SZBOV v Minister for Immigration
[2005] FMCA 589
•3 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBOV v MINISTER FOR IMMIGRATION | [2005] FMCA 589 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to take into account relevant considerations or ignored aspects of the applicant’s claim. |
| Migration Act 1958, ss.91R and 91R(3) |
| Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58 |
| Applicant: | SZBOV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2072 of 2003 |
| Judgment of: | Barnes FM |
| Hearing date: | 3 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 3 May 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr JD Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application is dismissed.
That the applicant pay the respondent's costs set in the amount of $4,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2072 of 2003
| SZBOV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 16 September 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.
The applicant is a citizen of South Korea who arrived in Australia on 22 September 2001. He applied for a protection visa on 13 December 2001. That application was refused and he and his de facto spouse sought review by the Tribunal. The applicant claimed to have been born in North Korea and to have worked as a police officer until he and his family were classified as ‘reactionary elements’ and he was sent to work as a coal miner. He escaped North Korea in 1995, entered China and stayed illegally until May 1997. In China he was wanted for having formed a group called the North Korean Defectors Human Rights Association. From China he went via Vietnam to South Korea in August 1997 as a defector from North Korea.
He claimed that after he arrived in South Korea he was detained for six months and tortured by the South Korean CIA and that after release from detention he was monitored and his liberty restricted. Those with whom he associated were questioned and harassed. He was granted citizenship of South Korea in February 1998 but claimed that it took a number of attempts and a long time to obtain a passport and that because he had contacted the major opposition party, the media and human rights associations for help this prompted the CIA to take him in again and beat him. Eventually he obtained a South Korean passport for a one year period, travelled to Hong Kong in September 2001 and then to Australia. He claimed that he could not return to either North Korea or South Korea. In particular he claimed that he would be discriminated against in South Korea because of his former nationality of North Korean. He claimed that he also claimed to fear mistreatment or detention in South Korea for having sought protection in Australia, and for protesting and disclosing the nature of the treatment of North Korean defectors by the South Korean security services.
The applicant attended a Tribunal hearing on 11 August 2003 which was conducted with the assistance of an English/Korean interpreter. According to the reasons for decision, the Tribunal confirmed its understanding of the key elements of the applicant’s claim by reading a précis to him which, subject to certain comments, the applicant accepted as a fair summary of his situation and claims.
The Tribunal accepted without reservation the applicant's claims about his experiences before his arrival in South Korea. It accepted that fears he held about what might happen to him were he to return to North Korea were justified. However, it also accepted his statement, supported by his passport, that he was now a citizen of South Korea. It found that there was no chance that he would be returned to North Korea against his will and assessed his claims for protection against his country of current citizenship, South Korea.
The Tribunal found the applicant's claims about his detention and interrogation after arrival in South Korea to be consistent with independent country information to which it referred. It accepted that he was detained and interrogated and, as part of that process, physically assaulted and verbally abused. However, it found that by granting him citizenship the authorities accepted that he was a bona fide defector and not a spy and that therefore he was not at risk of further interrogation for that reason.
It also accepted that he was the subject of close monitoring and surveillance immediately after his release, consistent with independent evidence. However it found that independent evidence indicated that such monitoring was aimed at protecting defectors from possible North Korean reprisals not as a means of repressing them. It recognised that even well-intentioned actions may in some circumstances be considered persecutory. However, taking an overall view of the applicant's circumstances, it did not consider that the discriminatory treatment he had experienced was such as to constitute serious harm. It had regard to the fact that much of the discriminatory treatment could be considered positive discrimination (for example in relation to employment, education and housing). Independent evidence was contrary to the applicant’s claim as to denial of employment in the public sector. The Tribunal found on the basis of such independent evidence that the applicant had not been denied public sector employment because of his background and that he had not been denied employment, having been able to earn sufficient income to fund his trip to Australia.
The Tribunal also considered the applicant’s complaint in relation to the issue of a one year rather than a five year passport. It accepted that he had been treated differently to other South Korean citizens in this regard, but did not consider that such discriminatory treatment amounted to serious harm constituting persecution having regard to the examples of such harm in section 91R of the Migration Act 1958 (C’th). It had regard to the absence of evidence of any resulting practical difficulties and to the fact that a subsequent passport had been issued to the applicant. It found that the discriminatory manner in which North Korean defectors are treated in South Korea once they are released from detention does not amount to persecution.
The Tribunal also referred to independent evidence in relation to a lawsuit launched by North Koreans in an attempt to obtain increased benefits citing human rights abuses. The applicant had referred to such action. The Tribunal found that the litigants were free to pursue their lawsuit. It was not aware of any evidence to suggest that they were mistreated by the government because of their actions and considered that the Government would have no incentive to initiate such mistreatment because of the adverse publicity which would inevitably follow. On this basis it found that the applicant would be able to protest what he saw as unfair treatment if he were to return to South Korea, without adverse action by the authorities.
The Tribunal also considered the applicant's claims to have contacted media outlets in Australia to publicise his actions in lodging an application for a protection visa and to have contacted the Korean Consulate in Sydney asserting it was his intention to renounce his citizenship of South Korea. The Tribunal accepted that these events had occurred, but for reasons it gave, was of the opinion that the applicant did these things in order to be able to claim that if returned to Korea he might be adversely regarded for having sought protection and publicising his situation. As it was not satisfied that this conduct was for reasons other than strengthening his claims to be a refugee it found that because of section 91R(3) of the Migration Act it was obliged to disregard the conduct of the applicant drawing attention to his situation while in Australia.
The Tribunal also referred to information that the applicant had produced in relation to alleged abuses by the security authorities of Korea. It found that while that material may indicate a cover-up of a crime by the Korean CIA, it had found that the applicant had satisfied the authorities of his bona fides and would not be adversely regarded because of his background and could protest what he saw as inequities without risking adverse treatment. In these circumstances the Tribunal did not consider the particular case referred to or the reputation of the South Korean security authorities to be relevant to the applicant's current or future situation. It found that his fear of persecution in South Korea was not well-founded.
The applicant sought review of the Tribunal decision by application filed in this court on 7 October 2003. There were no grounds contained in that application other than a statement that the applicant was seeking legal advice. However, he filed an amended application on 26 March 2004 which raises four grounds.
The first ground alleges that the Department and the Tribunal:
ignored circumstances and reality in South Korea and only relied on the record that the DIMIA and RRT had at the time and subsequently made incorrect decisions. In 2002, there has been a death of a person, who had been detained in an underground cell, while questioned by the South Korean Public Prosecutors Office. The death occurred during the intense ‘questioning’ and arose from the torture inflicted on that person by the South Korean Public Prosecutors Office. This incident caught the attention of the media and became well known by the public. This incident is relevant in determining the refugee status of the applicant and is an important point to be taken into consideration for the applicant’s application to the DIMIA claiming to be a refugee. However this was ignored by the respondent.
There are a number of difficulties with this claim. First, it is not clear how the death of a person held in detention by the Public Prosecutors Office has anything to do with the applicant’s claim to fear the CIA. Secondly it is not clear on the material before the court that such a claim or ‘fact’ was indeed before the Tribunal or the delegate.
The reasons for decision refer generally to the applicant’s reference to untranslated material from the internet about problems North Korean defectors had in South Korea – which the applicant said showed defectors were demanding that the government stopped encroaching on their human rights and granted them the same freedom as other citizens. The Tribunal referred to particular documentation that the applicant produced in relation to alleged abuses by the security authorities of Korea (a 1987 murder of a Korean citizen alleged covered up by the CIA). It addressed both the internet material and the specific 1987 incident in its findings about the particular circumstances of the applicant, in particular that he had satisfied the authorities of his bona fides and would not be adversely regarded because of his background and that based on independent information about lawsuits he could protest what he saw as inequities without risking adverse treatment. Hence it did not consider the 1987 case or the reputation of the security authorities as relevant to the applicant’s current or future situation. These findings addressed his claims about those whom he claimed to fear.
The applicant contended that the Tribunal inappropriately found irrelevant to his case the evidence that he put forward in support of his claims. It has not been suggested that the Tribunal misunderstood or did not consider his claims to fear detention, other discriminatory mistreatment or discrimination in employment or monitoring by the South Korean authorities and indeed such claims were dealt with by the Tribunal. Rather his claim is that the Tribunal did not refer to a specific item of evidence. Even if such evidence was in fact before the Tribunal, I am not persuaded that the absence of any express reference in the reasons for decision to evidence of any person dying in detention in 2002 does in fact constitute a jurisdictional error.
The absence of an express reference to a particular item of evidence in the statement of reasons does not mean that the Tribunal did not consider the applicant's claims and the evidence before it. The Tribunal properly set out its findings and the evidence on which it relied to make such findings. It also set out reasons why it did not consider the documentation produced by the applicant about the reputation of the security authorities to be relevant to his current or future circumstances. It is not necessary for the Tribunal to refer to every item of evidence before it. It has not been established that the manner in which it made its findings in relation to the applicant's claim to fear persecution in South Korea because he could point to the fact that others were persecuted in South Korea involved a jurisdictional error. The Tribunal considered this claim and rejected it.
The fact that the applicant takes issues with the Tribunal's findings of fact does not establish a jurisdictional error. As I pointed out to the applicant merits review is not available in this court. The first ground does not establish a jurisdictional error. Further as the decision under review is the Tribunal decision it is not to the point whether or not the delegate ignored relevant material. The Tribunal decision is not affected by any invalidity of the decision it reviewed (see MIMIA v Ahmed [2005] FCAFC 58).
The second ground relied upon is:
“At the same time, South Korean government discriminated North Korean defectors, who spoke out about equal opportunity and freedom and South Korean government threatened and detained them. Many of these people took the matters to the courts on the grounds of human rights violation but the courts did not take them seriously and judges made incorrect and unjust judgments. These incidents are also very important points that must have been taken into consideration when assessing the applicant’s application to the DIMIA. However the respondent did not consider these points.”
However, the Tribunal did consider the applicant's claims of discrimination against North Korean defectors in South Korea but found that such discriminatory treatment did not amount to persecution having regard to section 91R of the Migration Act. It also had regard to the applicant's claims in relation to North Koreans bringing lawsuits but found that there was no evidence to suggest that such persons were mistreated by the government because of their actions. The applicant's complaint that the judges in these cases made what the applicant considers to be incorrect and unjust judgments does not establish a jurisdictional error on the part of the Tribunal. Again the applicant's complaint is essentially with the findings of fact by the Tribunal.
The third ground is that:
DIMIA and RRT did not consider persecution that could arise to the applicant from a change in the South Korean Government's policy in the short and long term and made decisions that were contrary to the conclusion adopted by the Executive Committee of the UNHCR programme (EXCOM). DIMIA and RRT did not consider harms and persecutions that can arise if conservative opposition party became the Government and practice what they used to, such as unjust imprisonment, violence and torture. At that time, South Korea was in very volatile period because of collision between conservative movement and advance movement. If the applicant was to return to South Korea, the applicant could have faced torture, unfair, brutal, inhumane treatment, and his freedom could have been taken away from him. Therefore this is relevant when looking at a well-founded fear of persecution. However, the respondent ignored these aspects considered the matter without reference to these points. Further, in doing so, RRT ignored Procedure and Criteria for Determining Refugee Status and made a decision that is in contradiction to the Law.
There is nothing on the material before the court to suggest that these matters needed to be considered by the Tribunal in the manner contended. The Tribunal considered the current circumstances in Korea and made its decision on the basis of those circumstances as it understood them from the independent material. There is nothing in the material before the court to suggest that it was part of the applicant's claim or arose from the evidence he put before the Tribunal or on the material before the Tribunal that there was a potential for change in the government's policy or a change of government which would put him in further danger. Indeed, it was the applicant's case that the current policy in South Korea put him in danger. Again this ground does not establish a jurisdictional error.
The final ground in the amended application is:
“The respondent was incorrect in making their decisions in relation to the violation of the applicant’s civil rights. According to the Passport Act of South Korea, there should be no discrimination or restriction in obtaining South Korean passport unless a person is a criminal or a dangerous person. The applicant still has not been issued with a 5-year passport that the applicant insisted on. This is simply because of the applicant is from North Korea. This is a persecution arising from nationality and such matter is regarded as violation of human rights according to the UN Refugee Convention. Such discrimination by the South Korean Government is to inflict persecution threatening the applicant’s life when the applicant returns to South Korea. Such actions have been a common practice of the South Korean Government in the past. The respondent did not take these elements into consideration and as such, their dealings with the applicant’s case were unfair and unjust and contrary to the Refugee Convention.”
This ground addresses the applicant’s concerns that he was granted a one year passport in South Korea as opposed to a five year passport. He complains that this was discriminatory. The question of whether discriminatory behaviour (for whatever reasons) amounts to persecution is ultimately a question of fact and degree. It was considered by the Tribunal and rejected. The Tribunal did not fail to take this issue into consideration. There is nothing in the material before the court to suggest that its dealing with the applicant's case was unfair and unjust on this basis. The applicant also takes issue with the fact that he has still not been issued with a five year passport. However his complaints about what has occurred after the Tribunal decision do not establish that the Tribunal made a jurisdictional error.
In the course of the applicant's oral submissions, an issue arose as to whether he was taking issue with what occurred in the Tribunal hearing or with the findings of the Tribunal. Eventually the applicant clarified that he was not taking issue with the Tribunal account of what occurred in the Tribunal hearing but rather that his complaint was that the decision was not accurate, that the decision-maker had not shown common sense and that the Tribunal had not taken into account the circumstances and reality in South Korea. Such complaint does not establish jurisdictional error.
It is for the applicant to put his case to the Tribunal. In this instance the Tribunal made its decision on the basis of the material before it, including independent information, aspects of which had been put to the applicant for comment in a pre-hearing letter of 16 July 2003. Insofar as the applicant takes issue with the weight given by the Tribunal to particular items of independent information, questions of weight are a matter for the Tribunal. It has not been established that the Tribunal erred in its treatment of independent information in relation to the situation in South Korea. Further as I have indicated, merits review is not available in this court.
Accordingly, the application must be dismissed, as no jurisdictional error has been established by the applicant.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and the respondent seeks that he meet the costs of these proceedings. There is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent. However, in the absence of any explanation for why the costs sought are of that amount, I consider the amount of $4,900 somewhat excessive, given the nature of this and other similar matters. I consider that an appropriate amount is $4,250.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 12 May 2005
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