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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1517016 (Refugee)

Details

AGLC: 1517016 (Refugee) [2018] AATA 5367
Case: [2018] AATA 5367
Decision Date: 30 October 2018

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a person claiming to be from North Korea. The applicant asserted a fear of torture or killing if returned to North Korea, and also raised concerns about potential employment discrimination in South Korea, where he claimed to have dual nationality. The decision under review was made by the Refugee Review Tribunal, and the applicant sought judicial review of that decision in the Federal Court.

The primary legal issues before the court were whether the applicant was a national of South Korea, and consequently, whether he was barred from making a protection visa application under section 91P of the Migration Act 1958 (Cth). The court also considered the applicant's credibility, particularly in light of inconsistent evidence provided regarding his background and family details, including his father's place of birth, which was argued to be significant for determining dual nationality. The court was required to determine if there was sufficient evidence to support a finding of South Korean nationality and to assess the overall credibility of the applicant's claims.

The Tribunal found that the applicant was not a credible witness, noting significant inconsistencies and changes in his evidence concerning his background, past persecution, and future fears. While acknowledging the Federal Court's previous remittal of the matter due to insufficient evidence regarding nationality, the Tribunal concluded that its own task was not restricted in assessing nationality. The Tribunal considered expert evidence which stated that both North and South Korea apply the principle of *jus sanguinis*, meaning a child acquires citizenship if at least one parent is a citizen. Despite this, the Tribunal was not satisfied with the applicant's evidence regarding his nationality and background details, leading to a cumulative basis for finding him untruthful.

The Tribunal affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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. 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. 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. 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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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