SZFIG v Minister for Immigration
[2005] FMCA 1872
•23 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFIG v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1872 |
| MIGRATION – RRT decision – North Korean escaped to South Korea – fears of persecution if returned to South Korea – Tribunal finding about fears for family members remaining in North Korea – open to Tribunal and not unreasonable – no error found. |
Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 36(3), 36(4), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Minister for Immigration & Multicultural Affairs v Eschetu (1999) 197 CLR 611
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Paul v Ministerfor Immigration & Multicultural Affairs (2001) 113 FCR 396
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
SZDTZ v Minister for Immigration & Anor [2005] FMCA 1392
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297
| Applicant: | SZFIG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3747 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 25 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 23 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr K Andronos |
| Solicitors for the Applicant: | Gilbert + Tobin |
| Counsel for the First Respondent: | Ms S McNaughton |
| Solicitors for the Respondents: | Blake Dawson Waldron |
ORDERS
The Tribunal be included as second respondent.
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3747 of 2004
| SZFIG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 23 December 2004 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 27 October 2004 and handed down on 18 November 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A and has restructured the Court’s jurisdiction in relation to migration decisions. However, these amendments apply only to proceedings commenced on or after 1 December 2005 and the repeal does not affect the present proceeding (see Sch.1 cl.41, and Acts Interpretation Act 1901 (Cth), s.8).
Section 483A gives the Court the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). This is subject to limitations under Part 8 of the Migration Act, which have the effect that that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76]‑[77] and subsequent cases). I do not have power myself to decide whether the applicant’s claims should be believed, nor whether he qualifies for a refugee visa.
The applicant arrived in Australia in May 2003 on a South Korean passport containing a temporary business visa. He admitted that his passport was false, and claimed to be a North Korean national. While held in immigration detention, he lodged an application for a protection visa on 28 May 2003. At that time, and while his case was on appeal in the Tribunal, he was actively assisted by the Refugee Advice and Casework Service (Aust) Inc.
In a statement accompanying his visa application, he said that his father and brother had been involved in 1995 in a failed “revolution against the Kim family, called the 6th Army incident”. His father had been a policeman and had become a ship captain, and his brother was employed in the 6th Army as a labourer. They were both arrested and he guessed that they were dead. Their families had been harshly dealt with, and for six years he was under surveillance and subject to security searches and checks. His mother also had “difficult experiences”.
He said that in November 2002 his mother was arrested, and two days later he decided to flee North Korea by swimming across a river into China. He obtained a false Chinese identity card, and said “I happened to meet some missionaries” from South Korea who “decided to help me after hearing my story, and arranged a plane ticket for me to go to Seoul”. They also “fully supported me” for two months in China, and after he reached South Korea “it took about 2 months to get another South Korean passport and an Australian visa through the missionaries”, who paid for his ticket.
He said he had a sister who had been interviewed twice at work, and:
My sister was still alright when I left on or about [date], but I have not been able to contact her since. It is impossible to contact anyone inside North Korea. We have no home phone, and public phones are limited. I cannot send mail because it will be read by the authorities. As I have escaped from North Korea, that is another reason for the authorities to want to punish me, and it will bring further danger to my sister. I believe she would be killed.
… I did not bring my sister because she had no permit to travel with me to [the border]. I had a permit because of my business. … I do not know what will become of my sister. I never discussed my plans to leave North Korea with her … I am heartbroken that I could not bring her with me.
… I did not seek asylum in South Korea as North Korean spies would have learned of me, reported it back to our home region authorities, and my sister would then be killed.
… If I am returned to North Korea I will be killed because of my relationship to my family who are alleged to have been involved in the 6th Army Incident. The fact I have escaped North Korea will also see me imputed with an anti‑government political opinion. I will be publicly executed. Last year 7 people who escaped North Korea were returned from China by Chinese police and killed by the North Korean authorities.
The applicant’s advisors subsequently forwarded background information about “the purge of 6th Army Incident supporters, and persecution of defectors”. The applicant was also interviewed by a Department officer. A significant purpose of the interview was to attempt to verify his claimed identity as a North Korean, and the delegate indicated that she was satisfied as to this based on linguistic analysis and other matters. The applicant also gave some more details about his claims, including the information that he had been a manager of an exporter who “was allowed to travel freely for business purposes with other colleagues”.
The delegate identified “overwhelming independent evidence which points to North Korea’s extensive and systematic human rights abuses, including the use of forced labour, detention camps and the absence of personal rights and freedoms”. She was satisfied that the applicant’s “fear of Convention based persecution is well‑founded”. However, she said that she was satisfied that the applicant “has a legally enforceable right to enter and reside in South Korea and access effective protection in that country”. In effect, she found that the applicant was excluded from qualifying for a protection visa under s.36(2) of the Migration Act by reason of s.36(3). This provides:
Protection visas
…
36(2)A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
…
Protection obligations
36(3)Australia is taken not to have protection obligations to a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
36(4)However, if the non‑citizen has a well‑founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.
The applicant appealed to the Tribunal, where his advisors put at the forefront of his case a claim that “I do not have effective protection in South Korea”. In their pre‑hearing submission they said:
In essence, [the applicant] claims:
1.That he is a national of North Korea and has suffered persecution in North Korea because of his real / imputed political opinion and his membership of the particular social groups of his family and the people involved in / with the failed 1995 coup (both real and / or imputed membership).
2.[The applicant] fears being returned to North Korea because he would be imprisoned, tortured and most likely executed for the reasons set out above in paragraph 1.1.
We note that the DIMIA Decision found that [the applicant] has a well founded fear of persecution in North Korea.
3.[The applicant] fears that his family in North Korea have already been detained, questioned and tortured, imprisoned and / or executed, for the same reasons that he was persecuted (and fears being again persecuted for) as set out in paragraph 1.1.
[The applicant] has had no contact with any family member since he escaped North Korea and came to Australia in late 2002.
4.[The applicant] has grave fears about the ramifications of being sent to South Korea. He fears that his life and the lives of his family would be placed in serious danger if he were present in South Korea. He claims that his presence would quickly come to the attention of the North Korean authorities, and that he would be targeted by North Korean agents who would either:
(a)kill him;
(b)kidnap him and take him to North Korea; or
(c)use threats to harm his family in North Korea as a way of forcing him to return to North Korea.
He fears that one or more of these scenarios would happen in South Korea because of the reasons set out above in paragraph 1.1.
5.[The applicant] believes that the North Korean authorities will seriously harm his family if he is present in South Korea, and claims that he couldn’t bear being responsible for this.
The advisors also amplified the applicant’s claims about the position held by his father. They claimed that he had held a senior position in the government of North Korea for ten years, and “would have to be not only from the ‘core class’ but would also need to have the highest ‘loyalty rating’”. They identified four reasons why the North Korean government would be interested in the applicant, and sought to bring his claims within s.36(4):
1.He is a “Talbukja”, which is the Korean term for a person who escaped North Korea. Because he departed without the permission of the government, [the applicant] would be imprisoned, tortured and possibly executed. The available country information supports this claim.
The 2003 US State Department Report states that the “Penal Code makes defection and attempted defection capital crimes. Many would be refugees who were returned involuntarily have been imprisoned under harsh conditions; however, some have been executed.” The World Refugee Survey 2003 Report on North Korea states that North Korea “subjects citizens who are caught and forcibly repatriated to torture, placement in work camps, and even execution.” The US Committee for Refugees has stated that North Koreans who flee without permission have prima facie claims to refugee status, because of the politically motivated severity of the likely punishment if they are returned.
2.Not only is [the applicant] a Talbukja, he is also the son of a traitor: a senior, trusted government official who was involved in the 1995 Coup.
3.Because [the applicant] escaped, it is likely that the North Korean government would think that [the applicant] was himself involved in the 95 Coup, and / or that he is now (or was) involved in a similar political movement or Coup attempt.
4.The North Korean government would not want a person such as [the applicant], who has close ties to the people involved in the 95 Coup, to release information to the world about what happened.
…
Section 36(4) provides that if [the applicant] has a well‑founded fear of being persecuted in South Korea, then the issue of whether or not he has effective protection in South Korea does not arise. We submit that [the applicant] has a well‑founded fear of persecution in South Korea, because the state would be unable to protect him from:
1.The serious psychological harm he claims he would suffer as a result of his presence endangering the lives of his family in North Korea.
2.North Korean agents who would either:
(a)kill him;
(b)kidnap him and take him to North Korea; or
(c)use threats to harm his family in North Korea as a way of forcing him to return to North Korea.
A significant element in the advisors’ submissions was the claim that the applicant would be in a different position in South Korea rather than Australia, because “his presence would become known to the North Korean authorities and his family in North Korea would be at serious risk of harm”. This would result in “persecution” to the applicant from which he would not be protected in South Korea. Two forms of persecution were suggested: the applicant would “suffer serious psychological harm” as a result of anxiety about how his family members would suffer in North Korea, and he personally would also be at risk from agents of the North Korean government, in particular from assassination, kidnapping and abduction. It was also submitted that the applicant would face discrimination and poor treatment as a refugee if he resided in South Korea. The submission concluded:
We submit that the available country [information] demonstrates that [the applicant’s] claims are well founded, and that there is a real chance that he would be persecuted in both North and South Korea because of his real and / or imputed political opinion and his membership of the particular social groups of his family and the people involved in / with the failed 1995 coup (both real and / or imputed membership).
We submit that he would not have effective protection in South Korea and that he is a person to whom Australia owes protection obligations under the Refugees Convention.
The applicant attended a hearing held by the Tribunal, accompanied by his advisor, and a transcript is in evidence. Two aspects are relevant to the grounds of review which I shall address below. The first concerns questioning by the Tribunal member about the applicant’s family members left by him in North Korea. The relevant passage is too long to extract in full, but it commences:
M:Member
A:Applicant (through Interpreter)
M:… There’s a lot of country information about North Korea, and some of that says that after someone like you leaves North Korea, your absence is easily noted by the North Korean authorities and family members can be interrogated and punished, detained … If the person is young like yourself, the parents can be sent to a labour camp for being bad parents. Do you think this has happened to your family?
A:Yes.
M:Already?
A:Member, the only family member who remains in North Korea when I left was my sister. I have great guilt for my sister, more than whether I can live or I can die.
M:Just a moment, let’s go through a couple of things here. Here it says you have mother, father, brother, sister in North Korea, in your application.
A:Yes. My father and brother were arrested and taken by the government. I left North Korea in November without knowing what had happened to my mother who was taken by the authorities on 25 November. I don’t know … it might have been … my mother might have been in custody for a few days going through interrogation and might have been returned home which happened to me previously.
M:Are you afraid … do you today fear just by being outside of North Korea, this has already caused persecution of your family?
A:Yes.
The subsequent answers of the applicant as to the situation of his mother and sister were less clear. I accept that he also claimed to believe that “the government wouldn’t really take the extreme harsh persecution to my remaining family” for so long as “the North Korean government doesn’t know my location and the action that I have taken”.
The second aspect of the hearing which should be noted is a submission by the applicant’s advisor in response to a reference by the Tribunal to “the thousands of North Koreans who do undergo or undertake a bit of a debrief session with the South Korean authorities when they get to South Korea”. The advisor submitted orally:
… the thing about [the applicant] which makes his situation completely different is his background, his family, his father’s position, his father’s involvement in the coup. That’s what really makes him different to the normal, you know, economic or starving refugee who might flee from North Korea.
At the end of the hearing, the advisor repeated this submission:
Can I just add, sorry, like integral to the situation to him in South Korea which is the issue, it’s not just the situation generally, [it’s] his particular family situation and his particular situation because obviously any North Korean defector faces persecution back in North Korea but nothing perhaps would single them out in South Korea for unwanted attention from the North Korean government or agents. But [the applicant] in particular does have that profile which would warrant the attention and that all relates to what happened to him back in North Korea. And that’s all I want to say and I will put that in writing.
With the leave of the Tribunal, the advisor made a post‑hearing submission on 16 August 2004. This enclosed country information, a psychiatric report, and a report from an academic concerning the situation of North Korean refugees in South Korea. The latter gave an opinion:
… there is a real possibility that a person connected to North Korean anti government movement would be exposed (either by media or as a result of a leak from the relevant government agencies) and then assassinated by the North Korean agents. It is even more likely that his known presence in the South would result in persecution of his family members in the North, including people who may not be closely related to him.
The advisor’s post‑hearing submission repeated points which I have referred to above, and summarised the applicant’s claims as to his position if he returned to South Korea:
In summary, [the applicant] has grave fears about the dangers to his life and the lives of his family, if he were present in South Korea. He claims that his presence would come to the attention of the North Korean authorities, and that he would be targeted by North Korean agents who would either:
(a)kill him;
(b)kidnap him and take him to North Korea;
(c)punish his family in North Korea; and / or
(d)use threats to harm his family in North Korea as a way of forcing him to return to North Korea.
He also claims that he would suffer severe psychological harm because of the risk that his presence would be exposed and, as a consequence, that his family would be punished.
He fears both physical and psychological harm, which would be caused by North Korean authorities and agents, and also by the inability of the South to protect him.
The Tribunal’s statement of reasons handed down on 18 November 2004 is lengthy. The first 40 pages identify the relevant law, the applicant’s written and oral claims, and relevant country information. It contains some analysis of the various points made on behalf of the applicant. No criticism of this section of the reasons was made by counsel for the applicant.
Significantly, the Tribunal identified key submissions made by the applicant’s advisor: “The Applicant’s adviser said that the Applicant’s family background made his case unique, compared with other asylum seekers from North Korea”. It also noted: “The Applicant claimed that the North Korean authorities regard him as the son of a traitor and would try to prevent him from telling the world about the 1995 coup attempt”. These and other references point against a submission, which I shall address below, that the Tribunal overlooked the applicant’s claims based upon his family membership and socio‑political background in North Korea.
The Tribunal made it clear in this discussion that it accepted the two key findings of the delegate: that the applicant would face a real chance of persecution for Convention reasons if he returned to North Korea, and that he would have an entitlement “to be recognised formally as a citizen of South Korea”. As had clearly come to be recognised by the applicant’s advisors, the controversial issues therefore turned upon the assessment under s.36(4) of his claimed fear of being persecuted in South Korea for a Convention reason.
Under the heading “Findings and Reasons”, the Tribunal accepted that the applicant was a national of North Korea. It then commenced its assessment of his claims by finding that his story of being a beneficiary of a charitable operation by missionaries was “inconsistent and implausible” and showed a “lack of candour” which “forms a pattern with other significant areas of the applicant’s claims”. It was not submitted by his counsel that these cautions were not open to the Tribunal.
The Tribunal’s reasoning as to the applicant’s claims can be summarised:
·It rejected a claim that he had or would be regarded by the North or South Korean authorities as having “significant information about the use of foreign aid in North Korea”, and would therefore be a target for persecution.
·It gave only limited acceptance of the applicant’s claims about his family’s involvement in the 1995 coup, by accepting “that his father and brother were peripherally implicated” and that “they may be dead”.
·It found “on the basis of the Applicant’s continued liberty, and on the basis of his being given a job as a supervisor in 1999, that he himself was never even peripherally implicated in the 1995 coup attempt”.
·It found that the North Korean authorities “will already have taken a very serious view of his absence and assume he has, or has tried to, escape the country”.
·Based on that finding, it concluded that the applicant “has already greatly exacerbated the prospect of any surviving family members facing persecution such as continued detention and execution”. It also said: “the harm to his family that the Applicant now claims to apprehend as a future possibility has already been triggered by his escape from North Korea in late 2002”, and “the Applicant has already precipitated the persecution of his surviving family members”. (Tribunal’s emphasis).
·It therefore rejected his “more recently stated position to the effect that the North Korean authorities will maintain a relatively benign or neutral view of his absence until it is confirmed to them by his appearance or reported appearance in South Korea”.
·It did not accept that the applicant “faces a real chance of abduction by North Korean spies” if he returned to South Korea, and also rejected his fears of assassination in that country.
·It did not accept “that the Applicant will be forced to publish his experiences and be regarded or portrayed as a North Korean spy if he does not”. It said that it was confident that he “would be left to keep a low profile in South Korea”.
·It rejected a claim that he had been placed at risk by reasons of events in Sydney which it is unnecessary for me to identify.
·It rejected a claim that he would not be granted the same rights as South Koreans for reasons of being a North Korean defector.
·It concluded that s.36(4) did not “apply in the present case”, and, that s.36(3) did apply because it was “not satisfied that the Applicant has taken all reasonable steps to reside in South Korea, a country that constitutionally recognises him as one of its citizens”.
At the hearing before me, counsel for the applicant addressed his submissions in a lengthy “Further Amended Application” which contains several pages of particulars in relation to five grounds of review. I shall attempt below to identify and deal with all of his significant arguments.
Ground 1
1.The Tribunal made a jurisdictional error in failing to ask itself the correct questions, in that it failed to consider the Applicant’s claim that he had a well founded fear of being persecuted if he were returned to South Korea for reasons of his membership of a particular social group, being members of families who are of high political status and have political connections in North Korea who are present, or reside, in South Korea without the leave of the North Korean authorities (the social group).
This ground sought to establish a failure of the Tribunal to exercise its jurisdiction by addressing all claims to refugee status raised by the applicant (c.f. NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 (“NABE”) at [48]‑[55] and [63]). It was argued that the contended “particular social group” claim was raised for consideration by the submissions of the applicant’s advisors at the hearing and subsequent submission which I have extracted above.
However, I am not satisfied that the Tribunal failed to address any relevant aspect of the applicant’s claims. The submission which was put to the Tribunal essentially contended that his situation in South Korea should be assessed by reference to personal circumstances in his family background which, it was contended, would specially identify him for adverse attention by North Korean agents and others. It did not include a claimed membership of a particular social group in the terms now presented to the Court. In my opinion, the Tribunal did sufficiently identify and address the background family circumstances and the special risks which it was claimed they would bring him. It addressed them in the findings I have set out above. These gave only limited acceptance of the applicant’s claim that his father had a prominent status in relation to the 1995 coup attempt, and rejected fears that he would be selected for assassination or abduction due to his family background and that his presence in South Korea would give rise to adverse publicity due to that background.
The Tribunal expressly related the latter findings to relevant Convention “reasons”, including membership of a particular social group, in an opening statement:
The Tribunal has considered the Applicant’s other claims as to what he says could happen to him in the event of residing in South Korea. The Applicant’s position is that s36(4) of the Act applies because he “has a well‑founded fear of being persecuted” in South Korea for Convention‑related reasons (the categories of “nationality,” “membership of a particular social group” and “political opinion”). Ultimately, the Tribunal does not accept this, as the following reasoning will show.
In view of the way in which the applicant’s case was presented to the Tribunal, I do not consider that the Tribunal was obliged to include in its reasons further discussion of how the applicant would be treated in South Korea on the basis of claims to be “of high political status [with] political connections in North Korea”. I am not persuaded that the Tribunal overlooked this element of his claims to the extent that it was raised.
Ground 2
2.The Tribunal made a jurisdictional error in failing to take into account a relevant consideration when determining if the Applicant would be safe from persecution in South Korea.
Particulars
(a)The Tribunal found that the Applicant had no further information about the coup or corruption associated with food distribution that would be of interest to either South Koreans or North Koreans, and concluded that the Applicant would therefore be safe from persecution in South Korea.
(b)The Tribunal did not take into account the fact that the Applicant was a member of the social group when finding that he would be safe from persecution in South Korea.
(c)The Applicant repeats particulars to paragraph 1 above.
I regret that I could not understand the point made under particular (a) nor the submissions which addressed it. It is plain that, in fact, the Tribunal did identify and address this element in the claims made by the applicant.
I have addressed particulars (b) and (c) under Ground 1 above.
Ground 3
3.The Tribunal made a jurisdictional error in finding that the Applicant would not suffer persecution if he returned to South Korea when there was no evidence to support such a finding.
The particulars for this ground identified the various findings made by the Tribunal in which it concluded that the harms to the applicant’s family members which were feared by the applicant had already been “exacerbated”, “triggered” or “precipitated” by the applicant’s escape from North Korea, because the North Korean authorities “will already have taken a very serious view of his absence”. These findings led it to reject the contention that the applicant’s surviving family would be at greater risk if the applicant returned to South Korea.
It was contended for the applicant that these adverse findings were not supported by any evidence and were not open to it as a matter of law, and that it was therefore not open to the Tribunal to reject the real chance that the applicant’s presence in South Korea would heighten the risk to his surviving family members.
There may be an issue whether errors by the Tribunal when making these findings are capable of constituting jurisdictional error in circumstances where the Tribunal has at least identified and addressed the relevant claims. The Tribunal’s jurisdiction allows it to arrive at erroneous findings of fact when assessing an applicant’s claims (c.f. NABE (supra) at [68] and Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [6]‑[9], citing Allsop J in Paul v Ministerfor Immigration & Multicultural Affairs (2001) 113 FCR 396 at [79]: “a failure expressly to mention or grapple with part of the competing body of evidence … where the claim has been addressed is not a jurisdictional error”.
However, I need not address this issue since, in my opinion, there was evidence before the Tribunal which allowed it to arrive at these findings. This evidence was found in the applicant’s own statements in his written visa application and his responses to the Tribunal’s questions, which I have set out above, as to whether his mother and sister were likely already to have become the subjects of retribution by reason of his escape from North Korea.
The Tribunal recounted how it put this interpretation of events to the applicant at the hearing:
At the RRT hearing, the Applicant said he already felt guilty about the danger in which he had already placed his sister. The Tribunal drew his attention to the fact that he had already indicated that his family was already in serious trouble with the North Korean authorities. The Applicant confirmed the claim about his mother having been arrested and detained, but speculated that she may have been released. This was an unsupported assertion and much of the Applicant’s evidence as to the negative implications of his escape for the rest of his family would appear to give him no logical reason to assume his mother has been released.
The Tribunal put it to the Applicant that his actions to date appeared to be enough to precipitate the persecution of his entire family. The Tribunal put it to him that on his evidence, the thing he feared in the event of residing in South Korea could also be happening whilst he remained in Australia.
In my opinion, it was open to the Tribunal to reach the conclusions which it expressed. The issue required the Tribunal to form a difficult predictive opinion, drawing upon its findings as to the applicant’s history and taking into account its general background researches. In this situation, I am not persuaded that the Tribunal arrived at opinions which were not available to it on the material before it. Other Tribunal members might have been left in doubt when making these findings, and would then have needed to assess possibilities arising under the “real chance test”, but I do not consider that this Tribunal’s findings reveal it being in doubt so as to require it to do this (c.f. Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 231‑233, and my discussion in SZDTZ v Minister for Immigration & Anor [2005] FMCA 1392 at [19]‑[22]).
Ground 4
4.In the alternative to (3), the findings referred to in 3 above were so unreasonable that no Tribunal acting reasonably would have made them.
The particulars and argument for this ground essentially sought to re‑frame the attack on the Tribunal’s findings in relation to the situation of the applicant’s family members in North Korea if the applicant returned to South Korea, which I have dealt with above. In my opinion, the argument does not gain in strength by attempting to meet the tests of “unreasonableness” as a ground of jurisdictional error (c.f. Minister for Immigration & Multicultural Affairs v Eschetu (1999) 197 CLR 611 at [40]‑[44], [101], [124]‑[127], [145]‑[147], [159], [183]‑[188]; Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [9], [36]‑[37], [81], [128], [137]; and Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38]).
In the present situation, I am unable to characterise the Tribunal’s conclusions on this matter as “unreasonable” in any sense suggested by the above authorities. I consider that it was open to the Tribunal to take the view that the applicant’s evidence generally should not be accepted without caution, and that he did made some statements suggesting that, in fact, he believed that he had already caused the harms to his mother and sister which he claimed to fear if he returned to South Korea. The applicant’s evidence might have been open to other interpretations and assessments, but this possibility does not establish jurisdictional error. Considering all the material which was before the Tribunal, I consider that its assessment of whether the applicant’s family would be at greater risk if he obtained refuge in South Korea cannot be characterised as “irrational, illogical and not based on findings or inferences of fact supported by logical grounds”.
Ground 5
5.The Tribunal made a jurisdictional error in taking into account an irrelevant consideration in determining whether the Applicant would be subject to persecution if he were returned to South Korea.
Particulars
(a)The Tribunal accepted that an Applicant can suffer persecution through harm or the threat of harm to family members of the Applicant (page 17 of the Tribunal’s decision).
(b)The Tribunal found that:
“in the present Applicant’s case, the harm to his family … has already been triggered by his escape from North Korea in late 2002. The Tribunal concludes on the evidence before it that the Applicant has already precipitated the persecution of his surviving family members” (page 43 of the Tribunal’s decision, emphasis existing).
(c)Whether persecution has been or would be suffered in Australia is irrelevant to a determination of whether a non‑citizen has a well‑founded fear of persecution being suffered in another country which the Applicant has a right to enter and reside in, namely South Korea, for the purposes of sections 36(3) and (4) of the Act.
In support of this ground counsel for the applicant argued that error (other than the errors which I have addressed above) was revealed in the concluding sentence in the following paragraph of the Tribunal’s reasons:
The Tribunal nevertheless accepts that there are spies for North Korea living in South Korea. The Tribunal does rule out that these spies report identities of defectors back to North Korea. The Tribunal concludes on the evidence before it, however, that in the present Applicant’s case, the harm to his family that the Applicant now claims to apprehend as a future possibility has already been triggered by his escape from North Korea in late 2002. The Tribunal concludes on the evidence before it that the Applicant has already precipitated the persecution of his surviving family members. The Tribunal understands that he feels guilty about having done this. The Tribunal accepts that this could contribute to his psychological state even though he appears to have omitted any reference to the existence of a sister in his consultation with the doctor, whose report he submitted to the Tribunal. (Tribunal’s emphasis)
As I understood counsel’s argument, it was that the Tribunal was obliged to address a claim that, if the applicant were in South Korea, his current “severe anxiety” condition would be made worse due to increased apprehensions concerning the situation of his family members in North Korea. The Tribunal was required to consider whether this would amount to “persecution” resulting from actions of the North Korean authorities directed at his family members. It was irrelevant, he argued, that the applicant might already have developed feelings of guilt which were contributory to his illness currently suffered in Australia. The Tribunal had failed to address the relevant matter and had been distracted by its irrelevant findings.
However, in my opinion, this argument is based upon a misreading of the Tribunal’s reasoning. The Tribunal in the opening parts of the above paragraph and in its earlier reasoning found that the applicant’s apprehensions had already developed because he, in fact, believed that the North Korean authorities had already identified his absence and commenced their retribution on his surviving family. Its finding “that he feels guilty about having done this” did not leave room for new causes of guilt to arise if he returned to South Korea. Its statement that “this could contribute to his [i.e. current] psychological state” was a relevant and logical conclusion from its preceding reasoning. As I would understand the Tribunal, it implicitly found that the applicant’s current illness would not be aggravated if the applicant returned to South Korea by reason of his presence in that country resulting in new risks for his family and consequential feelings of guilt, since he had already formed a belief, and had suffered the resulting feelings of guilt, that his family members had already suffered the consequences of his escape from the North. I am not persuaded that this reasoning reflects any error, whether jurisdictional or otherwise.
Conclusion
For the above reasons, I have been unable to accept any of the grounds of jurisdictional error which have been contended on behalf of the applicant. The Tribunal’s decision is therefore a privative clause decision for which relief is barred by s.474(1), and I must dismiss the application.
I certify that the preceding forty‑two (42) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 23 December 2005
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