1517016 (Refugee) - [2018] AATA 5367

1517016 (Refugee) [2018] AATA 5367 (30 October 2018)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1517016

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 applicant a protection visa.

Statement made on 30 October 2018 at 5:25pm

CATCHWORDS

REFUGEE – protection visa – North Korea – nationality – South Korean dual citizenship – imputed political opinion – departing North Korea – North Korean spies in South Korea – location of father’s birth – right of refuge in South Korea – fear of torture or killing – employment discrimination in South Korea – recusal request – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 36, 65, 91, 424A, 438, 499
Migration Regulations 1994, Schedule 2

CASES

Hussaini v MIMA [2002] FCAFC 10
MIEA v Guo & Anor (1997) 191 CLR 559
Moqbool Hussain v MIMA [2001] FCA 523
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Raza v MIMA [2002] FCAFC 82
SZOUY v MIAC [2011] FMCA 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

In accordance with s.431 of the Migration Act 1958, the Tribunal will not publish any statement

which may identify the applicant or any relative or dependant of the applicant.

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW – SUMMARY1

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant was represented in the application before the Department and the courts, and in relation to this review, by his registered migration agent.

The applicant claimed to be a citizen of the Democratic People’s Republic of Korea (North Korea) and to have arrived in Australia [on] March 2011. He claims that he has no identity documents.

The applicant applied for the protection visa on 20 April 2011. On 27 April 2011 his application was accepted as valid.2

However, 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 he was considered a dual national of North Korea and the Republic of Korea (South Korea). Reference was made to the various provisions of South Korean law providing that North Korean citizens who were born in North Korea and have not acquired citizenship elsewhere are regarded as South Korean nationals. Reference was made to the Constitution of the Republic of Korea; Law number 16 of the Nationality Act 1948; Act on the Protection and Settlement Support of Residents Escaping from North Korea 1977; Immigration Control Act; and the Nationality Act Case 97. The letter noted that although a person with Korean lineage had already acquired North Korean nationality according to North Korean law, they will still be considered a national of South Korea.3 It was noted that no decision had been made by the Minister to lift this bar, pursuant to s.91Q of the Act, but that any submissions in support of such request should be provided within 28 days.

On 12 December 2011 the agent requested that the Minister exercise his powers under s.91Q of the Act.4 Attached were generic submissions5 dated 12 December 2011. It was submitted that the agent’s five different North Korean clients (including the applicant) do not want to go to North Korea. Difficulties for them in going to South Korea were also specified: mistreatment, discrimination, North Korean spies: country information was referred to indicating that there were about 40,000-50,000 North Korean spies in South Korea in the 1990s. A 2008 report says that large numbers of North Korean agents still operate in South Korea. They would be safer in Australia because there are less spies in Australia than South Korea.

On 24 May 2012 the applicant was informed that the Minister did not accede to a request to allow the applicant to make a valid application.6 It was noted that this was not the subject of merits review to the Tribunal.

The applicant lodged an application for judicial review to the (then) Federal Magistrates Court (FMC) [in] December 2011. Before the FMC, the applicant contended, among other things, that he was not a dual national of South Korea, and that the visa application was not

1 The source of this information is the delegate’s decision record provided to the Tribunal by the applicant, as well as the decisions of the courts.
2 [File number].
3 [File number].
4 [File number].
5 The submissions were generic for five of the agent’s North Korean clients.
6 [File number].

Case Number 1517016 Page 2 of 41

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 his father was born in 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 his parents’ places of birth, and claimed that some of the information he provided with his 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 the FMC, after taking evidence from the applicant, 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 his application form, which he now said was not true. His evidence appeared tailored to satisfy perceptions of self-interest (even if his motive to make false statements might be understandable). His new evidence was unconvincing, lacking in circumstantial details, and appeared at odds with his asserted precise knowledge of his parents’ dates of birth. Assessed at its best, his evidence to the FMC showed such uncertainty and vagueness as to what, when and how he had been told about the birthplaces and family origins of his father (as well as confusing evidence whether he had conversed with his father in Chinese or Korean, and disclaiming ever being told anything about his grandparents’ origins) as to cause the FMC to decide that his evidence lacked 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 a clear and unequivocal statement that his father had been born in North Korea. 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 he 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. The delegate’s letter was not a sufficient basis to throw the onus on the applicant to prove that he 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 he 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 (i.e. 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:

· His affidavit evidence is that he is not and does not have a claim to be a South Korean citizen.

· The reason he had claimed in his written materials that his parents were from North Korea was because he feared he would be sent to China if he said his parents were Chinese.

· He gave vague evidence of his family background which was unsatisfactory in circumstances whereby he lived with his father until his father’s death, when the applicant was [age].

· The primary judge found that the applicant was an unsatisfactory witness and that his evidence was unreliable. Like the primary judge, the Federal Court found the evidence insufficient to make a finding that he is a South Korean national.

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.7

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

7 The Tribunal had subsequently received the two expert reports from the Department (from [Expert A] dated 19 April 2013 and 30 April 2013), and forwarded them to the applicant, along with other information.

quashed, and that the Department should consider the application for a protection visa according to law.

On 2 June 2014, the applicant’s agent wrote to the Department noting that as a result of the Federal Court decision, the protection visa application “lodged 30 May 2011” (this was not the correct date8) should be determined in accordance with the law.

On 26 June 2014, the Department acknowledged that the applicant had made a valid application for a protection visa on 20 April 2011.9

By way of letter dated 4 September 201510 the Department informed the applicant that his application for a protection visa lodged 20 April 2011 was invalid. The Department relied upon an article in the International Journal of Refuge Law published in 2013 in relation to dual nationality, and noted that scholars and courts have accepted that, in principle, provided an individual born in North Korea is not descended from two foreign (non-North or South Korean) parents, he or she would also be a South Korean national from birth. The Department noted that for the purposes of determining nationality under s.91N(1) of the Act, the case of SZOUY v MIAC [2011] FMCA 347 confirmed that this does not include an assessment of the effectiveness of nationality or the right to enter and reside in the country. Nationality must be defined solely by reference to the laws of that country. It was noted that the protection visa application lodged would be considered as a request for the Minister to exercise his public interest power under s.91Q of the Act and that previous submissions would be taken into account.

This decision was reversed on 15 October 2015 “as client found not to be 91P and reassessed as valid”.11

By way of letter dated 27 October 2015, in response to requests for documentary evidence of identity, nationality or citizenship, the agent referred to the applicant’s statement indicating that he did not have any personal identification upon arrival in Australia.

The applicant submitted to the Department (16 November 2015) that there is no evidence to contradict that he is a refugee from North Korea who does not have any right of refuge in South Korea. If he had a right of refuge in South Korea, he could not make a valid visa application.

The delegate considered the application for a protection visa and refused to grant the visa on 30 November 2015. The delegate was unable to make an identity finding for the applicant on the grounds of a lack of personal identifiers. The delegate was not satisfied that the applicant is a citizen of North Korea. However, as the applicant had made claims against North Korea, the delegate decided to consider the matter as if the applicant was a North Korean citizen. In such circumstances it was found that he would have the right to enter and reside in South Korea (s.36(3) of the Act). 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. Thus, the applicant was not entitled to a protection visa.

8 As set out in the orders of the Federal Court, the application was lodged 20 April 2011.
9 [File number].
10 DF143.
11 Departmental notes, [File number].

The Tribunal

The applicant appeared before the Tribunal on 20 October 2017 to give evidence and present arguments; the applicant’s agent was also present. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. Submissions were made to the Tribunal both before and after the hearing. The Tribunal sent a letter pursuant to s.424A of the Act and a response, and further correspondence, was provided.

The Tribunal member regrets the delay in finalising this matter after the hearing. It notes that there was correspondence after the hearing and the applicant was 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 hearing, 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

Departmental files [numbers]

The Tribunal has before it a number of Departmental files: [file numbers], 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.

On 20 April 2011, the agent lodged a protection visa application form and Form 80 on behalf of the applicant as well as submissions that he has a well-founded fear of persecution in North Korea and that he will experience persecution if he is sent to South Korea. It stated that he is a citizen of North Korea. It was submitted that while he has no official documents to support a claim of being North Korean, he is from North Korea and has communicated with the agent with the assistance of Korean interpreters. He entered on a false passport which was retained by the tour operator; he has no identity documents. Subsequently a statement of the applicant was provided.

Protection visa application and Form 80 (Personal Particulars), signed 14 April 2011, as well as his statement dated 5 May 2011

The applicant’s written claims can be summarised as follows:

· He was born on [date] at [Address 1 in] [Province 1], North Korea, and is aged [age] years. He has no religion and he has never been married.

· His father was born in North Korea on [date] and is now deceased. His mother was also born in North Korea, on [date] and she is also now deceased.

· According to both forms, his citizenship at birth and currently is “North Korea”, and he does not have any right to enter or reside in any other country. His ethnicity is Korean. He only speaks, reads and writes in Korean. No other language is referred to. He seeks an interpreter in the Korean language, and would like it to be taken into account that he has hearing loss.

While in North Korea [between specified years] he was educated to high school level. [Between specified years] he worked in maintenance for [an employer], and [between specified years] he was [an occupation] for a [different] company.

He resided in North Korea until [a date in] January 2003, when he escaped North Korea for China.

He left North Korea because he had a hard time there. He did not have a humane and dignified life, and there is no freedom of movement in North Korea. He was very hungry. There was not much food available and the officials were always abusing the people physically and verbally. The first time he left, his mother had died of a disease and even his father had starved to death. He had no relatives and no-one he could depend on. He was a wandering orphan and made all efforts to survive. However he could not get any rations or do any trading work as his place was in a remote village. He thought if he went to China life would be better.

He met a Korean man who helped him find an owner of an orchard where he lived and worked; he also climbed mountains and cut down trees. He remained unlawfully present in China until August 2005,

In China, he was arrested [in] August 2005 by the Chinese police who conducted inspections on the road. He was investigated for one day, and remained at the police station for about a week. Along with [number] other North Korean defectors who had been arrested in other places, he was deported from China to North Korea. [In] August 2005 he was transferred to the police in North Korea. He was interrogated for about three or four hours every day for [a specified period], asked when he escaped North Korea, what he did in China, whether he attended church, how many times he met South Koreans in China and what he said to them. They beat him; his hearing has not been the same since then. He is not sure if he was convicted of anything.

[In] August 2005 he was transferred to a detention centre where he was forced to work for 8 days until he escaped when the supervisor was talking to his friend.

On [a date in] September 200512 he successfully crossed a river and returned to China.

Around [a date in] October 2007 he intended to go to South Korea. But he was arrested by Chinese police as he had been reported to them. He was investigated, he [harmed himself] and woke up in a hospital. He was further questioned. He jumped out of a window to escape but he was injured and caught. The policeman who caught him was sympathetic that he did not want to return to North Korea and allowed him to escape.

On both occasions he was in China, his status was “unlawfully present”. He survived in China by doing “many kinds of work”. He traded [products] in one location; he worked at a [farm], he [worked on specified] equipment: his work in China from January 2003 until March 2011 was in [specified] labour, [detailed].

He was anxious about being arrested and tortured again. He obtained a false Chinese passport with the help of a landlord for [amount]RMB in [March] 2011. He joined a group of [number] Korean/Chinese tourists and arrived in Australia [in] March 2011 holding a [temporary] visa. The tour leader took the false passport from the applicant. He has no travel documents.

12 At hearing it was confirmed that the translated date in his statement [in] February 2005 was an error.

· He is seeking protection so that he does not have to return to South Korea or North Korea. He is safe here, unlike in China.

· If he returns to North Korea he will be killed by the authorities. He will be regarded as a traitor for having left the country.

The submissions accompanying the protection visa application form state that:

· The applicant has a well-founded fear of persecution in North Korea: he will be shot or imprisoned in hostile conditions. This will occur for reasons of his political opinion (he fled and is considered a traitor). Country information was provided about the North Korean government’s human rights record.

· There may be some minor discrepancies in the application form and his statement (which was yet to be provided) which could be due to misunderstandings in interpretation, anxiety and fear of return to North Korea. It was not suggested that there were any particular errors of which they were aware, this appeared to be a general point.

· The agent had conducted a review of Refugee Review Tribunal decisions which had identified the applications as invalid on the grounds that North Koreans are considered to be South Koreans according to that country’s constitution. It was noted that there were however a number of countries around the world accepting North Koreans as refugees.

· It was submitted that refugees from North Korea experienced 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.

By way of letter dated 20 May 2011, the applicant was invited to attend an interview on 6 June 2011 in relation to his application for a protection visa. The file itself did not contain a recording or transcript of any notes at that interview (the Tribunal’s attempts to ascertain whether there was any such record are referred to below at paragraph 151. ).

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.

Interview with applicant about identity and events when he arrived in Australia – 23 December 2011

On the Departmental file there are notes of an interview on 23 December 2011 with the applicant about his identity and events when he arrived in Australia:

· He provided his parents’ names and dates of birth and death. He recalls having documents relating to his identity in the past, but these were lost or thrown away.

· He worked in various towns in China between 2003 and 2011. He was returned to North Korea in 2005, and then escaped and returned to China. He paid a person [amount]RMB to help him gain entry to Australia using a Chinese passport at the airport.

· He first presented to the Department on 30 March 2011, having been driven there. He was told to enter the building and just say he was North Korean. He had no identity documents when he presented. It was noted that he had a hearing aid and he said that he had been assaulted in North Korea. He is not seeing any doctors to treat his hearing loss. He gets some flashbacks when he is being asked questions.

Submission about identity dated 27 October 2015

A letter was provided by the agent to the Department dated 27 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 his identity in his protection visa application form, namely that he had entered Australia with a false passport as his only form of personal identification.

Submission dated 16 November 2015 to the Department

In addition to the assertion referred to in paragraph 20. above, in the letter of 16 November 2015 the agent asserted that more than one officer of the Department had claimed, on a number of occasions, that this applicant and [Ms A] (the other applicant whose case was heard at the same time by the FMC and the Federal Court) know each other, and that this applicant is the father of [Ms A’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 24 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 applicant):

· The delegate noted that prior to the interview the agent called and said that the applicant was anxious and has a hearing difficulty. These matters were discussed at the beginning of the interview and the delegate said that measures were taken to ensure that the applicant was not disadvantaged. The applicant advised that as long as the interpreter spoke slowly and loudly there would not be a problem. At the end of the interview he confirmed that there was nothing he needed to add or have remedied due to earlier anxiety and hearing difficulty.

· The delegate noted that the applicant had not provided any identification, but claims that he left China [in] March 2011 using a fraudulent Chinese passport that he obtained in China and travelled to Australia [in] March 2011. After arriving in Australia the group leader who accompanied the applicant collected the fraudulent passport. When the delegate explored this with the applicant, he said he did not know what airline he travelled to Australia on, he arrived sometime in the morning. The applicant was asked if he had any identity documents and he advised he did not.

· The delegate put to him that if he was a North Korean citizen, he would be able to reside in South Korea. When asked whether there was any reason why he could not, he said that while he was in China, he tried to go to South Korea.

· He also said that there are North Korean spies in South Korea who could capture and kill him. The delegate also noted that the written claims had included a claim that if the North Korean authorities knew he was in South Korea, his family would be persecuted in North Korea [this claim seemed at odds with the applicant’s claim that his parents had died and he had no family/relatives in North Korea]. Further, he will face persecution and discrimination in South Korea.

The delegate asked the applicant a number of questions about North Korea (referred to further below).

By way of letter dated 18 November 2015 the agent provided via email to the Department photographs (said to be the applicant’s parents).

Decision record

The delegate noted that although the applicant showed a degree of knowledge of some aspects of North Korea, information can be learned for the purposes of a protection visa interview and the delegate was not satisfied on the evidence presented that the applicant was a North Korean citizen (nor that his claims in that regard were true).

However, so that the applicant would not be disadvantaged, the delegate considered the applicant against both North Korea and South Korea as countries of reference. 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 he is or is not North Korean through language analysis because even if the applicant was North Korean, he does not have a well-founded fear of persecution in South Korea [the applicant later provided his own reports on language analysis to the Tribunal].

The delegate considered that if the applicant was, as claimed, a North Korean citizen he 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 Department of Foreign Affairs and Trade (DFAT) advice refers to practical assistance offered: training, finances, and accommodation. The delegate was not satisfied that the applicant faces a well-founded fear of persecution in South Korea. Concerning his claim that he will face persecution and discrimination in South Korea and could be captured and killed as a spy, it was acknowledged that there are spies, but it was considered that the applicant does not have a high profile. 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 noted that the applicant’s family in North Korea are not the applicants in the case.

Certificates

The Tribunal wrote to the applicant after the hearing noting that there was a s.438(1) non- disclosure certificate in relation to certain folios on Departmental file [File number]. The Tribunal noted that the certificate appeared not to be valid and that the documents covered by the certificate are internal administrative documents about processing the protection visa application and asylum seeker support (including some communication with the agent). When responding to this aspect of the Tribunal’s letter, the applicant said “no comment”.

For a s.438(1) certificate to be valid, the reason specified in the certificate for why disclosing matters contained in a document or information would be contrary to the public interest must be capable of forming “the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence”. The only reason stated in the certificate is that the folios “contain information relating to an internal working document and business affairs”. That is neither a necessary nor a sufficient basis for public interest immunity. At best, it is only a reason that could form part of the basis for a claim, not

the basis, and does not communicate to the Tribunal any reason which meets the description in s.438(1). Since the certificate is not valid it does not trigger the operation of ss.438(3)(a) and 438(3)(b) in relation to how the documents or information can be dealt with and the Tribunal has proceeded to treat the documents in the usual way as if there was no certificate. It noted that generally it considered these documents not to be relevant.

There was also a certificate on the file [number] relating to information suggesting that the applicant may be part of a group of persons fraudulently claiming to be North Korean and that his protection claims would thus be untrue. The Tribunal wrote to the Department, noting that the wording of the certificate appeared invalid, asking whether they sought to re- issue the certificate and noting it would appear they would have to rely upon new grounds if they sought to do so. In response the Department stated they did not seek to re-issue the certificate. The information covered by the certificate was in any event to be put to the applicant pursuant to s.424A in order to comply with s.424A obligations; this was done (and is discussed further below). The wording in the certificate is the same as above; and the Tribunal considers it to be not valid. The Tribunal has treated the documents as it would any other document with possible adverse information about the applicant; in that it has put particulars of the information to the applicant pursuant to s.424A of the Act. The Tribunal has decided not to place any weight on the information in this document.

The Tribunal

On 16 December 2015, the agent provided to the Tribunal a copy of the decision of the Federal Court, 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 hearing) 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 applicant is relying upon the judgment of the Federal Court, noting that the judge found that the applicant 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 application to the Department with a direction that the visa be granted.

· The applicant as a North Korean does not have access to South Korea (in the sense of s.36(3) of the Act) and the delegate was “absurd” in so finding [the Tribunal does not however have to consider the s.36(3) argument given its findings]. The applicant has never applied to enter South Korea nor has he ever expressed a will or desire to be protected by South Korea. He has made an application for protection in Australia and all these factors exclude him from “South Korean citizenship”.

· The Federal Court found that there was insufficient evidence that his father was born in North Korea. The Tribunal is bound to accept that this was the state of the evidence as

at that time. It was also submitted that there must be “positive” evidence of citizenship according to her Honour’s judgment.

· Scepticism about the evidence is not evidence of something else; for example if the Tribunal did not believe that the applicant’s father was born in China then that is not evidence that he was born somewhere else. If there was another place for his birth it could have been Japan (with its substantial ethnic Korean community) or Mongolia also with an ethnic Korean community or what is now South Korea or North Korea. There is no “evidence” of him being born in any of those places, the only “evidence” is of him being born in China. There is no evidence that would suggest that the applicant could be sent to China, Japan, Mongolia or South Korea.

Also provided is a letter from [Dr A] dated [in] May 2017, detailing the results of a physical examination (including that the applicant has severe hearing loss).

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. In this regard, the Court had found that there was insufficient evidence to find that s.91N of the Act applied. 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; as such the Tribunal would be taking and considering additional evidence.

It has also been submitted that as the parties (the Department and the applicant) agreed the effect of the South Korean law in the Federal Court proceedings (that if both parents were not born in North Korea, then they 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 is a North Korean citizen.

At hearing the applicant provided documentary evidence relating to the grant of bridging visas including permission to work (he said he has worked in Australia as [two different occupations]). The agent also provided a letter dated 19 October 2017 at hearing (this however contained the reference number of the other applicant’s case: [AAT file number] and the Tribunal noted that it contained content relating to that other applicant. The agent apologised and the Tribunal suggested that it would only have regard to those matters relevant to this applicant). When the Tribunal took evidence from the applicant during the hearing it was satisfied that he was able to hear and understand the proceedings and present evidence and arguments.

The Tribunal put to the applicant that it had credibility concerns; it was difficult to accept his evidence; and it may not be satisfied as to the claims of his nationality being North Korean. After the hearing, correspondence was forwarded by the Tribunal including information pursuant to s.424A. A request for further time to respond was made and the Tribunal granted this request. A response was received in April 2018, with further responses being received in June 2018.

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, the Tribunal has considered the submissions 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 noted in its letter dated 27 March 2018 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 applicant has a well-founded fear of persecution or faces a real risk of significant harm, and the relevant nationality and country of reference against which such matters are to be assessed.

In relation to nationality, in its letter the Tribunal stated:
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 he 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 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 he may be a North Korean national as claimed. The Tribunal is also concerned with the credibility of the applicant’s claims about his parents.

If the Tribunal does accept that he 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 expert opinions offered by the Minister were obtained by the Tribunal and forwarded to the applicant. The Tribunal noted in the second expert report of [Expert A] dated 30 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)”.13 The applicant also offered further expert evidence as to nationality, which was 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 applicant.

Credibility concerns

In relation to the credibility of the applicant, including his assertion that he is a North Korean citizen, 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 his claims or claimed background. The Tribunal has concerns with his inconsistent, not credible and/or his changing evidence in relation to family and background details, past events of persecution, and future fears.

Inconsistent evidence given about the applicant’s knowledge of details relating to his parents and grandparents, and his changing reasons for giving inconsistent evidence

The Tribunal was concerned that the applicant gave inconsistent and changing evidence about his knowledge of his parents’ and grandfather’s details in a number of respects as set out below.

Firstly, the Tribunal was concerned with the applicant’s changing evidence concerning his father’s place of birth, especially as it was argued on his behalf in the court proceedings that his father’s place of birth was a significant factor in considering whether or not the applicant was a dual citizen (and thus s.91P barred from making an application). The Tribunal noted that neither his application form nor his statement (lodged in April and May 2011) with the

13 Expert report from [Expert A] dated 30 April 2013, pages 2, 4.

assistance of his solicitor was there any mention that his father may have been born in China. It was only after his application was found to be invalid by the Department (7 November 2011) that he made a claim that his father may have been born in China.

In this regard, his Form 80 specified that both parents’ “place and country of birth” was North Korea. However, he made a different claim to the FMC on 30 October 2012 (according to the transcript of his evidence):

[Representative A]: …Where were your parents born?

THE INTERPRETER: I’m not quite sure whether my father was born in North Korea or China but, as far as I know, in [year] he joined the North Korean People’s Army in North Korea.

[Representative A]: Do you know where (y)our father was born? THE INTERPRETER: Not quite sure.
AND later:

[Interviewer:] As far as you are aware, the only ethnicity your father had was Korean; that’s right isn’t it?

THE INTERPRETER: I’m not quite sure because I’m not quite sure whether he was born in North Korea or China so I cannot be sure.

The Tribunal was also concerned that while the applicant’s initial evidence to the Tribunal about his father’s place of birth was also vague, his evidence then changed and became very specific: when asked by the Tribunal, he first said that his father’s hometown was in China, but he doesn’t know where in China and he is guessing his father is Chinese. He said that his grandfather was North Korean but had left North Korea during Japanese occupation to go to China because the conditions at that time were so bad in North Korea. When the Tribunal asked why he thinks his father was born in China, he said because when he was growing up he hears that his father left [Town 1] in China in [year] for North Korea where he joined the North Korean Army. After he told the Tribunal that his father had served in the North Korean Army, the Tribunal asked him how could he serve in the North Korean Army if he was Chinese, and he said that is a good question; after the applicant left middle school and he was working, his father told him that ethnic Korean Chinese born in [Town 1] were deployed in the North Korean Army. When the Tribunal sought his confirmation that his father had explained to him that the reason his father could serve in the North Korean Army was because his father was an ethnic Korean Chinese born in [Town 1], China, the applicant agreed.

The Tribunal put to the applicant however that his current evidence that his father was born in [Town 1], China, was inconsistent with his written materials where he had specified that his father was North Korean, born in North Korea. In response the applicant said that his grand(father) was born in North Korea, so that is his father’s hometown however even now he is not sure about his father’s hometown. The Tribunal put to the applicant that it did not understand this explanation, given that he had just told the Tribunal that he had had a discussion with his father whereby his father confirmed that he was born in [Town 1], China. The Tribunal again gave the applicant further opportunity to explain, asking why he would have written that his father was born in North Korea if he was born in China. His responses included silence; and that when he (the applicant) was born his father had North Korean nationality and after he graduated from school he thought that his father was North Korean. The Tribunal put to him that this was different to his earlier evidence to the Tribunal that after he graduated from school he knew his father was Chinese-born. He said rather than China-

born, he just knew that his father left [Town 1] in China to come to North Korea. The Tribunal put to the applicant that this was different to his earlier evidence that he knew from his discussions with his father that his father was ethnic Korean born in China. In this regard the Tribunal said it was trying to understand why he wrote in his forms that his father was born in North Korea. He responded that because he was North Korean he thought that his father was also North Korean and in North Korea there is not anyone who is born overseas. The Tribunal asked what he meant by saying that no one in North Korea was born overseas, and he then changed his evidence and said that he is not saying there is no one born overseas in North Korea but they simply don’t know about that and it doesn’t come to their mind at all.

The Tribunal was concerned that the applicant’s changing evidence and explanations undermined his credibility and claims.

The Tribunal had also put the relevant information to the applicant pursuant to s.424A of the Act after the hearing. In the written response, it was stated that the applicant was not born in [Town 1] (the Tribunal does not consider that the applicant said he himself was born in [Town 1], but that his father had been born there). It was also submitted (as a general response to a number of different information put) that it was not the applicant’s error (however it was not stated whose error it then was) and that even if it was the applicant’s error, it does not follow that such a “mistake” is interchangeable with a lack of credibility. The Tribunal notes that this response may also be considered to be an admission of error in relation to four other pieces of information put to the applicant (and which the Tribunal has taken into account, without repeating it four further times in this decision record). The Tribunal does not however consider that the applicant has provided a satisfactory explanation for his changing evidence about whether or not he knew where his father was born.

It was also stated in post hearing response that he has consistently known his parents in North Korea and it is where he grew up with them and where they died. The inconsistent evidence is “in no way” a contradiction of his nationality. More specifically it was stated in the response that the applicant said his father was not born in [Town 1] but that this was the name of his father’s army in North Korea, and reference was made to a page from Google. When considering that Google page however, the Tribunal notes that it does not support the applicant’s response. It shows that the Google search was “[Town 1] army north korea”, and that every search result contained the words “army” “north” and “korea”, but that the word “[Town 1]” was missing. The Tribunal notes that at hearing, the applicant was referring to his father having been born in [Town 1] in China, not North Korea, which is inconsistent with his subsequent explanation. The Tribunal does not give the applicant’s Google search any weight, as it does not support either his explanation at hearing or his explanation regarding the information put pursuant to s.424A of the Act. The Tribunal considers that the applicant’s explanations are inconsistent with his evidence.

Reasons for (claimed) false claims in written materials

Secondly, the Tribunal was concerned with the applicant’s inconsistent evidence as to the reason why he claimed in his written materials that his father was born in North Korea. His oral evidence at the Tribunal hearing, when offering explanations for this, suggested that he had written that his father was born in North Korea because he was acting honestly (he believed he was a North Korean citizen). The Tribunal sought confirmation of this and he agreed. This however was inconsistent with what he told the FMC in his evidence:

[Representative A]: … Why did you say your parents were born in North Korea?

THE INTERPRETER: When I first went to the immigration department I feared that I might be sent to China if I say that my parents were born in China.

Thus, the evidence to the FMC indicated that he had deliberately given false information in his written materials about his parents’ place of birth. The Tribunal put to the applicant at hearing that the explanation he gave to the FMC (that he deliberately chose to give false information about his parents’ place of birth in his written forms) was inconsistent with his numerous explanations to the Tribunal (above) that his claims in his written materials had been made with honest intentions. In response, he said that as he was born in North Korea and his parents were North Korean citizens he thought they were North Koreans and he does not think he said what he is recorded as saying at the FMC.

The Tribunal also put this to the applicant pursuant to s.424A of the Act after the hearing and his response was similar (except he did not assert in that response that he does not think he said what he is recorded as saying at the FMC, and the Tribunal notes that he did not offer any further evidence to rebut the FMC transcript). Further, the Tribunal notes the generic response offered by the applicant in response to five separate pieces of information put to him pursuant to s.424A of the Act, which included (as noted above), that there had been an “unintentional error” (in saying his father was born in [Town 1], China); that was not the applicant’s error (however it was not stated whose error it was); and that even if it was the applicant’s error, it does not follow that such a “mistake” is interchangeable with a lack of credibility. The Tribunal does not consider that the applicant’s explanations are persuasive reasons as to why he said in one instance in giving evidence that he intentionally gave false information to the Department about where his parents were born, yet in a different forum in giving evidence he claimed this was (an honest) mistake in his forms. The Tribunal considers that this undermines his claims and credibility.

Knowledge of his grandfather

Thirdly, the applicant also gave inconsistent evidence about his knowledge of his grandfather. As noted above, he told the Tribunal specific information about his father’s father, namely that his grandfather was North Korean but had left North Korea during Japanese occupation to go to China because conditions were bad. The applicant’s evidence in the FMC, set out below, however, was:

[INTERVIEWER]: Did you ever meet your grandfather on your father’s side? THE INTERPRETER: No, never.
[INTERVIEWER]: Do you know where your grandfather on your father’s side lived? THE INTERPRETER: I don’t know.
[INTERVIEWER]: Did you never talk to your parents about your grandparents?

THE INTERPRETER: Because we were just busy in every day life - North Koreans do not talk about the families and things like that at home.

The Tribunal was concerned that the applicant gave different evidence in different proceedings; telling the FMC that North Koreans do not talk about families (thus explaining his lack of knowledge about his grandparents), but telling the Tribunal details about his grandfather (and about his father’s history having been born in [Town 1] in China). This was put to the applicant at hearing pursuant to s.424A of the Act. In response, he said that at the time when he was responding to the question about his grandparents, he didn’t know where their hometown was or other details, and although he had heard that his grandfather had lived in China, he just said to the FMC that he didn’t know. The applicant’s written s.424A

response was the same as to the other information (referred to above) including a general assertion that there may have been a mistake. It was also stated in response that he has consistently known his parents lived in North Korea and it is where he grew up with them and where they died; the inconsistent evidence is “in no way” a contradiction of his nationality.

The applicant did not suggest that he had somehow learned information about his family between the time of giving evidence to the FMC and the Tribunal hearing. The Tribunal does not find the explanations to be persuasive reasons as to whether he did or did not discuss (and know) things about his family. The Tribunal considers his evidence and explanations undermine his credibility and his claims about his family background.

Knowledge of his mother’s place of birth

Fourthly, the Tribunal was concerned that he gave inconsistent evidence about his knowledge of where his mother was born.

When the applicant gave evidence before the FMC on 30 October 2012,14 he asserted he did not know where in North Korea his mother was born:

[Representative A]: And where was your mother born?

THE INTERPRETER: As far as I know, my mother was born in North Korea. [Representative A]: Do you know where your mother was born?
THE INTERPRETER: Not quite sure.

This, however, was inconsistent with the precise location of birth he provided to the Tribunal, namely [Address 1 in Province 1]. When the Tribunal asked him how he knew this was her place of birth, he said that he knows; this is his hometown.

The Tribunal was concerned that these responses were different; when this was put to him at hearing, he agreed he had given these different responses. When the Tribunal asked him to explain why, he said he doesn’t know: even now it is his first time in these proceedings, and going to the court makes him very nervous. The Tribunal also put this to the applicant pursuant to s.424A of the Act after the hearing. In response, he said that he has consistently known his parents in North Korea and it is where he grew up with them and where they died. The inconsistent evidence is “in no way” a contradiction of his nationality. Further this may be a “mistake” (as discussed further below). The Tribunal has not found these to be persuasive explanations for the changing evidence as to where his mother was born, which it considers undermines his credibility and claims.

Language

Fifthly, the Tribunal was concerned that the applicant gave inconsistent evidence about his exposure to the Chinese language. When the Tribunal asked the applicant when he first spoke Chinese, he said that when he went to China in 2003 after escaping North Korea, he started saying simple things like hello and good morning. Later the Tribunal asked whether the first time he had any exposure to Chinese language was when he went to China in 2003, and he agreed.

This however was inconsistent with his evidence to the FMC that his father used to speak to him in Chinese:

14 Page 5 transcript.

[INTERVIEWER]: Your father spoke to you in Korean?

THE INTERPRETER: He spoke to me in Korean but he went to China twice so in my memory he also spoke to me in Chinese as well, but when we were in North Korea he spoke to me in Korean of course.

The Tribunal put this to the applicant at hearing and he said he had been asked when he first spoke Chinese so he said it was in 2003 when he left North Korea for China but the Tribunal did not ask whether his father could speak in Chinese or not and it is true that his father could speak Chinese but the applicant himself couldn’t; so he was just responding to the question. The Tribunal noted that it had asked about the applicant’s first exposure to the Chinese language and he had told the Tribunal that this occurred when he escaped to China in 2003 (after his father was dead), whereas he had told the FMC that he had been exposed to Chinese language earlier through his father (and he did not suggest in his written materials or to the Tribunal that he had ever travelled to China with his father; it was his claim that prior to leaving North Korea for China in 2003, the applicant had never left North Korea). The applicant then said that the Tribunal had not asked him about his father.

The Tribunal notes it had asked the applicant at hearing about his first exposure to the Chinese language. The applicant had said this was after he had escaped from North Korea to China (after his father died) where he started saying simple words like “hello”. This is different to his claims to the FMC that he was exposed to Chinese through his (Chinese) father who spoke to him in Chinese before his death. The applicant sought and obtained a copy of the Tribunal hearing recording and did not refer to any interpretation errors in relation to this evidence. His s.424A response was the same as for the other information referred to above, which has been considered. The Tribunal has considered the explanations, but is not satisfied with his explanation about his exposure to Chinese language (whether it was through his Chinese-born father before his death or whether it was after his father’s death when he escaped to China and started to say words like “hello”), especially given his other evidence in relation to his language abilities, which appeared unlikely. He told the Tribunal that he was unable to read the details on his passport when he came to Australia; his only language was Korean and he could not speak English or Chinese. The Tribunal noted however that he had claimed to have lived in China in four different locations, for a period of 7-8 years, that he managed to obtain and work in numerous jobs, and to move around; in the circumstances it appeared difficult to accept that he knew nothing in Chinese language. He said that he lived in a place in China where there were ethnic Korean people. Similarly, the applicant claimed he could not speak English, yet he said that he had successfully completed assignments in English and successfully obtained a [qualification]. The Tribunal put to him that this seemed unlikely. In response the applicant claimed that he had managed to do this with assistance from Koreans (he did not suggest that there was no need to know English). While the Tribunal accepts that his explanations about his lack of knowledge of Chinese and English are possible, having regard to its other concerns, it is not prepared to accept that this applicant, who worked, changed jobs, travelled to different locations and lived in China for 7-8 years, and who has achieved education and qualifications in English, has effectively no knowledge of either language. The Tribunal considers that this undermines his credibility.

The Tribunal considers that his claim that his first exposure to the Chinese language was when he went from North Korea to China is inconsistent with his claim that he was exposed to the Chinese language in North Korea because his father was Chinese and had spoken to him in Chinese. The Tribunal is not satisfied with the explanations.

Changing evidence

Sixthly, the Tribunal was concerned that the applicant changed his evidence about details of his claims, sometimes in response to questions by the Tribunal. Although when considered individually, these matters may not appear to be of significant concern, when considered together, the Tribunal was concerned that they undermine his credibility and his claims:

Questions from the Chinese authorities: The Tribunal asked the applicant what the Chinese authorities said to him when he had been detained. He said they asked if he had escaped from North Korea, his name and date of birth and where he lived; in China they don’t ask too many questions. The Tribunal put to the applicant that this was different to his statement where he claimed that the Chinese authorities investigated him for one whole day and thereafter he was placed in custody at the police station for one week; and the second time he was further investigated, and then in custody in the prison for two days. The applicant then changed his evidence and said he was not investigated for a day, he was just in custody for a day. As his statement notes that he was in custody for more than a day on each occasion, the Tribunal does not consider this explanation to be persuasive. Further, his explanation that in China they don’t ask many questions appeared to be undermined not only by the two references in his statement to being investigated by the Chinese authorities, but a further claim that three Chinese police officers investigated him about his [self harm]; and later when arrested after jumping out of a window, one police officer asked a number of questions which led to him being so moved by the applicant’s plight that he let him escape. The Tribunal considers that his statement indicated that the Chinese authorities ask more questions than what he claimed at hearing (just his name, date of birth, where he lived, and whether he was an escapee).

Questions from the North Korean authorities: The applicant had listed in his statement a number of questions that the North Koreans had asked him when he had been repatriated from China. When the Tribunal asked the applicant at hearing what the North Koreans had said to him, he said they asked his name and address and basic things and when he escaped from North Korea to China and what he did in China, how long he lived there, and whether he had been to a church and whether he had met any South Koreans and what they talked about and how he lived. The Tribunal noted that his evidence as to the questions asked by the North Korean authorities appeared identical with the questions he had listed in his statement. This caused the Tribunal concern when the applicant was not able to be as forthcoming with his responses to the North Koreans’ questions, which were not set out in his statement. When the Tribunal asked him what his responses to these questions were, his evidence appeared evasive. He initially said he thinks he gave them a false name. When asked what that was, he said he can’t recall. He said he also gave an incorrect date of birth and address. When the Tribunal asked what was the information he had given, he just repeated that he gave a false name, date of birth and address, without saying what he had actually said to them. When asked again, he said he doesn’t recall the false name and date of birth. He then said he gave them a false address in [a town in a different] Province. The Tribunal asked if there was household registration in North Korea and he said yes. The Tribunal put to him that it would seem fairly easy for the authorities to find out if he was lying about his name, date of birth and address. In response the applicant said that the North Koreans don’t have a computer or online system or good telephone system like China and there are many escapees, it is easy to lie. The Tribunal put to him that this seemed inconsistent with the behaviour of the North Korean authorities.15 He changed his response

15 The Tribunal notes the reference in Although the country lacks trained demographers, accurate data on household registration, migration, and births and deaths are available to North Korean authorities. According to the United States scholar Nicholas Eberstadt and demographer Judith Banister, vital statistics and personal information on residents are kept by agencies on the ri, or ni (village, the local administrative unit) level in rural areas and the dong

and said that they don’t care about escapees much, unless the escapee is a politician. This response caused concern, because as the Tribunal put to the applicant, it appeared inconsistent with his claims in his statement that he was subjected to intense investigations over a [specified] period, for three to four hours every day, being asked questions by a police officer about himself and his activities. He responded that the Tribunal should ask questions better; they beat him and demanded he tell the truth during the 3-4 hours of investigation. The Tribunal has considered the applicant’s responses however it does not consider that he has explained the change in his evidence from claiming that the North Koreans spent [lengthy] hours over a [specified] period investigating him; to telling the Tribunal that they were not interested in him because there are so many defectors and he was not a politician. Further, the Tribunal remained concerned that the applicant could repeat the questions asked by the North Koreans (which were in his statement), but hesitate and provide vague evidence as to his answers to the North Koreans (which were not in his statement). The Tribunal considers that these matters undermine his credibility and claims. The Tribunal has, in this regard, considered a post hearing response which seemed to provide an explanation as to why the applicant did not recall for example the false name that he gave to the North Korean authorities, namely it was said that not recalling a false name and address given while being interrogated and extremely frightened is not extraordinary and it does not undermine his claims or credibility. The Tribunal has considered this explanation, however it does not explain why the applicant was able to recall the questions he was asked but not these answers he gave, especially considering that if he had given a false name and address, he would have had to recall this on each occasion that he was questioned by the authorities during the time he was being investigated.

Intention to travel to South Korea: The Tribunal noted that he had claimed in his statement that he wanted to go to South Korea, and asked the applicant why he had wanted to go to South Korea. In response he said that the Chinese authorities arrest a lot of North Korean escapees and return them to North Korea so he had a fear and he wanted to go to South Korea. The Tribunal noted that he had a fear of North Korean spies in South Korea, so it did not understand why he was prepared to go to South Korea. He then said if the Tribunal is referring to when he was prepared to go to South Korea in 2005, at that time he did not know how many North Korean spies there were in South Korea. It was in 2005 and after that he met some other escapees and he watched the news and learned that there are a lot of spies in South Korea. After learning all that he did not want to go to South Korea in 2005. The Tribunal asked if he was sure that it was in 2005 that he wanted to go to South Korea and he agreed. The Tribunal put to the applicant that his claim in his statement that on a precise date in 2007 ([in] October), he intended to go to South Korea appeared difficult to understand given his evidence that ever since 2005 he was aware of all the North Korean spies in South Korea and did not want to go there. His response was to assert that the Tribunal did not ask him when he wanted to go to South Korea. Given the discussion set out above, the Tribunal does not accept this explanation. The Tribunal considers that his changing evidence undermines his claims and credibility.

A further credibility concern, involving changing versions of events: As put to the applicant in the s.424A letter, according to Departmental notes of interview on 4 January 2013, he presented to [a specified office]. He was accompanied by [Representative B] who represents [the Adviser Firm]. He stated that his wife, who was [Ms A]16 gave birth and provided a medical certificate from [a named] Hospital. [Representative B] advised that they are yet to register the baby and once this is done they will provide the Department with the birth certificate to register the child on the system. [Representative B] provided Form 1022 (Notification of Changes in Circumstances)

(district or block) level in urban areas.
16 Another client of the applicants’ representative’s firm, which case was heard jointly in the FMC and Federal Court with the applicant’s case.

in the name of [variation of Ms A’s name] DOB: [date] stating that she gave birth to a boy at [the named] Hospital.

However, when the applicant presented to the Department two months later, on 4 March 2013 (he had missed reporting in February), accompanied by [Representative C] (the applicant’s current agent), according to Departmental notes of that interview, his claim was different. When the delegate asked him how his wife and child were, and whether he had brought with him the birth certificate as discussed at their last interview, he responded that he does not have a wife and never said he lives with a woman. When asked if he remembers: what was discussed in the last interview, who he presented with and the documents that were provided to the delegate during the interview, he confirmed the last interview was on 4 January 2013 but stated he does not know what was discussed and does not remember anything about the interview. The delegate repeated the questions as the interpreter wanted to confirm that he asked the right questions of the applicant, who replied again that he does not know, he cannot remember, and he never said he has a wife. The delegate asked if he could least remember who he came with, male or female, and he responded male. The delegate then said that on 4 January 2013 the applicant presented with [Representative B]; the applicant stated that his wife gave birth and provided the delegate with the following documents (the delegate presented a printed copy for his viewing: Form 1022 for [Ms A]; [Ms A’s] medical certificate; [a utility] Bill, [a bank] statement, [a different bank] statement; court papers for himself and [Ms A]); and [Representative B] had stated he will forward the birth certificate as soon as the child has been registered. In response, the applicant repeatedly stated he is not married, does not have a child and denied making these claims in the previous interview and denied providing the delegate with these documents during the interview (with the exception of the bill in his name that he had provided as proof of address). When the delegate mentioned the applicant’s name and date of birth, he interjected and claimed he knows her through their lawyer and he met her on the day of hearing in November or December and he knew she was going to give birth. The agent said she cannot explain how the delegate obtained the documents; that she had called [Representative B] to ask if this was discussed at the last interview and he said no; and that both clients are represented by her.

The Tribunal notes a further difficulty with the argument now being made by [Representative A], in that it appeared contrary to the position taken by the agent who generally had the conduct of this matter and [Ms A’s] matter (including during two hearings), [Representative C]. The Tribunal sought clarification from [the Adviser Firm] in [Ms A’s] matter in its letter of 27 March 2018, as to whether [Representative C] was suggesting that the Tribunal should have heard the two matters together. In her response on behalf of that applicant dated 18 April 2018, she was very clear in stating that the Tribunal was correct in that there was no suggestion by [the Adviser Firm] that the two matters should have been heard together.

The Tribunal also noted that it was not clear from the letter from [Representative A] dated 6 June 2018 as to how, having heard the cases separately, this was prejudicial to this applicant. The Tribunal is satisfied it has complied with its procedural fairness obligations in respect of the applicant in this case in hearing his application separately.

A second reason for proposed recusal appears to be a different interpretation of the law and the relevant Federal Court judgment, and the assertion that the Tribunal has no other jurisdictional option than to remit the matter to the Department with a declaration that the application meets the criteria for the grant of the visa sought. In its letter in response, the Tribunal noted this submission appeared misguided. The role of the Tribunal is to consider whether the applicant meets the criteria for the grant of the visa and to make material findings of fact based on the evidence before it. The Tribunal has additional evidence which was not before the Federal Court (including evidence from the applicant himself), and it does not propose to disregard such additional evidence. It was noted that this was explained in the Tribunal’s letter to [the Adviser Firm] dated 27 March 2018.

A third reason for recusal was described as the “presentation of constantly renewed research and of other material aimed at thwarting the applicant”. In its letter in response, the Tribunal stated that it did not have any such aim, and that the Tribunal has presented evidence and information to the applicant as part of its duties of procedural fairness.

The Tribunal notes that specifics of this concern were not provided in [Representative A’s] letter, however as the letter referred earlier to the expert opinions of the Minister provided to the applicant, this may be what was intended to be covered by such comment. The Tribunal notes that this case had come to the Tribunal after two considerations by the Department, evidence given to the FMC together with submissions, and arguments made to the Federal Court. Throughout the conduct of the review it became apparent that the Tribunal was not in possession of information that did, or may, exist, and the Tribunal made enquiries about such missing evidence. For example, evidence was given by the applicant to the FMC about relevant issues (as discussed in the two court judgments) and neither the Department nor the applicant had provided the transcript of the evidence to the Tribunal. The Tribunal requested and obtained the transcript of evidence given by the applicant to the FMC. It also became apparent that the Tribunal had not been provided with all relevant documents by the Department, as the expert opinions in the Minister’s possession (sought to be tendered to the Federal Court), as recorded in the judgment, were not in the Departmental files. The Tribunal also noted reference to an affidavit in the judgment of the FMC that had been sworn in support of those proceedings and requested a copy of this from the Department. A short affidavit prepared by [the Adviser Firm] was produced in response, indicating that the applicant was not South Korean and had never been there.

Further, as set out in the Department’s protection visa file, by way of letter dated 20 May 2011, the applicant was invited to attend an interview for a protection visa on 6 June 2011. The file itself did not contain a recording or transcript of any notes at interview, and the Tribunal notes that the FMC had also remarked on the absence of information from such interview. The Tribunal made a number of attempts to obtain this information; this led to the Tribunal being provided with multiple copies of the later protection visa interview (that of 16 November 2016, which it already had in its possession), and after further requests for the 6 June 2011 interview made to the Department, the Tribunal was instead provided with numerous Compliance interviews with the applicant. It had regard to those interview notes provided to it, noting that there still was no record of any interview on 6 June 2011.

Further, the Tribunal notes that the agent provided to the Tribunal a copy of her letter of 16 November 2015 (to the Department) which letter noted the Department’s reference to the applicant and [Ms A] having a relationship (such that the applicant was the father of the child). There was no other reference to this in the Departmental files which were initially provided to the Tribunal; but information in this regard did appear in the Compliance files which were subsequently provided to the Tribunal by the Department as referred to in the above paragraph.

Finally, it was specifically suggested, as part of the s.424A response in relation to the information about the applicant’s sister, the Tribunal was involved in “energetic” searching of records “to find inconsistency, no matter how minor”, and that this leads to apprehended bias. The Tribunal does not accept these assertions. The Tribunal notes that this submission is made in the face of inconsistencies in the evidence (it was not denied that the evidence on its face was inconsistent), as well as an omission in the applicant’s document, which the agent subsequently said was her fault. The Tribunal notes an obligation to put matters of concern to an applicant, providing him with an opportunity to respond; the Tribunal did not engage in “energetic searching” of the Departmental file relating to the protection visa application; it simply considered the evidence on the file, sought what appeared to be missing, and considered that some of it should be put to the applicant, which it did, granting him an opportunity to explain and respond to issues or information considered relevant at the time. In summary, the Tribunal has presented evidence and information to the applicant as part of its duties of procedural fairness.

A further suggestion of apprehended bias raised in the s.424A again related to the Tribunal raising a concern with evidence. The Tribunal had noted that on the one hand the applicant had told the delegate at a Community Status resolution interview that in China he has not used another name because he was scared that if he was caught he would be worse off for having used a false name. He also said more generally that he had never been known by any other name. The Tribunal considered that this appeared different to the applicant’s evidence to the Tribunal that he had given the North Korean authorities a false name which had been used for 20 days while he was incarcerated and investigated and harmed. The Tribunal put to the applicant pursuant to s.424A of the Act that the evidence to the Tribunal indicated that he had been known by a name other than [applicant’s name], and it would think that he would have remembered this when talking with the delegate on 15 December 2011. In response it was stated that raising a concern leads to an apprehension of bias on the part of the Tribunal; the Tribunal does not agree with this. It considers that it had an obligation to put this information pursuant to s.424A of the Act and it notes that the applicant was given an opportunity to comment or respond.

The response also took issue with the use of the word “have” when the Tribunal was explaining the relevance of the information, with the response suggesting that this word also indicates apprehended bias because the Tribunal has come to an “actual conclusion” that “this undermines the claims and credibility”. The Tribunal does not accept this assertion, noting that, prior to presenting the s.424A information in the letter, it states: “In conducting

the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review. Please note, however, that we have not made up our mind about the information.” The Tribunal does not accept that, in providing the applicant with the relevance of the information and later the consequence if the Tribunal relies upon the information, it has indicated to the applicant that it has formed an actual conclusion as to his claims and credibility before he has responded.

The Tribunal did not, in the end, consider that it should rely upon the information, accepting that there could be a distinction between giving a false name, and being known by a false name. It does not however accept the assertion that raising this concern supports the agent’s allegation.

A later request was made for the Tribunal to recuse itself on the basis of apprehended bias. As set out in the Tribunal’s response to the applicant, the Tribunal believes that it has been able to bring a fair and impartial mind to the decision-making process, and that a fair-minded and appropriately informed lay observer would not reasonably apprehend the Tribunal might not bring a fair, impartial and independent mind to the review. The Tribunal therefore declined the request to recuse itself.

FINDINGS ON THE APPLICANT’S CLAIMS

The applicant’s nationality

The Tribunal does not accept that the applicant is a witness of truth in relation to the majority of the matters relevant to his claims and background. His most significant claim is that he was born and raised in North Korea; the Tribunal is not satisfied as to this claim. It does not accept that he has been truthful in relation to his place of birth, where he was raised, his parents’ and grandfather’s places of birth and where they were raised. The Tribunal does not accept that he lived and worked in North Korea, nor that he escaped North Korea, nor that he was ever held captive in China nor that he ever returned to North Korea and was detained and escaped, nor that he remained in China in fear and unlawfully. For the reasons set out above, the Tribunal is not satisfied that he is a North Korean citizen or national nor that North Korea is his place of former habitual residence.

The Tribunal is prepared to accept that he is ethnic Korean, and that he resided in China for a significant period of time. The applicant said that he arrived in Australia from China, holding a Chinese passport, in March 2011. He claims that he no longer has the passport, and that it was a false passport as he does not suggest that he is a Chinese citizen.

The Tribunal finds that North Korea is not the applicant’s country of nationality or his place of former habitual residence. Given the lack of credible information before it, the Tribunal is not able to make a positive finding on the applicant’s nationality, and because he has made claims that he faces harm because of his North Korean nationality, this is not a case where it is necessary for the Tribunal to do so.33

The Tribunal notes that the applicant’s claims in relation to South Korea and China are predicated upon him being a North Korean national, which the Tribunal does not accept. If the applicant were a citizen from either of these countries (which is denied by the applicant), the Tribunal would not be satisfied that, on the evidence before it, he faces a real chance of

33 See Hussaini v MIMA [2002] FCAFC 10 (French, Merkel and Gyles JJ, 14 February 2002) at [11]–[13]; Raza v MIMA [2002] FCAFC 82 (French, Merkel and Gyles JJ, 28 March 2002) at [22]; Moqbool Hussain v MIMA [2001]
FCA 523 (Carr J, 4 May 2001),.

serious harm or a real risk of significant harm if he returned to either of these countries. Further, he has not claimed to be stateless, and the Tribunal does not accept that he is.

Although the evidence may seem to point to the applicant possibly being a Chinese citizen (including his evidence that he arrived on a Chinese passport) of Korean ethnicity, the Tribunal is unable to make a positive finding in this regard.

The Tribunal has found a lack of credible information as to the applicant’s nationality.

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.

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 he 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).

DECISION

The Tribunal affirms the decision not to grant the applicant a protection visa.

Christine Cody Member

ANNEXURE A RELEVANT LAW

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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

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).

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.

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.

There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

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.

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.

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.

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.

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

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’).

‘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.

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

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.

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.”

ANNEXURE C: : JUNE 2015S

Language of Koreans in China

Most ethnic Koreans in China speak Mandarin Chinese and many also speak fluent Korean as their mother tongue. Most Chinese of Korean descent have ancestral roots and family ties in the Hamgyong region of North Korea and speak the Hamgyong dialect of Korean according to North Korean conventions.

Koreans use one set of words when speaking to an older person and another set of words when speaking to a younger person. The same is true when a person of high status converses with a person of low status. Korean also use one set of words when speaking to members of their family members and a different set when speaking to outsiders. There is even a whole set of words reserved for speaking to Korean royalty. Different regions of Korea have different dialects with distinct pronunciation and vocabulary. Hangul, the Korea's phonetic alphabet, is perhaps the world's clearest and most logical alphabet. It is consists of 24 phonetic symbols and 40 elements that are linked with sounds in the Korean language. Unlike English, there are no tricky spellings or unclear pronunciations.

History of Koreans in China

The ancestors of the Koreans in China today are Koreans who settled in northeast China from the Korean Peninsula, which is south of northeast China to the south of the Yalu and Tumen Rivers. The earliest Korean settlers can be traced back to more than 300 years ago. Many emigrated from Korea during the 19th century, and again during the Japanese Occupation in the early 20th century. In the 1860s, a series of natural disasters struck Korea, leading to deadly famines. Along with the Qing dynasty's loosening of border controls and acceptance of external migration into Northeast China, this pushed many Koreans to migrate. By 1894, an estimated 34,000 Koreans lived in China, with numbers increasing to 109,500 in 1910. [Source:
~ Wikipedia]

Koreans in both China and Korea suffered during the Japanese occupation of northeast China and Korea. They were forced to speak the Japanese language and adopt Japanese surnames and some were put to work as forced labor in mines and factories. After the Japanese were forced out of Korea and China in 1945, there was a resurgence of cultural awareness among the Koreans. Newspapers in the Korean language sprang up, including the Jilin Daily (later renamed the Yanbian Daily), Heilongjiang Daily and the Liaoning Daily. In 1947, the Yanbian Korean Publishing House was founded in Yanji, and the Yanbian People's Radio went on the air. Special Korean programs are also aired by the Central People's Broadcasting Station and the Heilongjiang People's Broadcasting Station. [Source: China.org china.org *|*]