SZGKB v Minister for Immigration
[2005] FMCA 1544
•24 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGKB v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1544 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – Applicant a citizen of North Korea – whether entitled to reside in South Korea – Applicant in Immigration Detention. WORDS & PHRASES – “Right to enter and reside in” – existing legally enforceable right – right exists whether or not holder of right takes any steps to enforce it. PRACTICE & PROCEDURE – Competency – Notice of Objection to Competency – where application filed more than 28 days after RRT decision handed down – application filed on 7 October 2004 but application not filed at Federal Magistrates Court until 24 May 2005 – privative clause decision. |
Judiciary Act 1903 (Cth) s. 39B
Migration Act 1958 (Cth) ss. 36, 91M, 91N, 475A, 477(1A)
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 followed
WAGH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 194 followed
| Applicant: | SZGKB |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 1360 of 2005 |
| Delivered on: | 24 October 2005 |
| Delivered at: | Sydney |
| Hearing date: | 28 September 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | Mr Nair (Pro Bono) |
| Counsel for the Respondent: | Ms Kaur-Bains |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
Leave granted to join the Refugee Review Tribunal as Second Respondent
The Application is dismissed.
The Application is not competent.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $7,850.00. I allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1360 of 2005
| SZGKB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal made and handed down on 7th October 2004. The Refugee Tribunal affirmed a decision of a delegate of the Minister for Immigration not to grant a protection visa to the Applicant.
Background
The Applicant arrived in Australia on 21st May 2004 on a passport issued by the Republic of Korea. He claimed that the name on the passport is not his real name. When he arrived at the airport in Sydney the Applicant told the authorities he was an asylum seeker. He was taken into custody by officers of the Department of Immigration and Multicultural and Indigenous Affairs.
On 2nd June 2004 the Applicant applied for a protection visa on the basis that he is a citizen of the Democratic People’s Republic of Korea (commonly known as North Korea) and that he would be persecuted as a traitor if he were forced to return there. The Tribunal acknowledged that North Korea is “widely reported to be a one-party authoritarian state that tolerates no political dissent”.[1] On 10th June 2004 the Minister’s delegate refused his application for a protection visa.
[1] Court Book at page 424
On 16th June 2004 the Applicant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal invited the Applicant to attend a hearing on 15th July 2004. The Applicant attended the hearing accompanied by his migration adviser, who had provided the Tribunal with written material about the situation in North Korea. The Applicant gave evidence to the Tribunal with the assistance of an interpreter in the Korean language.
The Tribunal had serious concerns about the Applicant’s nationality, raising the possibility that he might in fact be a citizen of the People’s Republic of China. The Tribunal also had some difficulty accepting various other parts of the Applicant’s account of his defection from North Korea and his escape via Vietnam, as well as the Applicant’s claim that his parents in North Korea would suffer if the authorities there found out that he had defected.
The Tribunal’s Decision
Notwithstanding the doubts about the Applicant’s nationality and his other assertions, the Tribunal accepted that the Applicant is a national of North Korea. The Tribunal then noted that he would be entitled under South Korean law to citizenship of South Korea.
The Tribunal then considered whether s.91N of the Migration Act 1958 would apply. That section refers to applicants who are nationals of two or more countries. Section 91M explains that:
“The Parliament considers that a non-citizen who can avail himself or herself of protection from a third country, because of nationality or some other right to re-enter and reside in the third country, should seek protection from the third country instead of applying in Australia for a protection visa, or, in some cases, any other visa.”
The Tribunal dealt with the issue by saying:
“The Tribunal is not confident that s. 91N applies in this case due to the fact that the Applicant has not yet embarked upon the process by which recognition of South Korean citizenship would be given. This means that the Applicant’s application is valid and that the Tribunal must consider it fully on its merits.”[2]
[2] See Court Book at page 447
What the Tribunal then did was to consider whether the Applicant would be able to obtain South Korean citizenship, noting a DFAT report that applicants are investigated and, if found to be genuine North Koreans, are automatically and immediately granted South Korean citizenship.
The Tribunal than considered the Applicant’s claim that his parents would suffer harm from the North Korean authorities if he were seen to be a defector. The Tribunal concluded that Australia could provide no greater level of protection from that harm than South Korea could. The Tribunal referred to the decision in NBCY v MIMIA [2004] FCA 922, where the facts were virtually identical. The Tribunal here found that the Applicant could not gain protection from the South Korean government against the harm he feared would happen to his parents because of the inability of the South Korean government to control what the North Korean government does to its own citizens inside North Korea.
The Tribunal found that the Applicant did not have a well-founded fear of persecution for a Convention reason in South Korea or of being returned from South Korea to a country where he would have a well-founded fear of persecution. The Tribunal gave these reasons:
a)The evidence did not satisfy the Tribunal that the Applicant’s parents would be worse off if he were residing in South Korea than if he were residing in Australia or China.
b)The Tribunal found no evidence of North Korean agents located in South Korea informing the North Korean government about defectors living in South Korea.
c)The Tribunal found no evidence of ongoing regular use by South Korean authorities of North Korean defectors for propaganda purposes.
d)The Tribunal noted the increasing number of defectors from North Korea to South Korea, which led the Tribunal to believe that there was little if any fear of the dangers that the Applicant referred to about living in South Korea.
The Tribunal found that the Applicant has a right to enter and reside in South Korea and that he has not taken all possible steps to avail himself of that right. He has access to a South Korean citizenship and would shortly be able to obtain a South Korean passport. The Tribunal referred to the provisions of s.36(3) of the Migration Act:
“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”.
The Tribunal affirmed the decision not to grant a protection visa to the Applicant.
The Applicant’s Submissions
In an outline of written submissions, the Applicant’s counsel, Mr Nair, noted that the Applicant had never been to South Korea. He claimed that the Applicant would have difficulty in establishing his North Korean nationality and that he does not at present have a right to enter and reside in South Korea. He submitted that it was “highly moot” that the Applicant would ever be able to acquire that right.
The Applicant relies on the decision of the Full Court in WAGH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 194. In the judgment of Lee J at [31], his Honour referred to the Full Court decision of Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154, where the Court expressly rejected the submission that the phrase “a right to enter and reside” as used in subs 36(3) went beyond a legally enforceable right to enter and reside, and extended to a person who had a “capacity or ability” to enter and reside in a country other than Australia.
Lee J went on to say at [34]:
“The words ‘right to enter and reside and reside in, whether temporarily or permanently…any country…including countries of which the non-citizen is a national’ mean an existing right which a person, who claims to be a person to whom the Convention applies, may exercise, being a right to enter, re-enter, and reside in a country other than Australia pursuant to a prior acceptance or acknowledgment by that country that it will accord that person protection from the risk of persecution that would exist if that person were returned to his or her country of nationality or habitual residence.”
The Applicant also referred to the decision of Carr J at [74]:
“In my view, Applicant C is authority for the proposition that the word ‘right’ in s. 36(3) means a legally enforceable right, albeit one that can be revoked – see Stone J at [57] and [58].”
The Applicant claims that he does not have an existing legally enforceable right to enter and reside in South Korea. The Applicant also submits that the Tribunal cannot be said to have been satisfied that effective protection was available to the Applicant in South Korea, or that s.36(5) did not apply to the Applicant. Accordingly, the Applicant submits that the Tribunal made a jurisdictional error when it affirmed the delegate’s decision on the basis of s.36(3).
The First Respondent’s Submissions
Counsel for the First Respondent, Ms Kaur-Bains, also relies on the decision in WAGH v MIMIA (supra). She submitted that the Tribunal when considering the meaning of s.36(3) was required to consider whether the Applicant had an existing legally enforceable right to enter and reside in South Korea.
She submitted that, given that the Tribunal had, albeit reluctantly, accepted that the Applicant was a national of North Korea, the next step was for the Tribunal to consider whether s.36(3) of the Migration Act applied. She considers the Applicant’s contention that he will have difficulty establishing his North Korean nationality to be an attempt to seek merits review.
The First Respondent submits that the Tribunal proceeded to consider the question whether the Applicant, as a citizen of North Korea, has a right to enter and reside in South Korea. This step was necessary because of the requirements of s.36(3).
The Tribunal relied on country information, on page 446 of the Court Book, that:
a)The Constitution of the Republic of Korea (i.e. South Korea) regards North Korean citizens as having citizenship of South Korea;
b)The decision to grant citizenship is in practice automatic and not discretionary; and
c)Once an application is found to be North Korean that applicant would automatically and immediately be granted South Korean citizenship.
It follows that, as a North Korean citizen would automatically and immediately be granted South Korean citizenship, that citizen has a right to enter and reside in South Korea for the purposes of s.36(3). An applicant has to arrive in South Korea and take up his or her entitlement to South Korean citizenship by establishing that he or she is a citizen of North Korea, but this step is contemplated by s.36(3), where it refers to a person having “taken all possible steps to avail himself or herself of a right to enter and reside in” that third country. The fact that an applicant has to assert his or her right to citizenship of South Korea does not mean that he or she does not have that right to enter and reside in South Korea on the basis of being a North Korean citizen.
In reply to the Applicant’s claim that the Tribunal could not be said to have been satisfied that s.36(5) did not apply to the Applicant,
Ms Kaur-Bains submitted that the Tribunal had considered this issue and dealt with it, as shown at pages 422, 423 and 448 of the Court Book.
The First Respondent submitted that the Tribunal had correctly found that the Applicant has a right to enter and reside in South Korea and has not taken all possible steps to avail himself of that right.
Conclusions
In my view, the Refugee Review Tribunal, whilst in some doubt that the Applicant is in fact a citizen of North Korea, gave the Applicant the benefit of that doubt and considered his application for a protection visa on that basis. The fact that the Tribunal did consider the application on the basis that the Applicant is a citizen of North Korea did not mean that the Tribunal was precluded from questioning the credibility of the Applicant on other parts of his claim or from disbelieving parts of the Applicant’s claim.
The Tribunal was satisfied that North Korea is a repressive regime that does not tolerate political dissent, and the country information supports that finding. Having taken the decision to deal with the application on the basis that the Applicant is in fact a citizen of North Korea, The Tribunal was correct in considering the claim on the same basis as it would be obliged to consider a claim by any other North Korean citizen, namely, whether the Applicant had a right to enter and reside in South Korea. This is a requirement of s.36(3) of the Migration Act.
In my view the Tribunal applied s.36(3) correctly. The decision in WAGH makes it clear that the right to enter and reside in South Korea must be an existing legally enforceable right. In this case, the Applicant had neither entered South Korea nor, on the evidence before the Tribunal, taken any step to enforce his right to enter and reside in South Korea. The fact that a party does not take any step to enforce a right does not mean that the right is not existing and legally enforceable. The right exists independent of any decision by the holder of that right either to enforce or not to enforce it.
The Tribunal did not fall into jurisdictional error on this point.
I turn now to s.36(5). That subsection says:
“Also, if the non-citizen has a well-founded fear that:
a) country will return the non-citizen to another country; and
b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;
subsection (3) does not apply in relation to the first-mentioned country.”
It seems clear that the Tribunal considered that matter, as seen from page 448 of the Court Book. The Tribunal also considered the position of the Applicant’s wife and child, currently in China, at page 450 of the Court Book. In my view, the Tribunal’s consideration of the s.36(5) issue is supported by the factual reasons that the Tribunal has given at pages 448 and 449 of the Court Book.
The Tribunal’s consideration of this issue reveals no jurisdictional error.
As there is no reviewable error, the decision of the Refugee Review Tribunal is a privative clause decision under s.474 of the Migration Act.
Competency
The original Application was filed on 24th May 2005. The First Respondent has filed a Notice of Objection to Competency on the basis that the Application is out of time. The Applicant was notified of the decision of the Refugee Review Tribunal on 7th October 2004. Section 477(1A) of the Migration Act requires that an application to the Federal Magistrates Court for a writ of mandamus, prohibition or certiorari or an injunction or declaration in respect of a privative clause decision must be made within 28 days of the notification of the decision.
As the Applicant did not apply until 24th May 2005, more than seven months after he was notified, the application is incompetent.
Orders to be made
The application will be dismissed with costs. I will also order that the application is incompetent.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 24 October 2005
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