Lee, Choong Kyoo v Minister for Immigration and Multicultural Affairs

[1998] FCA 487

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 879 of 1997

BETWEEN:	CHOONG KYOO LEE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		SACKVILLE J
DATE:		1 MAY 1998
PLACE:		SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:   In these proceedings, which have been listed for hearing today, Ms Hong has sought leave to appear for the applicant in order to seek an adjournment on his behalf.  Ms Hong has told me that she is an employee of a company Sunsco Pty Limited.  She has also told me that the principal of Sunsco Pty Limited is Mr Edwin Hong, a registered migration agent.  Ms Hong herself is not a registered migration agent.

Despite the fact that Ms Hong is not a registered migration agent, I granted her leave to make representations on behalf of the applicant as to why an adjournment of these proceedings should be granted.  She has done so.

The application in this matter was filed in the Court on 22 October 1997.  The application sought review of the decision of the Refugee Review Tribunal (“RRT”) made on 26 September 1997.  The RRT affirmed the decision of the Minister's delegate that the applicant was not a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees.  The application stated that the applicant was aggrieved by the decision because he would be compelled to return to Korea if the decision stood and because he had a well-founded fear of persecution if compelled to return to Korea.

The ground upon which review of the RRT's decision was sought was that the decision involved an error of law.  The 'particulars' to this ground claimed that "the Tribunal erred in its application of the law to the facts of the applicant's case". 

From the Court file it can be seen that the matter came on for directions on 21 November 1997, before another Judge of this Court.  On that occasion, the Minister was ordered to file and serve affidavits by 5 December 1997.  In fact, an affidavit was filed on behalf of the Minister on 8 December 1997.  The applicant, who appeared with his daughter at the directions hearing, was ordered to file and serve affidavits upon which he intended to rely by 2 January 1998.

On 27 February 1998 the matter was again before the Court for a directions hearing.  The applicant had not complied with the direction to file affidavits and did not appear on 27 February 1998.  On that day, orders were made that the applicant file and serve by 30 March 1998 any affidavits upon which he intended to rely.  The matter was set down for hearing on 1 May 1998.  Orders were also made for the filing of an outline of submissions on behalf of the Minister. 

The orders made on 27 February 1998 provided for my associate to forward a letter to the applicant, at his address for service, notifying him of the orders that had been made.  A letter was sent on 27 February 1998, in the following terms:

“A directions hearing in this matter took place on 27 February 1998.  On that date, his Honour made the following orders:

1.The applicant must file and serve any affidavits on which he intends to rely on or before 27 March 1998.  (You are the applicant.)

2.By 4 pm on 27 April 1998, the Respondent (the Minister for Immigration and Multicultural Affairs) must file with his Honour’s associate and provide to the applicant a written outline of submissions on which the Minister intends to rely.

3.The parties have liberty to apply to the Court on 3 days notice.

His Honour confirmed that the final hearing would take place on 1 May 1998.  This is the date on which your application will be decided by the Court.

A copy of this letter has been sent to Mr S Tesoriero, the solicitor for the Minister.”

On 24 April 1998, a letter was received by my associate from Mr Edwin Hong.  Mr Hong described himself in that letter as Mr Lee's "friend".  It appears from what Ms Hong has had to say today that Mr Hong may well have written that letter in his capacity as a registered migration agent.  If that is correct, the letter is misleading in its description of Mr Hong's relationship to Mr Lee.  Be that as it may, the letter contains the following paragraphs:

“Yesterday Mr Lee called me in Seoul and asked me to write this letter on behalf of him.  The problem is the hearing date.  Currently, his work in Rockhampton, in far North Queensland has not been completed.  This contract was scheduled to be completed well before the month of April.  However, due to the problem of getting supplies and welders/boilermakers within the region, the contract will be stretched well over the month of May.

Please allow Mr Lee a further extension on hearing date until July 1998.  Mr Lee will be deeply appreciated [sic] if allowed.”

My associate replied on 24 April 1998 as follows:

“I refer to your letter of 24 April 1998.

His Honour has asked me to point out to you that the matter has been listed for hearing on 1 May 1998 for a considerable time.  The Court, and presumably, the respondent have been proceeding on the basis that the hearing on 1 May 1998 will take place as scheduled.

His Honour’s present view is that the matters referred to in your letter are not sufficient to warrant the postponement of the hearing.  Mr Lee has known about the hearing date for a considerable time and it is his responsibility, if he wishes to present his case, to be present in Court on the appointed day.

If an application for adjournment is made by or on behalf of Mr Lee at the hearing, His Honour will consider that application at the time.  However, I wish to stress that Mr Lee should not assume that any application for adjournment will succeed.  If any application does not succeed, the matter will be heard.  This means, if Mr Lee does not appear, the matter may be decided finally in the absence of Mr Lee.

Since you do not appear to have sent a copy of your letter to the Australian Government Solicitor, I am forwarding a copy of your letter and this reply to the Australian Government Solicitor.”

On 28 April 1998 Mr Hong wrote a further letter containing the following paragraphs:

Mr Lee has been away for more than four months from December 1997.   Furthermore, he work in Rockhampton, in far North Queensland has not been completed.  This is a big problem for Mr Lee to properly present his case to the court on the appointed day.  Mr Lee has a family to look after and this means he must work very hard as a boilermaker/welder wherever there is work.  Therefore, if the court forces Mr Lee to appear on the appointed day he would be very much disadvantaged due to the lack of preparation time.

Please allow Mr Lee, a further extension on hearing date until July 1998.  This will be Mr Lee's final request for an extension.

My associate replied to that letter on the same day, stating as follows:

“His Honour is of the view that these matters were addressed in my letter of 24 April 1998 and there is nothing further to add to that information.

Since you do not appear to have sent a copy of your letter to the Australian Government Solicitor, I am forwarding a copy of your letter and this reply to the Australian Government Solicitor.”

Ms Hong puts forward three grounds for the adjournment.  First, she says Mr Lee will suffer financial hardship if the hearing proceeds. Secondly, she says Mr Lee is tied up with his work in Rockhampton.  Thirdly, she says Mr Lee wants the opportunity to discuss his case with Mr Hong, presumably in Mr Hong's capacity as a migration agent.  Mr Hong has been overseas for the last ten days or so and will be overseas for a further period of time.

There is no evidence in support of the adjournment application, other than the matters asserted in the correspondence to which I have referred. From the bar table, Ms Hong stated that Mr Lee's earnings were $498 net per week.  It is unclear from the correspondence sent to the Court on Mr Lee's behalf and from anything said by Ms Hong, why Mr Lee would encounter major difficulties in travelling to Sydney for a single day in order to attend the hearing.  Ms Hong, again from the bar table, informed the Court that Mr Lee's family is in Sydney.

In the absence of any additional evidence, I am not prepared to find that Mr Lee's employment or contract would be placed in jeopardy by the requirement that he travel from Rockhampton to Sydney in order to attend a hearing, the date of which he has known for at least two months.   Nor am I prepared to find, in the absence of any evidence, that the requirement that Mr Lee attend the Court would impose undue financial hardship on him.  To the extent that the material stated from the bar table can be taken into account at all, it does not suggest that Mr Lee's financial position is such that travel to Sydney was simply not feasible from a financial point of view, bearing in mind his knowledge of the hearing date and the importance of the proceedings.

It does not seem to me that any cogent case has been made out for adjournment of this matter.  Even so, I think I should consider the material filed in support of Mr Lee's application, together with the affidavit filed on behalf of the respondent to ascertain the apparent strength, or lack of strength, of the applicant’s case.  This is a factor that should be taken into account in determining whether an adjournment should be granted.

It appears from the file that the applicant is a citizen of the Republic of Korea who arrived in Australia with his family in May 1990.  On 11 April 1995, he applied for a protection visa.  His wife and children did not make separate claims under the Convention but were included as part of the applicant's family unit and, consequently, their application was combined with his.

In his application, the applicant claimed that he left South Korea because he feared persecution due to his anti-government activities in 1979 and 1980.  He claimed that he left South Korea because he was under "the constant fear of being to be persecution [sic] for [his] anti-military government activities".  He also claimed that he had participated in an uprising and that he had called for the end of the military ruled government.  He claimed further to have been "listed as [a] political dissident by the military Security Agency".  He said that his past record as a dissident would affect him and his family on return and that this was so even though fundamental changes had taken place in Korea since he had left. 

The applicant provided further details of his claim at an interview with the Minister's delegate on 25 March 1996.  In summary the applicant claimed that

• in February/ March 1980, he was arrested and detained for three days for attending a demonstration and marching in the front line;

• in about June 1980, he was arrested and detained for three to four days as a suspected organiser of the student demonstration;

• in 1981, he was sent to a re-education camp for three months because of his participation in political activities and on his release he suffered from mental instability which affected his ability to undertake work continuously; and

• after his release from the re-education camp he was subjected to constant surveillance and on one occasion his home was searched by military security personnel.

On 17 July 1996, the Minister's delegate refused the application.  The delegate said this:

“I accept that the applicant's past experiences as set out in the claim may be characterised as persecution.  There has however been a "material" and "substantial" change in the political climate in South Korea....the circumstances of military rule which coincided with the applicant's experiences of persecution have ceased to exist.”

The delegate noted that the applicant had left Korea on a passport in his own name.  The delegate did not accept that the applicant was able to leave Korea because the Government wanted to be rid of him.  The delegate considered that the applicant would not have been able to leave the country twice, without any apparent difficulty, if the authorities had any adverse interest in him.  Nor did the delegate accept that the Korean government was interested in the applicant because of his involvement in labour union activities.  In the result, the delegate concluded that the applicant's fear of persecution on return to Korea was not well-founded and that he was not a person to whom Australia had protection obligations under the Convention.

On 16 August 1996, the applicant applied to the RRT for review of the delegate's decision.  This application was accompanied by a document in which the applicant set out the case he intended to make.  He claimed that he would be under the great fear of psychological imprisonment and persecution for the following reasons:

“A.    I fled the country of origin with my family abandoning of my basic human rights, my property and my protection right on the cause of intolerable political gaps between the military government and myself.

B.     My psychological effect rooted by the hatred of the military regime lost my love and respect to the country of my origin and composed my personality to be hardly sustainable to the political system and the society of the country.

C.     My lapse time period which is caused by the intolerable political opinion and the present my characteristic stand be hardly accepted and accommodated into the existing political system as a genuine citizen of the country of origin.”

The RRT conducted a hearing on 19 September 1997 with the assistance of a Korean language interpreter.  On 26 September 1997, the RRT affirmed the delegate's decision.  The RRT, in its reasons, which are  carefully compiled, set out a summary of the political situation in South Korea from 1980 to 1997 and specified the claims made by the applicant. 

The RRT noted that material had been provided to the applicant in advance of the hearing regarding the changes which had taken place in Korea since he first came to Australia in 1990.  That material referred to the fact that one of President Kim Young-Sam's first acts had been to grant a general amnesty to persons punished for politically related crimes.  The material also indicated that prominent dissidents had been free to participate in politics and that many former student activists who had been jailed for their part in the illegal demonstrations in 1980 were now members of the National Assembly. 

The RRT put to the applicant that there was nothing in the material before it which would suggest that persons expressing views other than those proscribed by the National Security Law (relating to Communist or pro-North Korean ideology) or those who participated in violent demonstrations would be liable to arrest or detention. The RRT's reasons contain this significant passage:

“At the hearing the applicant said that he had had the material which [the RRT] had provided to him translated to him and that he accepted what was in the material.  As a result he did not think that he came within the definition of a refugee in the Refugees Convention. Specifically he said that he did not fear that he would be persecuted as a result of his past record as a political dissident if he were to return to Korea.  He said that when he had left Korea in 1990 to come to Australia he had feared that he would be persecuted but that as a result of the changes which had taken place in his country since that time he no longer had this fear.

The applicant said that his concerns now related to the difficulty that he, and more particularly his family, would have in adapting to life in Korea after having been out of the country for over seven years.  His two children had become integrated in Australian society and were doing quite well.  He himself was licensed and accredited by the Government and had been working in the construction industry.  He said that he had bought a property only last month and that it would be difficult to leave all this behind.”  (Emphasis added.)

It is hardly surprising, in the light of these observations, that the RRT found that the applicant did not have a fear that he would be persecuted on the basis of his political opinion if he returned to Korea at the time of the decision or in the foreseeable future.  The RRT, again not surprisingly, found that, as the applicant had acknowledged, the changes which had taken place in Korea since he had left that country removed the basis for his fear of persecution.  Accordingly the RRT was not satisfied that the applicant had a well founded fear of being persecuted for a Convention reason if he returned to South Korea.  It followed that he was not a person to whom Australia had protection obligations under the Convention.  The RRT therefore affirmed the decision not to grant the protection visa. 

In the light of these reasons, it is extremely difficult to follow the basis of the applicant’s claim that the RRT had erred in law in assessing his application.  The application provides no information in this regard, other than the bald assertion that the RRT's decision was attended by an error of law.  The applicant has not filed any evidence that would suggest that there has been any error in the RRT's determination, despite being directed to file affidavits in support of his case.  The material filed on behalf of the respondent does not appear to advance the applicant’s contentions.  Nor has any other material been provided to the Court, whether by way of correspondence or through Ms Hong, to suggest that the applicant has an arguable case for setting aside the RRT's determination. 

As I said earlier, even though the applicant appears to me not to have made out any cogent case for an adjournment, I might have extended additional time, albeit reluctantly, if it appeared that he had an arguable case that an error of law had occurred.  However, the material before the Court contains no such indication.  On the contrary, the decision appears to be one that the applicant himself accepted was the appropriate determination.  For these reasons I decline to grant the adjournment that has been sought.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville

Associate:

Dated:            1 May 1998

Applicant:	Unrepresented
Solicitor for the Respondent:	Mr A. Pearson Australian Government Solicitor
Date of Hearing:	1 May 1998
Date of Judgment:	1 May 1998