Park, Jong Gwan v Minister for Immigration & Multicultural Affairs

[1997] FCA 1567

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 451 of 1997
GENERAL DIVISION                 )   

Between:JONG GWAN PARK

Applicant

And:MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

EINFELD J SYDNEY 12 DECEMBER 1997

This is an application by Jong Gwan Park to review a decision of the Refugee Review Tribunal made on 14 May 1997 affirming the departmental decision that the applicant is not a person owed protection obligations under the Geneva Convention on Refugees.  The Tribunal heard Mr Park’s evidence and submissions at its hearing and made a review of the situation in Korea since the assumption of power by President Kim in February 1993 as the country’s first president in almost 30 years who was not a military officer. 

The claim made by Mr Park to the Tribunal was essentially in two parts.  One is that he is or was suspected by the Korean authorities of being an agent for North Korea and that if he returns he will be at least arrested and interrogated, possibly tortured, for that alleged association.  He denies the association; denies that he is an agent for North Korea; and says that any persecution of him on that ground would be entirely unjustified. 

The second ground is that he suffers from a medical condition, the details of which have been suppressed, for which either medical treatment is not available in Korea or would now be denied to him, possibly on the ground that he was a North Korean agent, or because he has been out of the country since 1986 and the authorities would not now treat him favourably in that regard. 

He also says in the written submissions handed in today that an application for refugee status made by a Korean national outside of Korea is in effect an act of treason against Korea.  That last submission does not appear to have been made to the Tribunal but I take it into account in any event although there is no evidence of it other than the statement of the applicant today.

It is important to emphasise that the applicant has been in Australia, apparently visiting with his sister, since 1985 or 1986.  He did not make his application for refugee status until December 1995.  The Tribunal did not base its conclusion upon that fact alone although, as it seems to me, it would have been quite a telling factor against the likelihood of the application being granted.  Rather, the Tribunal found that under the former military regimes in Korea prior to the election of President Kim, it is unlikely that a North Korean agent would be allowed to leave the country, because in order to obtain a Korean passport at that time and possibly even today, a police and security clearance is necessary.

The applicant told the Tribunal that his departure was made with the knowledge and presumably the permission of the security authorities provided that he returned within one month.  As it seems to me, it is unlikely that security authorities who were anxious to persecute the applicant would be prepared to show the compassion necessary to enable him to travel overseas with absolutely no certainty or guarantee that he would ever return.  The Tribunal placed emphasis upon the fact that since the inauguration of President Kim in February 1993, the human rights situation in Korea has improved significantly.  This view accords with the experience of the Court both in general informational terms and also in relation to evidence given in cases.  The very fact that the two previous military officer Presidents are at present in gaol on lengthy prison terms does suggest that there has been a substantial change in the attitude of the authorities towards corruption and violation of human rights.  I do not doubt that all abuses have been removed but there is now ample evidence that the Korean courts are demonstrating significant independence in their approach to violations of human rights which are brought to their attention. 

It is also the Court’s experience that under authoritarian regimes, there is a significant lack of efficiency and competence in record-keeping such that it is now quite unlikely that any of the people who were in office as potential torturers of the applicant when he left 11 years ago would still be there now, and that the records, if there were any, which related to him would be immediately accessible to the authorities in office today. 

Having heard the applicant, the Tribunal was satisfied that he had “exaggerated and embellished the seriousness and significance of his experiences”.  The Tribunal accepted that he was questioned in 1985 about his contacts with a person suspected of being a North Korean agent but that his release to travel abroad more than a year later without any further intervention in the meantime suggested that the authorities did not seriously suspect that he was an agent and that he should be persecuted as a consequence.  As the Tribunal rightly pointed out, if there was a record of the interrogation, it is now more than 12 years ago.  I add again that it is unlikely that that record would now be accessible or readily available to the authorities if he should return.

I have explained to the applicant, who is unrepresented and is addressing the Court through an interpreter, that in order to attract the Court’s intervention in this matter it is necessary for him to point to one or more legal errors made by the Tribunal.  I did not attempt to outline to him the limits of the legal errors now permitted by the legislation but invited him to address any legal error at all in the Tribunal’s decision.  He was unable or unwilling to do so and, for my own part, having read the Tribunal’s decision, I can see no basis at all for an assertion that the Tribunal’s conclusion that a real chance of persecution for a convention reason does not arise is tainted by legal error.

The Minister’s counsel has made some submissions in writing in which reference is made, as I believe correctly, to the fact that the claim in relation to the medical condition does not give rise to or support a claim for refugee status.  At best, that would provide a basis for Ministerial intervention on humanitarian grounds which, if it has not already been done, would on request be considered.  However, as it seems to me, the applicant’s claim for refugee status has no foundation in law on the facts found by the Tribunal.

I also pointed out to the applicant that if he returned to Korea and wished to make an application to migrate to Australia on one of the many grounds provided by the legislation arising out of the fact that he has a sister and other relatives in Australia, and the fact that Australia may be able to supply him with a degree of medical care for a condition which cannot be properly treated in Korea, the authorities would, no doubt, give consideration to the application.  However, as it seems to me, there is no basis at all for upholding the claim that he is entitled to refugee status at this time.  I therefore dismiss the application for order of review.

[AFTER DISCUSSION}

I order that the applicant pay the respondent’s costs.