1516972 (Refugee)
[2018] AATA 5138
•30 October 2018
1516972 (Refugee) [2018] AATA 5138 (30 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1516972
COUNTRY OF REFERENCE: Korea, Democratic People’s Republic of
MEMBER:Christine Cody
DATE:30 October 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 30 October 2018 at 5:10pm
CATCHWORDS
REFUGEE – protection visa – Democratic People’s Republic of Korea – Federal Court remittal – inconclusive evidence about receiving country – possible Chinese nationality – South Korean nationality acquired by birth – dual nationality – third country protection – illegal departure – religion – Christian – North Korean defector – conflicting evidence about paternity of second applicant – purchased and held captive – punishment imposed on family of defector – member of the same family unit – credibility concerns – decision under review affirmed
Practice and procedure – request for recusal – apprehended bias
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 36, 65, 91N, 91P, 91Q, 91R, 91S, 424A, 425, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Hussaini v MIMA [2002] FCAFC 10
MIEA v Guo & Anor (1997) 191 CLR 559
Moqbool Hussain v MIMA [2001] FCA 523
Nagalingham v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Raza v MIMA [2002] FCAFC 82
SZOAU v MIAC (2012) 199 FCR 448
SZOUY v MIAC [2011] FMCA 347Any 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW – SUMMARY[1]
[1] The source of this information is the delegate’s decision record provided to the Tribunal by the applicants, as well as the decisions of the courts.
This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act). The applicants were represented in the applications before the Department and the courts, and in relation to this review, by their registered migration agent.
The applicants are a mother, and her child born in Australia on [date], hereafter referred to as “the applicant” and “the child”. The applicant claimed to be a citizen of the Democratic People’s Republic of Korea (North Korea) and to have arrived in Australia [in] May 2011 on a false passport. She claims that she has no identity documents, and that the false passport was taken back by the broker.
The applicant applied for the protection visa on 30 May 2011, prior to the birth of the child. On 7 November 2011, the application was found by the Department to be invalid pursuant to s.91P(2) of the Act, on the basis that the applicant was claiming to be North Korean, and thus she was considered a dual national of North Korea and the Republic of Korea (South Korea). It was noted that no decision had been made by the Minister to lift this bar, pursuant to s.91Q of the Act.
The applicant lodged an application for judicial review to the (then) Federal Magistrates Court (FMC) on 14 December 2011. Before the FMC, the applicant contended, among other things, that she was not a dual national of South Korea, and that the visa application was not invalid pursuant to ss.91N(1) and 91P. The parties agreed, before the FMC, that South Korean law recognised a person whose father was born on the Korean Peninsula (including North Korea) as a South Korean national, and that a determination of whether the applicant acquired South Korean nationality by birth turned upon a factual inquiry of whether her father was born on the Korean Peninsula and had acquired South Korean nationality before the birth of the applicant.
The applicant gave evidence to the FMC, in the form of assertions about her parents’ places of birth, and claimed that some of the information she provided with her visa application was untrue.
The FMC was somewhat hesitant to make findings as to the effect of the South Korean law due to the dearth of information presented about the law (such as in the form of expert opinions). Noting that, the FMC was content to proceed on the assumption that sufficient evidence of foreign law had been presented and that the position was as agreed by the parties (especially as it transpired that, after taking evidence from the applicant, the court was unable to find with confidence the probable location of the applicant’s father’s birth). The FMC considered the applicant’s evidence unreliable and not sufficient to allow the court to arrive at the critical jurisdictional facts bearing on a determination under s.91N and s.91P. In this regard the FMC considered that the applicant had made a solemn declaration before a solicitor as to the truth of her application form, part of which she now said was not true. Her evidence appeared tailored to satisfy perceptions of self-interest (even if her motive to make false statements might be understandable). Her new evidence was unconvincing, lacking in circumstantial details, and appeared at odds with her asserted precise knowledge of her parents’ dates of birth. Assessed at its best, her evidence to the FMC showed such uncertainty and vagueness as to what, when and how she had been told about the birthplaces and family origins of her father as to cause the FMC to decide that her evidence lacks probative weight sufficient to persuade the court to make any relevant (positive) findings concerning the location of the birth of the applicant’s father.
The FMC considered that the applicant’s visa application form contained inconsistency but her responses before the FMC were open to the interpretation that she had asserted that her father had acquired North Korean citizenship by birth in [year] within territory over which both North and South Korea subsequently claimed sovereignty. The FMC considered that there was sufficient evidence in the material before the delegate upon which findings of dual nationality could have been made. The FMC was therefore not persuaded that the decision made by the delegate could be quashed on the ground that there was no evidence in the material before the decision-maker on that date upon which a finding of dual nationality could have been made. [In] December 2012, the application for judicial review was dismissed.
The applicant lodged an appeal, submitting, among other things, that the FMC had misconstrued the onus, by requiring the applicant to prove she was not a citizen of South Korea. The Federal Court allowed the appeal, holding that there was insufficient evidence to ground a finding, on the balance of probabilities, that the applicant was a South Korean national.
The Federal Court found that the FMC had erred in finding that in the face of the dearth of evidence, there was a basis for upholding the delegate’s decision that the applicant had dual nationality. Whatever the content of South Korean nationality law, the mere fact that the applicant claimed to be a North Korean national was not enough to engage the operation of s.91N of the Act. The delegate’s letter was not a sufficient basis to throw the onus on the applicant to prove that she was not a South Korean national, once the FMC was satisfied that South Korean nationality laws were more complex than the summary given in the delegate’s letter. Further, the delegate’s letter was pro forma and did not reveal that it had taken into account the individual circumstances of the applicant’s parents, as the court noted appeared to be required under South Korean law for determining South Korean nationality in accordance with the law set out in the primary judge’s reasons; the Federal Court noted that neither party had produced to the Federal Court on appeal the actual law referred to before the FMC, thus the court could only rely upon the law as set out in the decision of the FMC. The Federal Court found that it was not up to the applicant to prove that she was not a South Korean national. If the primary judge could not make a confident finding of the place of birth of the applicant’s father and any other requirement of South Korean nationality law, then it was necessary for him to find that the precondition to s.91N (ie that the applicant is a dual national) and therefore to the application of s.91P, had not been made out. For s.91N to apply to the applicant it was necessary for the FMC to find, on the balance of probabilities, that the applicant’s father was born on the Korean peninsula and thus that a necessary precondition to the operation of s.91P had been made out. This had not occurred; the Federal Court considered the applicant’s evidence provided to the FMC as recorded in the judgment and noted:
· The primary judge found that the only overtly ascertainable facts were that she appears to be an ethnically Korean woman of uncertain age who can converse in the Korean language. Her visa application says that she was born in North Korea in [year] and the attributes of her father are that he was born in China, his residence was North Korea, and he was North Korean by birth in [year].
· The Federal Court agreed that there is “some tension” between these assertions and it is not apparent from the evidence how they are to be reconciled.
· At the hearing before the FMC the applicant withdrew the written claim that her father was North Korean by birth, asserting that she had made it on the basis that she thought it would be more acceptable to the Australian government. No clarification was given as to the exact place of birth of her father and her best evidence was that she “had heard” that her father was born in China. She has never seen a birth certificate for herself or either of her parents.
· Her affidavit evidence is that she is not South Korean, has never been to South Korea, nor does she understand herself to have a claim to be a South Korean national.
· Although her application was made before the cases SZOUYv MIAC [2011] FMCA 347or SZOAU v MIAC (2012) 199 FCR 448 were decided so it is difficult to see how it could have been crafted to take account of them, some suspicion about her evidence before the primary judge would be open.
The Federal Court noted that the proceedings in the FMC were a hearing de novo at which the applicant had the opportunity to be heard and give evidence. It was noted that neither party provided to the court a copy of the transcript of the proceedings before the FMC. Further, it was considered that the delegate and the FMC would have benefitted from detailed expert opinions in the interpretation of South Korean law which addressed whether the applicant would be considered to be a South Korean citizen. During the appeal before the Federal Court, the Minister had sought leave to provide two expert reports from an expert in South Korean law; this leave was refused. It was noted that the reports could have led to a possible departure from the agreed position before the FMC, and the applicant’s representative argued that the introduction of the expert reports at that stage would blur the distinction between the issues considered appropriate to be considered at first instance and on appeal. The Federal Court agreed, and thus the appeal was conducted on the basis of the primary judge’s finding (based on the agreed position before the primary judge) in relation to South Korean nationality law. The Tribunal was not provided with these expert reports; it subsequently requested these from the Department.[2]
[2] The Tribunal has subsequently received the two expert reports from the Department, and it has forwarded them to the applicant, along with other information (email [in] November 2017, expert reports [dated] [in] April 2013).
The Federal Court stated that as neither the primary judge nor the Federal Court had been able to find evidence which satisfied either of them on the balance of probabilities that the applicant is a South Korean national, the Federal Court ordered that the delegate’s decision of 7 November 2011 (notifying the applicant’s protection visa application was invalid) be quashed, and that the Department should consider the application for a protection visa according to law.
By the time of the reconsideration, the applicant had given birth to the child (the second applicant in this case), who was added as an applicant to her protection visa application.
The applicants submitted to the Department (16 November 2015) that there is no evidence to contradict that these applicants are refugees from North Korea who do not have any right of refuge in South Korea. If they had a right of refuge in South Korea, they could not make a valid visa application.
The delegate considered the applications for protection visas and refused to grant the visas on 30 November 2015. The delegate was unable to make an identity finding for either applicant on the grounds of a lack of personal identifiers. The delegate considered that at the interview, the applicant was provided with an opportunity to demonstrate that she was a citizen of North Korea and had resided in North Korea. The delegate found that her knowledge was insufficient to give her the benefit of the doubt. The delegate was not satisfied that she was a North Korean citizen (and thus it was also not accepted that the second applicant was a North Korean citizen).
The delegate decided, however, to consider the matter as if the applicant was a North Korean citizen. In such circumstances it was found that she would have the right to enter and reside in South Korea (s.36(3) of the Act), with the second applicant.
The claims made against South Korea were also considered by the delegate; it was not accepted that the circumstances in South Korea would lead to a real chance of serious harm or a real risk of significant harm.
The Tribunal
Submissions were made to the Tribunal both before and after, and in between the two hearings. The Tribunal sent two letters pursuant to s.424A of the Act. The applicant appeared before the Tribunal on 18 October 2017 and 19 April 2018 to give evidence and present arguments. The registered migration agent was present on both occasions. The Tribunal hearings were conducted with the assistance of an interpreter in the Korean and English languages. Further submissions were made after the hearings.
The Tribunal member regrets the delay in finalising this matter. It notes that there were two hearings, and correspondence before and after the hearings and the applicants were provided with additional opportunities to provide post-hearing submissions to the Tribunal. Before making a decision the Tribunal has revisited the relevant parts of the audio recording of the Tribunal hearings, and the court decisions, the Departmental interview, as well as all the documentary evidence on the Departmental and Tribunal files to ensure the evidence upon which its findings are based are accurate.
For the reasons set out below, the Tribunal has decided to affirm the decision under review in relation to both applicants.
CONSIDERATION OF CLAIMS AND EVIDENCE
Departmental files [file number] and [file number]
The Tribunal has before it a number of Departmental files: [file number] and [file number], which contain documents relating to the protection visa application and consideration by the Department of validity. The files also contain other information (financial, permission to work, funding). The files include documents and evidence referred to below.
Letter of 26 May 2011
On 26 May 2011, the applicant’s agent lodged with the Department protection visa application forms, her written statement recorded in Korean and a translated copy of that statement into English (notes were also provided about corrections to the statement) and personal particulars. It was acknowledged that the applicant has no official documents to support a claim of being North Korean.
Protection visa application and form 80 (Personal Particulars) signed 26 May 2011
The applicant’s protection visa application form was translated for her. Her written claims can be summarised as follows:
· The applicant was born in Hamheung City, Hamgeungnamdo, North Korea on [date]. Her citizenship is North Korean, which she obtained by birth. She is not a dual citizen. She speaks, reads and writes in Korean, and she can speak in Chinese. Her ethnicity is North Korean and her religion is Christian.
· She has never been married or in a de facto relationship.
· Her father was born on [date] in China; however, his citizenship at birth was North Korean. He currently resides in North Korea.
· Her mother was born on [date] in North Korea. She has North Korean citizenship (from birth) and she currently resides in North Korea.
· The applicant’s siblings are North Korean citizens residing in North Korea: a brother and [number] sisters.
· From [year to year] the applicant attended [primary] school, and then from [year to year] she attended [secondary] school.
· From October 1995 to August 1996 she worked [for Employer 1] assisting with [specified work].
· From September 1996 until August 1997 she studied [Field 1]. From August 1997 until September 1998, she did practicum, waiting for deployment at a [workplace] in North Korea. From October 1998 until August 2003 she worked [for Employer 2] as a [teacher].
· She resided in North Korea until in October 2003 she walked across the river to China, [to] escape persecution in North Korea. From March 2004 until July 2006 she worked in China as a [teacher] in an ethnic Korean [school].
· In August 2006 she moved to [another location] in China, where she remained until April 2011. She worked as [Occupation 1] at a Korean [employer].
· She does not know how she entered Australia (ie the type of travel document or visa) although she arrived [in] May 2011. She was very sick when she arrived. The broker took her travel document.
Undated statement (submitted May 2011)
Her undated statement submitted in May 2011 provided additional information:
· Her father was [a member] of [a government] Committee and her mother worked [as an Occupation 2].
· Her mother had a radio. When a radio is purchased in North Korea, one is supposed to take it to the National Security Office and get the radio frequency sealed, but the radio brought home by her mother was not sealed. One day the applicant happened to listen to a South Korean radio program. Through listening to the South Korean radio program, she got to know bit by bit the realities of democratic South Korea.
· One day she talked about South Korea, “mainly its well-protected human rights such as freedom of speech, freedom of assembly etc”, but soon after that she ended up being summoned to the National Security Office. She was asked how often she listened to South Korean broadcasting and they started beating her. She replied that she never listened to it; she was informed that there was a witness, and she was locked away for a week. She knew that if she had confessed to listening to South Korean broadcasting, she would have been sent to a concentration camp for political prisoners.
· She could not eat and became ill after being severely tortured; she could not walk. She returned home but was warned she would be summoned again once she got better. She could not sleep for days. If she was summoned again she knew that she would not be able to resist confessing. She told her mother she would have to run away. She and her sister caught a train [in] August 2003 and arrived [near] the border, where her uncle was living. She crossed the Yalu River [in] September 2003 with a group of other women, under the guidance of a broker.
· She was taken to[City 1], then to [City 2], about two stations from[City 1], to an ethnic Korean man. She started living with him. Three months later he went overseas and she was left on her own with a nephew/niece. She lived in fear.
· One day she went to the hospital; when she came home the neighbour told her that four plainclothes police officers had been looking for her. She packed her bag and fled to the downtown area of[City 2]. She found another place to stay and spent two years working as an ethnic Korean [teacher]. She was living in constant anxiety and had to keep moving about. She got another job (with accommodation) at a [Workplace 2].
· She then came across a church and found God. She started going to church on the weekends. She met an ethnic Korean man called [Mr A] and after church they used to go to the city and enjoy conversations over a cup of tea. She told him it was very difficult for her to stay (illegally) in China; he told her to watch out all the time. He said he knew someone who travelled to Australia on business and asked what she thought about Australia. She said she did not know. He got news from his friend and said she could obtain a fake passport for [amount]RMB. She paid [amount]RMB up front. Then [in] April 2011 she and [Mr A] went to Beijing. They spent three days waiting, and then his friend turned up with a passport, ID and a plane ticket. She went to the airport [in] May 2011. She gave the [amount]RMB to the broker at the airport and they flew together to Australia. She cannot remember how she got to Australia. The reason is that she was sick all the way. They arrived in Sydney the next morning. After leaving the airport the broker took the passport, plane ticket and ID and he put her in a taxi. She was dropped in [Suburb 1].
· She cannot return to North Korea because if she goes back she shall be prosecuted for running away to China because it was true that she listened to South Korean broadcasting; it was in breach of North Korean law to cross the border without permission; she became a Christian in China and being a Christian is illegal in North Korea. She fears the death penalty and they will make her family suffer too.
· She also does not like South Korea. When she was in [City 1], in about November 2007 (she cannot recall the exact date), she approached the South Korean Embassy and asked them to send her to South Korea; but they told her to keep quiet and go away as if she was troublesome. Further, if she goes to South Korea, she is concerned about what could happen to her family in North Korea. South Korea is still the enemy and if the North Koreans find out that she went to South Korea, her family members in North Korea will end up in the concentration camp. There are many North Korean spies in South Korea. A list of North Korean defectors is sent back regularly to North Korea. People get kidnapped and killed before anybody finds out.
Further documents submitted to the Department
Submissions from the agent stated that:
· There may be some minor discrepancies in her statement provided during the processing of her application for reason of: errors in translation, misunderstandings or high levels of anxiety. It was not suggested that there were any particular errors of which they were aware. This appeared to be a general point.
· Country information was provided about the North Korean government’s human rights record.
· Reference was also made to some Refugee Review Tribunal decisions relating to applicants seeking protection from North Korea, where applications were found to be invalid because North Koreans are considered to be citizens of South Korea in that country’s constitution. The submissions noted however that there are a number of countries around the world accepting North Koreans as refugees.
· It was submitted that refugees from North Korea experience discrimination and persecution in South Korea noting for example that as at July 2010 the unemployment rate for North Korean refugees was four times higher than that of the general South Korean population. Despite the appearance of a generous South Korean government, it was asserted that there is limited training, discrimination, high unemployment rates, and the quiet discouragement of North Korean settlers.
Interview with applicant about identity and events when she arrived in Australia – 15 June 2011
On the Departmental file there are notes of an interview on 15 June 2011 with the applicant about her identity and events when she arrived in Australia:
· She obtained a passport from a broker (name unknown) in China.
· She is unable to read Chinese and does not know the name or other details on the passport, but believes it was a Chinese passport.
· She travelled to [Australia in] May 2011 from Beijing, accompanied by the broker.
· At the airport she handed the passport to an official who asked questions she did not understand. The broker answered for her and the official then stamped the passport and handed it back to her. She was taken to [Suburb 1] and left there by the broker. There were no arrangements to meet anyone, and she wandered around for three hours until a Korean-speaking woman approached her and asked if she needed accommodation. She has been staying with this person since that day.
Initial Departmental finding of invalid application – 7 November 2011
The letter from the Department dated 7 November 2011 found that the applicant had made an invalid application for a protection visa for reasons including the following:
The following information indicates that you are a national of The Democratic People’s Republic of Korea (North Korea) and The Republic of Korea (South Korea):
·Although you have not provided any documentary evidence, you have declared that you were born in North Korea, remain a national of that country, and have never held any other citizenship.
·Various provisions of South Korean law provide that North Korean citizens who were born in North Korea and have not acquired citizenship elsewhere are regarded as South Korean nationals. These laws include, but are not limited to:
-the Constitution of the Republic of Korea (the Constitution) CISNET Ref CIS 21616
- Law No 16 Nationality Act 1948 CISNET C1S21623
-Act on the Protection and Settlement Support of Residents Escaping from North Korea 1997 (The Protection and Settlement Act) CISNET C1S21619
- Immigration Control Act 1992 CISNET 21622
-The Nationality Act Case 97 Hun-Ka12 [2000] KRCC 13 (a case from the Constitutional Court of Korea).
Article 2(1) of the Constitution provides “Nationality in the Republic of Korea is prescribed by law”. Article 3 states that the “territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands”. The “peninsula” includes the area known as North Korea.
The Nationality Act case considered the Constitution and the Nationality Act provisions and stated that the Supreme Court has previously ruled that North Korea, as part of the peninsular, is subject to the sovereignty of South Korea, and therefore North Korea residency should not interfere with the acquisition of the nationality of South Korea. The court went on to state that although a person with Korean lineage had already acquired North Korean nationality according to North Korean law, they were still considered a national of South Korea at the time of the Founding Constitution on 17 July 1948.
In that case, the Minister of Reunification made a statement to the court that South Korea does not recognise North Korean nationality and thus a citizen of North Korea is considered to have South Korean nationality.
On 3 June 2011 the Federal Magistrates Court handed down judgment in the matter of SZOUY v MIAC [2011] FMCA 347. The Court found that section 91N(1) of the Act must be interpreted to mean that an application for a protection visa is invalid where an applicant has dual nationality, regardless of whether that nationality is ‘effective nationality’ or whether it allows a right to enter and reside in that country.
Your application is therefore invalid because of the application of sections 91N and 91P of the Act. These provisions prevent persons who are nationals of more than one country at the time of visa application from making a valid application for a Protection (Class XA) visa while they remain in the migration zone.
Applicant’s submissions in support of the Minister determining that s.91P does not apply
Generic submissions[3] dated 12 December 2011 were provided in support of a request that the Minister exercise public interest powers under s.91Q of the Act. It was submitted that:
· The applicant will experience persecution if sent to South Korea. North Koreans experience persecution in South Korea relating to employment, a lack of government jobs, ridicule for not being able to speak like a native, higher crime rates for North Koreans, social perceptions of North Koreans as being noisy, heavy drinkers and troublesome neighbours, viewed similarly to immigrants in a dismissive manner, insufficient police officers responsible for defectors, a lack of support, active discouragement by the South Korean government including punitive screening of North Koreans and a reduction in assistance.
· Country advice received by the Tribunal in 2009 indicated that there were large numbers of North Korean agents still operating in South Korea. Reference was made to a USA Department of State report of 2010 for North Korea, indicating that collective punishment can be imposed for families of defectors. In 2010 the North Korean government had interrogated families to ascertain the whereabouts of all members of the family register and more than 1000 people who could not properly and clearly answer questions were taken away for punishment. It was stated that if the authorities become aware of a person’s departure from the country, then their relatives can be punished, thus North Korean defectors/refugees in South Korea maintain a low profile to protect the remaining family members.
· Countries such as the United Kingdom, the US and Germany have accepted North Koreans despite the fact that they could be given protection of a third country (South Korea). This could be for political/trade reasons.
· It was suggested that they would be safer in Australia because there are fewer spies in Australia than South Korea.
[3] The submissions were generic for five of the agent’s North Korean clients.
Post Federal Court remittal
After the Federal Court ordered on 1 May 2014 that the matter to be reconsidered, the Department forwarded a pro forma letter dated 26 June 2014, acknowledging that the applicant had made a valid application for a protection visa lodged on 30 May 2011.
Lodgement of protection visa application made on behalf of the child applicant – 2 September 2014
The agent then provided a letter and forms for the child to the Department on 2 September 2014. In the Form B signed on 19 August 2014, the applicant asserted that she left China voluntarily to travel to Australia and that if the Chinese authorities had located her, they would return her to North Korea.
A Form C (Application for an applicant who wishes to submit their own claims for protection) was made for the child, signed on 19 August 2014, which included the following:
· The child was born on [date].
· His ethnicity is North Korean. His religion is Christian.
· In response to the question “Your citizenship” is written “father: unknown; mother: resident of North Korea”.
· He does not hold any other citizenship and is not a national of any other country. He has no travel documents.
· The claims made on behalf of the child are that his mother fears that both of them will be murdered by the authorities if they are sent to North Korea. North Korea persecutes its citizens/residents. His mother will be viewed as a political traitor, and they will be exterminated if returned. They will be subjected to torture and persecution prior to their deaths. The authorities will also identify their remaining relatives in North Korea and exterminate them.
A birth certificate for the child was provided (stating that the mother is the applicant, a [teacher], [age] years old, born in Hamnheung North Korea; it provided no detail of the father).
Submission about identity dated 28 October 2015
A letter was provided by the agent to the Department dated 28 October 2015, in response to the request for documentary evidence of identity, nationality or citizenship. It was stated that the applicant provided an explanation for the lack of evidence of her identity in her protection visa application form. In addition she instructed her agent that “when I left North Korea I took nothing with me that would confirm my identity. I left evidence of my identity with my uncle in North Korea. Basically, I was worried that if I got caught in China and the authorities identified me, they would send me back to North Korea.”
Submission dated 16 November 2015 to the Department
In addition to the assertion referred to in paragraph 13 above, in this letter the agent asserted that more than one officer of the Department had claimed, on a number of occasions, that this applicant and [Mr B] (the other applicant whose case was heard at the same time by the FMC and the Federal Court) know each other, and that [Mr B] is the father of the applicant’s baby. It was submitted by the agent that the only characteristic that these two applicants have in common is that they are represented by the same firm. The agent also submitted that the assumptions about the relationship are absurd, false and baseless.
Protection visa interview with the delegate, and the decision record
Interview
The applicant attended a protection visa interview on 16 November 2015. The applicant’s evidence to the delegate included the following (as set out in the delegate’s decision record provided to the Tribunal by the applicants):
· The delegate noted that the applicant has not provided any identification, but claims that she left China (because, if the Chinese authorities located her, they would return her to North Korea) [in] May 2011 using a fraudulent Chinese passport that she obtained in China, and then used to travel to Australia [in] May 2011, and after arriving in Australia she gave the ticket and passport to the broker. When the delegate explored this with the applicant, she said she did not know what airline she travelled to Australia on, she does not speak English, she arrived sometime in the morning. She suffers from motion sickness and had taken some tablets which made her sleepy; therefore she was not aware of anything else. The applicant was asked if she had any identity documents and she advised she did not. She said the only way of getting identity documents was to return to North Korea.
· The delegate noted that her son’s birth certificate does not list a father. She advised that her son’s father is [Mr C]. She does not know his immigration status; she did not ask him. He was a visitor to where she was staying in Australia.
· The delegate put to her that if she was a North Korean citizen, she would be able to reside in South Korea. When asked whether there was any reason why she could not, she said that while she was in China, she went to the South Korean Embassy and they advised her that they were not in a position to take her to South Korea.
· Further, she has family in North Korea and there are North Korean spies in South Korea, and if the North Korean authorities knew she was in South Korea, three generations of the family would be harmed.
· She became a Christian in China (Christianity is not allowed in North Korea).
The delegate asked the applicant a number of questions about North Korea (referred to further below).
Decision record
The delegate noted that during the interview the applicant had been given an opportunity to demonstrate that she was a North Korean however it was considered that she did not do so, when having regard to her claimed circumstances. The delegate was not satisfied on the evidence presented that the applicant was a North Korean citizen (nor that her claims in that regard were true).
The delegate noted that the applicant consented to a language analysis of the voice on the recording of the protection visa interview. This appeared not to have been done, as the delegate stated that, given the country information in relation to South Korea, there is no need to determine whether she is or is not North Korean through language analysis because even if the applicant was North Korean, she does not have a well-founded fear of persecution in South Korea [the applicant later provided her own reports on language analysis to the Tribunal].
The delegate considered that if both applicants were as claimed, North Korean citizens, they would have a right to enter and reside in South Korea according to an analysis of country information and the law. Reference was made to South Korean policy to offer protection and support to dislocated North Koreans and it was noted that advice from the Department of Foreign Affairs and Trade (DFAT) refers to practical assistance offered: training, finances, accommodation. The delegate was not satisfied that the applicants faced a well-founded fear of persecution in South Korea. Concerning her claim that she will face persecution and discrimination in South Korea, it was considered that the applicant does not have a high profile and while acknowledging that there is discrimination, it does not meet the legal threshold; and further, there is state protection. Concerning the claim that any North Korean who has settled in South Korea, and whose identity is provided to the North Korean government, will result in the persecution of the defector’s family in North Korea, the delegate acknowledged that there are North Korean spies in South Korea, but that the applicant’s family in North Korea are not the applicants in the case.
The Tribunal
On 16 December 2015, the agent provided to the Tribunal a copy of the decision of the Federal Court as well as a copy of the submission made to the delegate dated 16 November 2015, and a copy of the delegate’s decision record considering and refusing the application. Additional submissions have been made by the agent (before and after the hearings) which have been taken into account, including the following:
· The agent provided submissions and three expert reports on the applicant, discussed further below. All of the experts provided their contact details if further information is required by the Tribunal.
· The applicants are relying upon the judgment of the Federal Court, noting that the judge found that the applicant was held to have made a valid visa application. It was submitted that as the Federal Court declared the application to be valid, none of the criteria of s.91N of the Act can apply, and the only country that can be considered as a country of return is North Korea.
· It was also noted that the court said that neither the primary judge nor the Federal Court judge had been able to find evidence which satisfies either of them, on the balance of probabilities, that the applicant is a South Korean national, so the Tribunal should allow the application for review. It was submitted that it would be “absurd” to return the applicant as a North Korean citizen to North Korea and that the Tribunal had “no option” other than to remit the applications to the Department with a direction that the visas be granted.
· The applicants as North Koreans do not have access to South Korea (in the sense of s.36(3) of the Act) [the Tribunal does not however have to consider this argument given its findings].
· The Federal Court found that there was insufficient evidence that the applicant’s father was born in North Korea. The Tribunal is bound to accept that this was the state of the evidence at that time. It was also submitted that there must be “positive” evidence of citizenship according to her Honour’s judgment.
The Tribunal provided responses at hearing and in correspondence to the matters raised by the applicant through the agent. While the Tribunal accepts that the application was found to be valid, this does not mean that the Tribunal cannot consider evidence as to nationality. The Tribunal’s acknowledgement of application letter confirmed that in conducting a review, the Tribunal must consider the case afresh. At hearing, the Tribunal explained to the applicant that it was hearing everything afresh, and that the courts had considered there was insufficient evidence; the Tribunal would be taking and considering additional evidence.
It was submitted that the Federal Court judgment “made it clear that neither of the applicants had access to South Korea”. The Tribunal does not accept that the child applicant was considered by the Court in this regard (or at all). Concerning the applicant, the Court found, as set out above, that there was insufficient evidence to find that s.91N of the Act applied.
It has also been submitted that as the parties (the Department and the applicant) agreed on the effect of the South Korean law in the Federal Court proceedings (that if both parents were not born in North Korea, then the applicant could not be considered South Korean citizens), the Tribunal is bound by this and is not permitted to consider any further evidence in this regard. This submission would lead to the result that, despite the dearth of expert evidence noted by the courts in the first proceedings, the Tribunal would not be able to have regard to any further expert evidence, including the applicant’s own expert report provided to the Tribunal, which postdates the agreement as to the agreed state of the law (discussed further below). The Tribunal does not accept this submission; however, it does not have to make a finding in this regard, as it does not accept that the applicant or her child is a North Korean citizen.
Further, it was noted that there was a suggestion by the Tribunal that the applicant may have Chinese nationality; in response it was submitted that there is no evidence that the applicant is entitled to enter/access China and that it would be a “waste of resources” to consider this. The Tribunal responded by noting its concern with the submissions that the Tribunal should not consider the issue of possible Chinese nationality, especially noting that the applicant contends that she has a father born in China. If this was the case, it would be reasonable to explore whether or not she is a Chinese national. This is discussed further below.
The child
It was argued in the submissions dated 19 October 2017 that the child could not be South Korean on the basis of the mother being a North Korean born in North Korea. The birth certificate of the child was produced and it was stated that the child is a member of the applicant’s family unit. The Tribunal accepts that the child is a member of the family unit of the applicant.
It was suggested that the alternative was that the child would be presumed to be an Australian citizen as he was born in Australia. On the evidence before it, the Tribunal does not accept this suggestion. The Tribunal considered the applicant’s evidence about the father of the child to be changing and evasive, as discussed further below. In brief, after telling the Tribunal that she thought he was South Korean, the applicant’s evidence then became vaguer and she said he “could be from here”. She gave no reason for this other than she said the father of the child was residing in Australia, studying, and that he could speak English. The Tribunal does not accept on the evidence before it that the father of the child is an Australian citizen. It is not suggested that the applicant, his mother, is an Australian citizen. Further, although the child was born in Australia, this does not mean he is an Australian citizen by virtue of his birth in this country.[4]
[4] Children born in Australia automatically acquire Australian citizenship if at least one parent is an Australian citizen or permanent resident at the time of the child’s birth: >
Some of the applicant’s evidence at hearing was as follows:
· When asked what her citizenship is, she said she thinks that she is North Korean. She was born in North Korea. When asked whether her family ever told her if she was a citizen of any other country, she said she doesn’t think she ever heard anything.
· The father of the child, [Mr C], looked over [age] years old but she did not know his age. They had a relationship “maybe for about 2 months” but during that time she thinks she only met him three times. She said she did not know his basis for being in Australia; he said he was studying, but she did not know what he was studying.
· She claimed that she did not ask him about his status because of her own status and he did not know she was from North Korea. When asked his nationality, she said words to the effect of “he could speak Korean very well so I guess he is Korean, but South Korean; he could also speak English very well”.
· Concerning Christianity, she said that she had been involved in both China and Australia; she did not make any claims that she did (or would) face any harm in China in relation to Christianity.
The Tribunal took evidence about both applicants over the course of two hearings. After the first hearing, a s.424A letter was sent; a request for further time was made and the Tribunal granted this request. Thereafter, a response was received. The Tribunal put to the applicant at the second hearing that it had credibility concerns; it was difficult to accept her evidence; and it may not be satisfied as to the claims of her nationality being North Korean, yet it notes that this is the only nationality she claims.
The Tribunal asked the applicant at the second hearing if there was anything she wanted to discuss arising from the Tribunal’s post first hearing letter, or anything else that had not been discussed. She said her father was born in China.
It was submitted by the agent that the objective evidence overwhelmingly indicates that the applicant is from North Korea and that she will not be recognised or given protection by South Korea.
At the end of the second hearing, before the Tribunal had finished, the agent said that she wanted the Tribunal to stop, and to take the applicant away from the hearing. The Tribunal said that if the applicant was upset, it would offer another break. The agent did not accept this. The Tribunal noted that there were further matters it had to put pursuant to s.425 of the Act. The applicant did not ask for a postponement or adjournment of the hearing to another day. Although there was no requirement for the Tribunal to do so, it offered to include in its post hearing s.424A letter outstanding s.425 issues. The Tribunal asked the applicant whether she wanted to say anything further before she left, and she said she is from North Korea. The agent interrupted and said she does not want the applicant to say anything more. The Tribunal sent a post second hearing letter indicating s.425 concerns that would have ordinarily been discussed at a hearing; and additional s.424A information, with a deadline for response for 7 June 2018. A request for extension of time was made, stating that they were unable to meet the stated deadline due to “lack of procurement of required information by the time specified” and they “required” an additional month to provide a response to the Tribunal’s letter dated 24 May 2018. On 4 June 2018 the Tribunal responded by noting that the applicant had left the hearing; these matters could have been dealt with if the applicant had remained; it noted that they had not provided any real explanation as to why further time (which would total six weeks from the date of the Tribunal’s letter) was needed. However, it agreed to grant a two-week extension of time until 18 June 2018.
Although there was further correspondence entered into, the applicants did not provide a substantive response to the Tribunal’s concerns and the information as set out in the post second hearing letter, and they did not suggest that they wanted to attend a further hearing.
Further relevant evidence and information is referred to below.
FINDINGS AND REASONS
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 the 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.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
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 & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70.)
Bearing the above in mind, submissions were made by the agent that it is an error for the Tribunal to consider credibility; that it was an error to take into account the evidence given by the applicant under oath before the FMC; that “whether or not [this person] is to be believed is beyond the jurisdiction of this Tribunal”; and that “it is not open to this Tribunal to contradict the two courts which have examined these facts”. The Tribunal responded to this submission in its letter dated 27 March 2018, noting that there was no binding finding in the Federal Court judgment as to the credibility (or nationality) of the applicant; that it is for the Tribunal to assess and weigh the evidence, including any concerns of credibility, and to come to its own findings, in accordance with the law, on whether or not the applicants have a well-founded fear of persecution or face a real risk of significant harm; and whether or not they are members of the family unit of such a person, and the relevant nationality and country of reference against which such matters are to be assessed.
In relation to nationality, the Tribunal stated as follows:
The Tribunal notes that the Federal Court remitted this matter back to the Department for consideration in accordance with the law and on the basis that there had been insufficient evidence to make a finding that [the applicant] was a dual national of South Korea and North Korea. The Tribunal does not accept that the effect of the orders was a positive finding of nationality by the Federal Court. There was no finding that [the applicant] was a national of any particular country; only that the evidence available to the delegate and the Federal Magistrate was insufficient to support a finding that she was a South Korean national. The Federal Court indicated that there was a dearth of evidence as to facts and the operation of law in the relevant countries.
The Tribunal considers that it is not prevented, after the Department has reconsidered the issue of nationality, from itself considering evidence in relation to the issue of nationality; the authorities suggest that it is necessary for the Tribunal to determine whether [the applicant] is of the nationality claimed. In finding the country of nationality, the Tribunal must take into account all available evidence; it is not estopped from considering further evidence (and the Tribunal notes for example that before the Federal Court, there was expert opinion offered by the Minister which was not taken into account as it had not been tendered in the (then) Federal Magistrate’s Court; the Tribunal does not consider that it cannot take this, or any other relevant evidence, into account in determining nationality of both applicants. While the Tribunal must follow the Federal Court’s decision, and ensure there is sufficient evidence/ reasoning to ground a finding as to nationality, the Tribunal does not otherwise accept your submissions that the Tribunal’s task is restricted concerning its assessment of nationality of [the applicant].
The Tribunal must consider whether it accepts that [the applicant] is a North Korean national. It has not made up its mind in this respect, although due to credibility concerns it has some doubt that she may be a North Korean national as claimed. If the Tribunal does accept that she is a North Korean national, then it must also consider other matters relevant to nationality. If it was accepted that [the applicant] is a North Korean national, then the Tribunal would have regard to the available evidence relating to the issue of possible South Korean nationality. The content and operation of South Korean nationality law must be considered in the circumstances of each case, including circumstances relating to the places of birth of the parents where relevant. If the possibility of dual nationality arises on the evidence before it, the Tribunal would have to determine the issue for itself on the basis of the evidence before it.
Further, the Tribunal noted that the child was not under consideration in the judicial review proceedings, as he was born after the Department was directed to reconsider the matter by the Federal Court. It is claimed that the child’s mother is North Korean, and, as discussed further below, the initial claim by the applicant in evidence was that the father was probably South Korean. The expert opinions offered by the Minister were obtained by the Tribunal and forwarded to the applicant. The Tribunal referred to the expert report [dated] [in] April 2013 which notes that “as long as one of the parents is a national of South Korea, the child will, by birth, acquire the nationality of South Korea without regard to his or her place of birth”.[5] Further, according to the second expert report [dated] [in] April 2013, “both South Korea and North Korea apply the principle of jus sanguinis in determining a person’s nationality. As such, it is not necessary for both parents to be North Korean citizens and as long as one of the parents is a North Korean citizen, the child will, by birth, acquire the North Korean citizenship (and thus, by birth, acquire South Korean nationality)”.[6] These reports thus indicate that if the applicant’s claims were to be accepted, the child would have dual nationality (North Korean nationality through the mother and South Korean nationality through his father) with the legal implications that arise. However, as the Tribunal has not accepted the applicant is a truthful witness about her background or that relating to the birth of her son, the Tribunal does not make such a finding.
[5] Expert report [dated] [in] April 2013, pages 2–3.
[6] Expert report [dated] [in] April 2013, pages 2, 4.
The Tribunal notes that the applicant also offered further expert evidence as to nationality, discussed below, and further submissions concerning dual nationality. The Tribunal must follow the Federal Court’s decision, and ensure there is sufficient evidence/ reasoning to ground a finding as to nationality. However, the Tribunal did not otherwise accept the submissions that the Tribunal’s task is restricted concerning its assessment of the nationality of the applicants.
Credibility concerns
In relation to the credibility of the applicant, the Tribunal is not satisfied that the applicant is a credible witness. The Tribunal considers that, on their own, many of the concerns raised about the applicant’s credibility would not be a reason for affirming the decision under review, but that even if some were omitted from consideration, there is still a significant cumulative basis for finding that the applicant is not a truthful witness in relation to her claims or claimed background or the father of her child. The Tribunal has concerns with her inconsistent, not credible and/or changing evidence in relation to family and background details, past events of persecution, and future fears.
Inconsistent evidence given about the applicant’s parents
The applicant gave inconsistent evidence about her parents’ place of birth at different times in the proceedings.
Firstly, in this regard, she told the Tribunal at the first hearing precise details about her father. She said that when she was born, he was [a] member of [a government] commission; he assigned [specific occupations to workplaces]. When asked when he was born, she said he was born on [date]. When asked where he was born, she gave a precise location in China (the interpreter said it was a “Korean sounding” address: [Location 1], in China).
When asked how she knew this, she said at school sometimes they had to write down the location of her parents’ birthplaces. People commented on the fact that her father was born in China, including teachers. She had experienced discrimination as a child because her father was born in China and this occurred for about four years. When asked whether she was saying that her father was definitely Chinese, she said this is correct.
The Tribunal noted however that this appeared inconsistent with her application form, where she claimed that he was a North Korean citizen at birth. In response, she said that was wrong, that was written incorrectly, he was born in China. He came from China and all of his siblings are in China. When asked, she said that as far as she knows there are [number] siblings in China (she specified the provinces where they lived). When asked how she knew this about the siblings, she responded that this was because her father talked about this.
Her evidence to the Tribunal about where her father was born, however, was inconsistent with the evidence she gave to the FMC on 30 October 2012. According to the transcript:
[Mr D] [the applicant’s representative]: now, could the witness be shown page 51. Do you know where your parents were born?
The interpreter: they are in North Korea, but I’m not quite sure whether they were born.
[Mr D]: you do not know where they were born?
The interpreter: I have heard that my father was born in China, but my mum is in North Korea, but I wasn’t sure where she was born.
[Mr D]: so can we confirm that, you’re not sure?
The interpreter: yes, I just heard.
At the first hearing, the Tribunal put to the applicant its concern that, if the detail she provided about her father’s precise place of birth at the Tribunal hearing was true, then she would not have said to the FMC that she was not quite sure where he was born. In response, the applicant said that she had told the FMC where her father was born.
The Tribunal put to the applicant that it was reading from the transcript, and the transcript did not record that she had said that her father had been born in [Location 1]. The applicant then said she “thinks” that she said that, and since she was young she has been very well aware of where father was born. The Tribunal put to her that if this was the case, it would have thought she would have told the FMC this when giving her evidence. She responded that she thinks that she did, and she knows very well where her father was born.
The relevant information was put to the applicant after the first hearing pursuant to s.424A of the Act. She responded that she had said that her father was/is a North Korean citizen at birth because that is where he lived. The Tribunal does not find this to be a persuasive explanation for saying to the FMC that she had “heard” that he was born in China but she was unsure where he was born, given her evidence to the Tribunal that she had known ever since she was a child that he was Chinese at birth, that he was born at a precise, known location in China, and she had suffered discrimination at school for a long period because her father was Chinese. The Tribunal considers that this changing evidence undermines the applicant’s credibility and her claims about where her father was born.
Further, the Tribunal was also concerned with the inconsistency in the applicant’s application forms about her father’s place of birth. As noted above, she had claimed in her forms that her father was a North Korean citizen by birth. Elsewhere in the form however she claimed that he had been born in China. As noted above, when the Tribunal put to the applicant at the first hearing that she had claimed that her father was a North Korean citizen by birth, she had responded that he was born in China. The Tribunal put to the applicant that if this was the case, it did not make sense that she claimed in her form that he was a North Korean citizen at birth. She said that she thinks that is just a mistake in the document and she has never said that and she does not know English and she only knows the North Korean language. The Tribunal noted that, according to the form, her application form had been translated for her, using an interpreter (and she was legally represented). In response she said that it was just incorrectly stated, he was born in China so he could not have been born in North Korea.
The s.424A response also suggested that the reference in the application form to the applicant’s father being a North Korean citizen by birth was an error that the agent did not pick up. It was stated to be the interpreter’s “fault” (although it is not said that the applicant never said this to the interpreter). The Tribunal accepts that mistakes can be made, but having regard to the contradictory assertion made by the applicant below, it is not prepared to accept that the different evidence provided by the applicant was a mistake as claimed.
Further, the Tribunal was concerned with the assertion by the applicant in her oral evidence to the Tribunal and her written s.424A response that the claim in the application form that the applicant’s father was a North Korean citizen at birth was an error. This is because her explanation is inconsistent with her evidence at the FMC:
[Mr E, the respondent's representative]: In your application form you said that your father had North Korean citizenship by birth, why did you say that?
The interpreter: I wrote it that way hoping that Australian government would help me if I write it that way.
That evidence indicates that, given her claim to the Tribunal that she has always known her father was Chinese, she intentionally, falsely, claimed that her father was a North Korean citizen at birth in her application form in order to obtain a beneficial immigration outcome. The Tribunal put its concern at the first hearing with her inconsistent reasons for claiming that her father was a North Korean citizen by birth. In response, she said it is genuine that her father was born in China. The Tribunal did not consider this to be a persuasive explanation for her inconsistent evidence. Relevant information was also put in the s.424A letter and she did not respond to this other than to assert that her claim that her father was a North Korean citizen at birth was an error; she again did not offer an explanation for her inconsistent reasons for claiming that her father was a North Korean citizen at birth, nor in particular why she told the FMC that she had made (what she claimed was) false claims about her father’s citizenship at birth. The Tribunal considers that these matters undermine her credibility and her claims about the birthplace and provenance of her father.
Further, the Tribunal had concerns with the applicant’s claims about her fears while living for eight years in China, including that she would be deported back to North Korea as illegal, and given her claim that her father is Chinese. The Tribunal put to the applicant that it was her claim that her father is Chinese; and that she could have been entitled to Chinese citizenship. The Tribunal noted that the applicant is educated as a teacher, and was very resourceful while living in China: she managed to survive despite the Chinese police being after her, she managed to change addresses, she managed to find and maintain work in [different workplaces], she obtained help from church, she managed to get advice about attending the South Korean Embassy from [employers], she managed to get help from a person who could help her to obtain a fraudulent passport and successfully pass through airport security. Further, it was her evidence that she had relatives (on her father’s side) who lived in China.
Given her significant connections, the Tribunal asked why she did not make use of her various sources of assistance over these eight years to make any enquiries as to whether she could be registered as a Chinese citizen through having a Chinese father. The Tribunal put to her that it would have been reasonable for her to have thought about this option, during her eight years in China, and considering her contacts and resourcefulness, she could have made efforts to ascertain whether she was entitled to Chinese citizenship. In response, the applicant said that she had not thought about this because she was born in North Korea. The Tribunal considered it to be highly unlikely that she would not have turned her mind to the possibility of making enquiries about whether she had any rights based on her father being Chinese, given her claimed difficult circumstances and her resourcefulness in finding people to assist her (and her claim that she had relatives of her father who were living in China). The Tribunal considers that this undermines her credibility and claims.
The Tribunal had a further concern when she then changed her evidence from saying she had not thought about this, and it had not occurred to her at all, to saying that, anyway, the Chinese authorities do not give citizenship to persons born in North Korea. The Tribunal put to her that this indicated that this assertion indicates that she had thought about it; further, if this was her view, she would have told the Tribunal this when first asked. In response she said it is her opinion she would not be given citizenship. The Tribunal is not satisfied that this explains her changing evidence, and her failure to make enquiries about any claim to Chinese citizenship though her father, given her resources and her desire to vastly improve her dire situation over an eight year period.
The Tribunal was concerned that the applicant gave inconsistent and not credible evidence concerning her father being born in China and whether or not she had considered any rights this may have given her. The Tribunal considers that the above undermines her credibility and claims.
Secondly, the Tribunal also had concerns in relation to the claims about the applicant’s mother. The applicant told the Tribunal at the first hearing that her mother was born in Haesan City, Yangkang Province, in North Korea. This indicated that the applicant was aware of a precise location where her mother was born.
This however was also inconsistent with her evidence to the FMC, as noted above, where she claimed that although her mother is (currently) in North Korea, she was not sure about where her mother was born. Then when asked why, if she was unsure as to where her mother was born, she had written in her application form that her mother was born in North Korea, she indicated that she did not have precise knowledge of where her mother was born but made an assumption because she lived in North Korea:
[Mr D]: … Why did you write that your mother was born in North Korea?
The interpreter: Just because when I was born she was in North Korea so I wrote it that way here.
The Tribunal in its s.424A letter put its concern with this inconsistent evidence about her mother’s place of birth; the applicant did not in her s.424A response offer a clear reason for the inconsistency (she just repeated that she had claimed that her mother was/is a North Korean citizen because that is where she lived). The Tribunal does not consider that she has satisfactorily explained the difference in evidence between being unsure about where her mother was born, to stating that it was at a precise location in a specific country.
Thirdly, the Tribunal was concerned with the applicant’s inability to explain matters from her statement.
Given the applicant’s claim in her statement that it was her knowledge of South Korea’s human rights and democracy, which she discussed with others, that led to her being detained and tortured by the North Korean authorities, the Tribunal asked the applicant at the second hearing what she knows about South Korean human rights. There was silence and then she said “About the human rights in South Korea, I don’t know how to understand”.[7] The Tribunal then asked whether she knows anything about South Korea and human rights and she was again silent. She then said “This is all of a sudden, so I can’t think of anything”.
[7] All quotes are words to the effect of what the applicant said.
The Tribunal put to her that it was in her statement that she had claimed “One day she talked about South Korea and its well-protected human rights”. She responded by saying “South Korea? Well-protected human rights?” She was again silent, and then she said that she can’t think of anything right now, if anything comes up in her mind, she will tell the Tribunal later.
The Tribunal considers that her inability to recall these matters or to explain anything about South Korean human rights is inconsistent with her claim in her statement that she had listened to a South Korean radio program and got to know, bit by bit, the realities of democratic South Korea; one day she talked about South Korea (mainly South Korea’s well-protected human rights such as freedom of speech, freedom of assembly, etc), which led to her interrogation by the National Security Office. The Tribunal considers this undermines her credibility and claims that she was in North Korea, listening to South Korean broadcasting, and was detained and tortured and had to escape North Korea, for those reasons.
The Tribunal’s concerns were heightened because it then asked about the radio and the applicant said “My mum has bought a radio from her company and with that I have heard there is freedom to protest and a freedom of media and I have learned those”. The Tribunal put to her that it had previously asked her about human rights in South Korea and she was unable to explain these, however as soon as the Tribunal mentioned the radio, she was able to recall these rights. She responded that she was thinking “what do human rights mean?” and she has not been to South Korea, and she heard the broadcast and that is why she answered like she did. She then claimed that she didn’t know the meaning of the words “human rights”. The Tribunal has considered this explanation but does not find it persuasive, noting that she had earlier said that she could not think of anything at that time, but if it came to her mind she would tell the Tribunal later; this does not indicate that she did not understand what had been asked of her, nor that she did not understand what human rights were. Further, her statement was translated by an accredited interpreter, and specifically used the words “human rights”, and in it, the applicant claimed to know enough about South Korean human rights such that she could talk about these with other people. The Tribunal considers this undermines her credibility and claims.
The Tribunal was also concerned that when given the opportunity to explain what she had learned (and subsequently discussed) about South Korea’s human rights, her ability to do this appeared to be mostly limited to repeating the words in her statement. The Tribunal had then asked her to explain what she had learned about South Korea’s human rights from listening to the radio and all she could say to the Tribunal is that you can say things freely; if you say bad things in North Korea you get killed. When asked what else she learned from listening to the South Korean radio she said “there is a lot of freedom”. When asked what she meant, she said freedom to say things. The Tribunal noted that she was repeating herself and asked what else she learned and she said you can go out and protest but you can’t in North Korea. When asked if she could tell the Tribunal anything else about South Korea’s human rights or democracy she had learned from the radio, she said she could not say anything else. The Tribunal put to her that her evidence appeared inconsistent with the claims in her statement and suggested that if she had learned about different human rights and democratic values from the radio, it would think she would be able to explain what she had learned. In response she said the frequency was not too good and that she had also learned about these things from her mother. When the Tribunal asked what else she knew about South Korea, she said there is freedom to work. The Tribunal has considered her explanations but does not find them persuasive. The Tribunal considers that if she had learned about South Korea’s democratic realities over a period of time as claimed, as well as about “South Korea’s well-protected human rights”, she would have been able to say more about these matters than her limited responses which seemed to be sourced mostly from the few sentences in her statement. The Tribunal considers that her evidence undermines her claim that she obtained knowledge about these matters, discussed these matters with others, and was then detained and tortured because of this.
Fourthly, the Tribunal was concerned that the applicant provided evasive, inconsistent and not credible evidence at the second hearing about her claims about approaching the South Korean Embassy when she was in China (given her claim that when she was in North Korea, she had heard positive things about South Korea, and that the whole time she was in China she was illegally present and fearful she would be deported back to North Korea).
The Tribunal put to the applicant that it appeared, by the time she left North Korea, that she believed that South Korea was a good place to be (having listened to the broadcasts and her parents telling her about equal work rights). She said “yes, in a way”. The Tribunal noted that in China, she had to hide herself from the police (and she was living in “constant anxiety” as set out in her statement). The Tribunal put to her that it did not understand why she did not go straight away to the South Korean Embassy. She said that she had been sold to someone. The Tribunal noted however that she had managed to escape. The Tribunal asked how long it took her to escape and she did not answer. Instead she said that she also heard that there are many North Korean spies in South Korea, so “what would I have done in South Korea?” The Tribunal asked if she heard this early on when she arrived in China and she said yes.
The Tribunal asked her on a number of occasions to give an approximate date of when she became aware that there were North Korean spies in South Korea such that it would not be worthwhile going there; she said that she could not. The Tribunal was concerned that she was being evasive. It was only after the Tribunal put to her that it was difficult to accept, given her circumstances (she is aware from the broadcasts and her parents that South Korea is a place of freedom and democracy, whereas when she is in China, she is illegally present, owned by someone, then after escaping she is still forced to hide), that she had no idea when she found out that South Korea was not an option open to her because of the spies, that she finally answered. She said that she thinks she heard in 2006 it was a bad idea to go to South Korea. Further, if she gets caught trying to go there she would be prosecuted.
The Tribunal does not consider that the applicant provided a plausible explanation for failing to make any enquiries about or make any attempts to go to South Korea or the South Korean Embassy in China before 2006 (three years after she arrived in China), given her evidence that before she arrived in China, she had formed a positive view of the freedoms of South Korea through the broadcasts and her parents; given her evidence at the delegate’s interview that the South Korean broadcasts invited North Koreans to come live there freely”.[8] The Tribunal considers that this undermines her credibility and claims that she was living in China in fear as a North Korean in hiding, who nevertheless established numerous contacts and received assistance in numerous ways.
[8] Delegate’s decision record provided to the Tribunal by the applicant, page 8.
The Tribunal was further concerned because the applicant’s claim that she realised in 2006 that it would be dangerous to go to South Korea or its Embassy in China appeared inconsistent with the claim in her statement that in November 2007, she voluntarily approached the South Korean Embassy in China to ask them to take her to South Korea. The Tribunal put this to the applicant. She said that [her employer] was South Korean and he told her to go to the Embassy and that South Korea was a good place. Given the applicant had already had a number of years to go to the Embassy, but failed to do so, even before she thought it was dangerous to do so, the Tribunal is not prepared to accept this explanation.
The Tribunal considers that her inconsistent evidence about her positive view of South Korea, while failing to make enquiries about going there and failing to approach the South Korean Embassy in China for many years, as well as her late attempt to approach the Embassy at a time when she considered it to be dangerous, undermines her credibility and her claims that she was a North Korean citizen who had been living illegally and in fear in China.
Fifthly, the Tribunal was concerned that the applicant gave changing and inconsistent evidence about her circumstances when she arrived in China. For example:
· She claimed she had been “purchased” by a man to live with him. He did not want her to escape so she was not allowed to work. She then claimed that she only lived with him for three months; he left in January/February 2004. She was still not free because his brother and his brother’s wife kept her captive and would not let her leave. She said that her Chinese cousin came to visit her in April 2004 and asked her to come with her, but that she was prevented from leaving with her cousin. However, she later claimed that she had started working in a [school] in March 2004, which was before her cousin came to visit her, which indicated that she was not kept captive at the house, and was allowed to go out to work. If she was allowed to travel to and from work, it would appear that she could have arranged to escape with her cousin, who she said stayed for a few days.
· In her statement, she claimed that it was after she escaped from the family of the man who purchased her, that she then worked for two years as a [teacher]. However, in her evidence to the Tribunal, she said that she worked at [a school] for two years and then she escaped from the family of the man who purchased her. These versions were significantly different.
The Tribunal put these concerns to the applicant in the post second hearing letter dated 24 May 2018 noting that they were concerns which the Tribunal had not had an opportunity to put to the applicant as she had left the second hearing. The applicant did not provide a specific response to these concerns. The Tribunal considers that the above inconsistencies undermine her claim that she was a North Korean escapee who had been purchased and was held captive in China.
There were further concerns with this claim that the Tribunal was able to put to the applicant at hearing. The Tribunal said that it was difficult to understand that the family would let her work at a [school], given the potential for escape. When the Tribunal asked why they would let her work at a [school], she said that at the time she was taking care of their child and while she was looking after him the head of the [school] asked her to come and work there as they knew that she had worked in North Korea as a teacher. The Tribunal repeated that it did not seem to make sense that she was a hostage and yet she was then allowed to work outside the home. In response she said that maybe they did not like her to work but it was a good opportunity for her to earn money. The Tribunal asked what she did with her money and she said that she saved her money. The Tribunal put to her that an ability to go to work as well as to keep and save the income she earned appeared inconsistent with her evidence that she was a captive who had been purchased and was a hostage for two years until she escaped. She then said that the money was used for her living expenses. This was inconsistent with her initial claim that she saved her earnings. The Tribunal considers that her evidence undermines her claim that she was a North Korean escapee who had been purchased and was held captive in China.
The applicant gave changing evidence about why she left the family. She told the Tribunal that she claimed that she left the family in June 2006 and went to [another location], about 1.5 hours away by bus or train, she is not sure of distance. When the Tribunal asked why she left, initially she referred to the [school], saying that she had been working for two years and she felt threatened as many people found out that she came from North Korea, and so if someone reported her, she would be in trouble. However, when the Tribunal put to the applicant that it was hard to understand how the family would just let her go, she then changed her evidence and said that she left because the authorities came to the house and she wasn’t there, she was at a Chinese herbalist place because she had been beaten up a lot. She went to the herbalist by herself. The Tribunal considers that her changing evidence about why she left the family undermines her credibility.
The Tribunal was also concerned with the applicant’s evidence about her Chinese relatives. According to her evidence, the applicant had been contacted and visited by her relatives when she was a captive. This was because she had brought a letter with her from North Korea, and had sent it to them when she arrived in China and had thereafter received a phone call from her aunt in China, and then the visit in person from her cousin. However when it was put to her that she could have approached her Chinese relatives for assistance later, when she had escaped the family, she claimed that she was unable to find any of her Chinese family members later, despite knowing the area where they lived and having had previous contact with them because she misplaced the address from the letter and her cousin did not leave her address with the applicant. While these explanations are possible, given the concerns with her inconsistent evidence about her inability to escape with her Chinese cousin (and noting her resourcefulness in China), the Tribunal is not prepared to accept that the applicant was unable to locate her Chinese relatives again and seek solace/safety with them (or make enquiries through them as to whether she too could be lawfully present in China (given she had a Chinese father)). The Tribunal considers this evidence undermines her credibility.
209. The Tribunal also finds that the applicant has not been truthful about what she has been doing in Australia and it does not accept that she has not worked.
Possible Chinese nationality
210. At the second hearing, the Tribunal put to the applicant that it may not be satisfied as to her claims about her nationality as North Korean. It was concerned that she could be a Chinese citizen of ethnic Korean background. The Tribunal put to the applicant if this was the case, the Tribunal has considered the DFAT Report and it would appear that she would return with her child to China (who would appear to be a Chinese citizen born to a Chinese parent overseas having regard to Article 5 of the Nationality Law);[24] the DFAT Report did not indicate that there would be problems upon return for ethnic Korean Chinese citizens, and although the report indicates that, upon return, persons may be asked questions about what they were doing in Australia, it would appear plausible that the applicant would say that she had been working (the Tribunal considers it difficult to accept that she has not worked at all in Australia) and trying to raise her child here. The applicant did not agree.
[24] Article 5: Any person born abroad whose parents are both Chinese nationals and one of whose parents is a Chinese national shall have Chinese nationality. But a person whose parents are both Chinese nationals and have both settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who has acquired foreign nationality at birth shall not have Chinese nationality. The Tribunal is not satisfied that, even if the applicant is a Chinese national of Korean ethnicity, she faces a real chance of serious harm or a real risk of significant harm if she was returned (with the second applicant) to China. However, the applicant has denied that she is a Chinese citizen of Korean ethnicity. Although the evidence may seem to point to the applicant possibly being a Chinese citizen of Korean ethnicity, the Tribunal is unable to make a positive finding in this regard.
212. The Tribunal has found a lack of credible information as to the applicant’s nationality.
213. Therefore, 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.
214. 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 does not accept that the applicant is a national of North Korea or a habitual resident of North Korea. Therefore the Tribunal does not accept that North Korea is the applicant’s “receiving country” for the purposes of s.36(2)(aa). The applicant has only made claims in relation to North Korea (by way of nationality). Therefore the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that she will suffer significant harm. Therefore the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
The child
215. The Tribunal had already raised at the first hearing that if the applicant was North Korean, and the child had a father who was South Korean (or otherwise) then he may be considered a dual national and his application invalid. After the first hearing, the Tribunal wrote to the applicants as follows:
Concerning the [child], your submissions appear to suggest that the only claim made by the [child] is as a member of the family unit of the [applicant], and not on the basis of his own claims. This is not however how his claims have been presented; an application was made on his behalf, making claims as a primary applicant, as well as being a member of his mother’s family unit. As an applicant, his nationality must also be established, and it was put to the applicants at hearing, that the argument made by the [applicant] claiming that she is not a dual national (that her father was not born on the Korean peninsula and was thus not a Korean national and thus she is not a South Korean national) does not apply to her child, as the [applicant] asserted at hearing [initially] that her child’s father is a South Korean national.
The Minister sought, unsuccessfully, to tender expert opinions on the South Korean nationality law in the Federal Court proceedings. The Tribunal is not prevented from taking into account these opinions, which it received after the first hearing, copies of which are attached. The expert report [dated] [in] April 2013 notes that “as long as one of the parents is a national of South Korea, the child will, by birth, acquire the nationality of South Korea without regard to his or her place of birth”.
Thus, if the assertion that the [child]’s father is a South Korean national is accepted, it would appear that the [child] may have South Korean nationality. The second expert report [dated] [in] April 2013 provides further information: “both South Korea and North Korea apply the principle of jus sanguinis in determining a person’s nationality. As such, it is not necessary for both parents to be North Korean citizens and as long as one of the parents is a North Korean citizen, the child will, by birth, acquire the North Korean citizenship (and thus, by birth, acquire South Korean nationality).
These expert reports thus indicates that if the child’s father is South Korean and if the child’s mother is North Korean, then the child is both a North Korean national and a South Korean national. Thus, the child may be a dual national. If this was the case, his own claims could not be considered by the Tribunal as a result of s91P of the Migration Act, however any claims as a member of the same family unit as someone owed protection would then have to be considered by the Tribunal.
216. As the Tribunal however does not accept that the applicant is a North Korean national, the Tribunal does not need to make findings in this regard. The Tribunal noted that it was asserted that the child must be stateless. The Tribunal put to the applicant after the second hearing (noting that she left the second hearing) that there was conflicting evidence about the paternity/nationality of the child; it may not believe that she is unaware of the nationality or whereabouts of the child’s father, and it may not accept the submission that the child is stateless (without a nationality). This was not responded to specifically.
217. The Tribunal is not satisfied that the applicant has been truthful about the child’s paternity. The only finding that the Tribunal is prepared to make is that the child is the child of the applicant. This does not however assist in determining the child’s nationality. The Tribunal does not accept that he is stateless. The Tribunal has found a lack of credible information as to the child’s nationality. For the same reasons set out above, the Tribunal is not satisfied that the child is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the child does not satisfy the criterion set out in s.36(2)(a) of the Act.
218. Having concluded that the child 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 does not accept that the child is a national of North Korea or a habitual resident of North Korea. Therefore the Tribunal does not accept that North Korea is the child’s “receiving country” for the purposes of s.36(2)(aa). The child has only made claims in relation to North Korea (by way of nationality). Therefore the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the child being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm. Therefore the Tribunal is not satisfied that the child is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
219. There is no suggestion that either applicant satisfies s.36(2) of the Act 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 applicants do not satisfy the criterion in s.36(2).
DECISION
220. The Tribunal affirms the decision not to grant the applicants protection visas.
Christine Cody
Member
ANNEXURE A
RELEVANT LAW
221. 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, the applicant 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.
Refugee criterion
222. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
223. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee 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.
224. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
225. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
226. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
227. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
228. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
229. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
230. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
231. 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 a protection visa if he 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
232. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
233. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where 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; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
234. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.
Member of the same family unit
235. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include parent and child.
ANNEXURE B
‘What are the “Ten Principles”?’: “Ten Principles for the Establishment of the One-Ideology System” are regulations that govern the everyday lives of the North Korean people. They were officially announced by Kim Jong Il in 1974. The original Ten Principles, to which the name “General Kim Jong Il” has now been added, are as follows:
1. We must give our all in the struggle to unify the entire society with the revolutionary ideology of Great Leader Kim Il Sung.
2. We must honor Great Leader comrade Kim Il Sung with all our loyalty.
3. We must make absolute the authority of Great Leader comrade Kim Il Sung.
4. We must make Great Leader comrade Kim Il Sung’s revolutionary ideology our faith and make his instructions our creed.
5. We must adhere strictly to the principle of unconditional obedience in carrying out the Great Leader comrade Kim Il Sung's instructions.
6. We must strengthen the entire Party's ideology and willpower and revolutionary unity, centering on Great Leader comrade Kim Il Sung.
7. We must learn from Great Leader comrade Kim Il Sung and adopt the communist look, revolutionary work methods and people-oriented work style.
8. We must value the political life we were given by Great Leader comrade Kim Il Sung, and loyally repay his great political trust and thoughtfulness with heightened political awareness and skill.
9. We must establish strong organizational regulations so that the entire Party, nation and military move as one under the one and only leadership of Great Leader comrade Kim Il Sung.
10. We must pass down the great achievement of the revolution by Great Leader comrade Kim Il Sung from generation to generation, inheriting and completing it to the end.
The ten main principles and 65 sub-clauses of the Ten Principles describe in detail how to go about establishing the one-ideology system. All North Koreans have to memorize them. Not only that, they have to put them into practice; during regular evaluation meetings, people criticize themselves on the basis of whether or not they have been living up to the Ten Principles in their everyday lives.For example, Clause 8.5 declares, “The people shall participate actively in evaluation meetings every two days and fortnightly, wherein the Great Leader’s instructions and Party policies should be used as the yardstick by which to set high political and ideological standards for the evaluation of their work and lives, carrying out ideological struggles through criticism, and forging revolutionary ideals and continuously improving themselves through ideological struggles.”
Paragraph 3.41: Estimates of numbers of unregistered Protestants in China vary from around 30 million to over 60 million. Unregistered Protestant churches risk adverse treatment by authorities due to their illegal status. Adverse treatment can include raids and destruction of church property, pressure to join or report to government-sanctioned religious organisations and, on occasion, violence and criminal sanction, particularly in response to land disputes with local authorities.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Appeal
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Standing
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