea as well as North Korea under the Constitution of the former nation so therefore she should go back to South Korea and live there, the Tribunal found. M told the tribunal that there are North Korean spies in South Korea, and she has gone through “difficult times in Australia”.  But this did not move the tribunal, which said it was bound by Australian law to refuse her protection because she could simply live in South Korea.

Peter Fray

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