SZOAU v Minister for Immigration - [2011] FMCA 820

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOAU v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 820

MIGRATION – RRT decision – North Korean applicant for protection visa – whether dual national of South Korea – meaning of ‘a national’ – whether visa application invalid without Minister’s discretionary decision – no error in Tribunal’s decision to deny jurisdiction – application dismissed.

Migration Act 1958 (Cth), ss.36, 36(3), 46A, 91M, 91N(1), 91N(2), 91N(2)(a)(ii), 91N(3), 91N(6), 91P, 91P(1), 91P(2), 91Q, 91Q(1), 91Q(2), 198A(3)

Minister for Immigration & Multicultural & Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 272 ALR 14, [2010] HCA 41
Plaintiff M70/2011 v Minister for Immigration & Citizenship; Plaintiff M106 of 2011 v Minister for Immigration & Citizenship (2011) 280 ALR 18, [2011] HCA 32
Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252, [2010] HCA 23
SZOAU v Minister for Immigration & Anor [2010] FMCA 606
SZOUY & Ors v Minister for Immigration & Anor [2011] FMCA 347, (2011) 250 FLR 401

Applicant:

SZOAU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1017 of 2011

Judgment of:

Smith FM

Hearing date:

5 October 2011

Delivered at:

Sydney

Delivered on:

9 November 2011

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Legal Aid NSW

Counsel for the First Respondent:

Mr S Lloyd SC with Ms A Mitchelmore

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1017 of 2011

SZOAU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant, assisted by a solicitor, lodged an application for a protection visa on 20 April 2009. He was unknown to the Immigration Department under his present name, but claimed that he had been smuggled into Australia on a cargo ship in 1999. He claimed that he was a North Korean national, who had escaped from North Korea and lived in China before coming to Australia. The decision-makers on his application had doubts about some of his claimed history, but they all addressed his visa application on the basis that he had been born in North Korea and had its nationality.
A delegate of the Minister refused the visa on 2 July 2009, on the ground that Australia’s protection obligations were excluded by s.36(3) of the Migration Act 1958 (Cth), because the applicant had not taken “all possible steps to avail himself” of a right to enter and reside in South Korea, where the delegate thought that he would be given effective protection against persecution by North Korea and its agents. This decision was upheld by the Tribunal on 19 October 2009, but the matter was remitted by Nicholls FM on 19 August 2010. His Honour held that the Tribunal’s reasons had failed “to show that it engaged in any intellectual process” to identify and resolve contradictory advice in cables from the Department of Foreign Affairs and Trade concerning South Korean laws and administrative practice for giving protection to persons claiming to be North Koreans who had never entered South Korea (see SZOAU v Minister for Immigration & Anor [2010] FMCA 606).
The present Tribunal, after giving due notice, raised a preliminary issue, not previously addressed by the decision-makers. This was whether the visa application was invalid, and whether the Tribunal therefore lacked jurisdiction to examine the applicant’s eligibility for a protection visa under the criteria specified in s.36 of the Migration Act. In a decision made on 14 April 2011, the Tribunal found that the visa application was rendered invalid by force of s.91P(2) and s.91N(1) of the Migration Act, because the applicant was at the time of visa application a national of both North and South Korea, and he had not obtained a determination from the Minister under s.91Q allowing him to apply for a protection visa in Australia.
The applicant now applies to the Court for writs of certiorari and mandamus to quash the Tribunal’s decision, and to require it to exercise its jurisdiction according to law. In effect, he argues that the Tribunal made errors of law when reaching the opinion that his visa application was invalid.
The present Tribunal’s interpretation of Subdivision AK of Part 2 Division 3 of the Migration Act followed essentially the same reasoning which I recently considered and upheld in SZOUY & Ors v Minister for Immigration & Anor [2011] FMCA 347, (2011) 250 FLR 401. Moreover, the Tribunal’s finding of fact that the applicant held dual nationality so as to come within these provisions, was based upon the same expert evidence from two South Korean lawyers as was also addressed in SZOUY. In effect, the two matters are indistinguishable, and this was conceded by counsel for the present applicant. Nor, in my opinion, did the submissions of the applicant’s counsel raise any substantial argument which I did not anticipate and consider in SZOUY. The submissions of counsel for both parties in the present case have, indeed, tended to confirm the correctness of the analysis which I provided in my previous judgment. I am not persuaded that I should not follow that judgment, and I arrive at the same outcome for the same reasons.
In this situation, the reader of this judgment should treat it as a sequel to SZOUY, and I invite him or her to read that judgment first. It explains the legislative background. It attaches in its Schedule all of the legislative provisions which were inserted into the Migration Act by amendments made in 1999, and which remain there unchanged. It is unnecessary for me to reproduce these parts of the judgment. I propose only to identify my key reasoning in SZOUY, and deal with the additional submissions of counsel before me in the present matter.
At [25] of SZOUY I summarised the scheme of the 1999 amendments, and explained how tension between two of their elements should be reconciled:
25.The relevant elements of Subdivision AK in its application to protection visa applicants are:
i)It is intended to ‘apply to’ a protection visa applicant who is physically ‘in the migration zone’ at the time of visa application, whether ‘immigration cleared’ or not (by the combined effect of s.91P(1) and (2)); but only if:
ii)The applicant falls within one of the classes described in either s.91N(1) or s.91N(2). That is, that he or she “is a national of 2 or more countries”, or “has a right to re‑enter and reside in” any country other than a country of nationality or Australia as described in s.91N(2). The two classes are mutually exclusive, due to the express provision in s.91N(2)(a)(ii).
iii)Such a visa applicant’s application is necessarily not “a valid application”, but this bar is “subject to section 91Q” (see s.91P). If the bar operates, the visa application necessarily cannot be addressed by reference to the criteria in s.36 and the terms of the Refugees Convention, either by a primary decision‑maker or by the Tribunal on review.
iv)The proviso in relation to s.91Q allows the visa applicant, before making the visa application, to obtain a discretionary seven day dispensation from the effect of s.91P, by obtaining a ‘written notice’ from the Minister under s.91Q(1). The Minister’s power is conditioned in the same manner as other similar ‘lifting the bar’ and ‘non‑compellable’ personal discretions of the Minister under the Migration Act.
v)However, unlike other such powers, s.91Q(2) provides guidance to the Minister as to the “matters” which he “may consider”. These include “information that raises the possibility”, in effect, that the visa applicant “might not” receive protection from his or her country of dual nationality, or from a country to which he or she has a right of entry.
vi)If, but only if, the Minister ‘lifts the bar’, a protection visa application can be made, and it will then need to be addressed under s.36, including by reference to its new preclusions in s.36(3) in relation to persons with dual nationality or a right of entry and residence in another country.
26.When so analysed, the prima facie tension in the amendments appears, but is resolved. As I have noted, that tension arises because, on the one hand, s.36 was amended to introduce a deemed exclusion of Australia’s protection obligations to persons with dual nationality or rights of entry to third countries unless they might not receive effective protection, and, on the other hand, the amendments introduce a bar on validity which would prevent the issues of ‘effective protection’ being addressed by any decision‑maker in relation to those classes of protection visa applicants without a non‑compellable personal decision of the Minister to lift the bar.
27.In my opinion the key to the resolution of this tension is the tentative language of the suggested consideration for the Minister’s determination under s.91Q(2). The references to “raises the possibility” and “might not be able” point to a scheme which does intend issues of ‘effective protection’ to be addressed as part of the substantive visa criteria which reflect Australia’s obligations under the Refugees Convention, but only in cases where the bar has been lifted by the Minister to allow this to happen.
28.In effect, although the Minister is not bound to do so, the legislation suggests that the Minister could apply his ‘lifting the bar’ discretion under s.91Q(1) by undertaking only a preliminary or provisional assessment of the availability of effective protection in a country of dual nationality or in some other ‘available country’ (as defined in s.91N(2)). Section 91Q(2) suggests that it might be appropriate for the Minister to allow potentially ‘live’ issues under s.36(3), (4) and (5) to proceed to a merits determination of those issues by a delegate and the Tribunal, by either assuming the validity of the visa application under s.91P, or by issuing a notice under s.91Q(1). Such live issues might concern the existence of a dual nationality, the existence of a right of entry and residence, or any of the other factual elements raised under s.36 including those of ‘effective protection’.
I then addressed the construction of ss.91N(1) and (6), which provide:
91NNon‑citizens to whom this Subdivision applies
(1)This Subdivision applies to a non‑citizen at a particular time if, at that time, the non‑citizen is a national of 2 or more countries.
…
Determining nationality
(6)For the purposes of this section, the question of whether a non‑citizen is a national of a particular country must be determined solely by reference to the law of that country.
I examined the contention which had been made to the Tribunal in SZOUY, and was again made to me under Ground 1 of the amended application in the present case, that the reference to “a national” in s.91N(1) is confined to a person who is a national of a country which would give ‘effective protection’ to the dual national according to the terms of the Refugees Convention. I rejected that construction, after considering the implications of the objects provision in s.91M, and after recognising the intention, suggested in this and other provisions of the Migration Act, that the Act is intended to permit the implementation under Australia’s domestic law of Australia’s obligations under the Refugees Convention. I was not persuaded by submissions which argued that there would be inconsistency with this intention, unless a confining construction were given to s.91N(1). I said:
46.However, I am not persuaded by these arguments, for the following reasons:
i)I accept that s.91M is an aid to construction of the succeeding sections of the Subdivision. However, it is not expressed to perform a definitional role, in particular, to qualify the references to ‘national’ in s.91N(1) and (6). These sections contain no express nor implicit qualification to that term, but appear to invite only an investigation of the local laws of nationality, i.e. citizenship, regardless of what other rights might attach to citizenship, regardless of how the citizenship can be recognised as a practical matter, and regardless of whether it confers nationality which is ‘effective’ under the Refugees Convention.
ii)I do not accept that the reference in s.91M to “can avail himself or herself of protection from a third country” carries any implicit qualification to the references to ‘national’ in s.91N(1). I agree that s.91M suggests an assumption by Parliament that Subdivision AK allows the Minister to give effect to Australia’s international obligations under the Refugees Convention. This is an assumption which the High Court has found in other provisions of the Migration Act bearing on refugee status determinations (see Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41 at [27]). However, in my opinion, the scheme of the 1999 amendments which I have analysed above is capable of being applied for this purpose without confining the word ‘nationality’, even though issues of ‘effective protection’ may only be addressed if the Minister lifts the bar under s.91Q.
iii)The Act is to be construed with the appreciation that Parliament has authority to determine the procedures by which Australia will implement its obligations under the Refugees Convention in its domestic law, and to determine the manner in which “a right of entry and of permanent settlement should be afforded to any individual or group of individuals” (cf. Minister for Immigration & Multicultural & Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [2] and [34]).
iv)There is some infelicity of language in the phrase “because of nationality or some other right to re‑enter and reside in the third country” in s.91M. On first reading, the word ‘other’ might appear to assume that ‘nationality’ necessarily includes a ‘right to re‑enter and reside’. However, on reflection, I consider that the draftsperson intended the clause to be read as “nationality or some right to re‑enter and reside in a third country otherwise arising”. That is, that it makes no assumption that the status or right of nationality for the purposes of Subdivision AK is anything more than that, and in particular does not assume that citizenship of a country always carries a right of entry. As I have pointed out above, such an assumption would be clearly incorrect as a general proposition, including in the history of Australian law itself.
v)As I have pointed out, the two separate classes of visa applicants caught by the bar under s.91P are defined in s.91N(1) and (2) in terms which cannot overlap, notwithstanding that frequently ‘nationality’ is accompanied by a right of entry and residence. This confirms the reading of s.91M which I have suggested above.
vi)On that reading of s.91M, there is nothing in it nor in the other sections of Subdivision AK which supports a qualified reading of the reference to ‘national’ in s.91N(1). There is nothing pointing to a special meaning for that word, which encompasses the existence of rights giving ‘effective protection’ and not just a right to nationality or citizenship.
vii)Nor, in my opinion, is there anything in the extrinsic material which suggests or confirms the effect of s.91M and the interpretation of s.91N(1) which were submitted by Mr Ferguson. I have above discussed the background and scheme of the amending legislation and its extrinsic material, and I consider that they tend to confirm the interpretation adopted by the Tribunal.
47.I have therefore concluded that the interpretation adopted by the Tribunal is the correct interpretation, applying the recognised principles of statutory construction, including the recent reminder that “when it is said the legislative ‘intention’ is to be ascertained, ‘what is involved is the ‘intention manifested’ by the legislation’. Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.” (see Saeed v Minister for Immigration & Citizenship [2010] HCA 23 at [31]‑[33], citations omitted, emphasis repeated).
I noted, and agreed with, the Tribunal’s conclusion that the expert opinions of two South Korean lawyers, Mr Hwang and Dr Lee, showed that “it was common ground between the two experts that the applicants possessed South Korean citizenship or nationality at the time of visa application, in the sense that this citizenship had been directly attributed to them by South Korean law as at the date of their visa applications” (see SZOUY at [40] and [52]).
Counsel for the present applicant invited me to depart from my opinion as to the construction of s.91N(1). His written submission was:
Critique of the reasoning in SZOUY
21.As stated above, there is no doubt that Smith FM was correct in holding that issues of validity had to be addressed prior to those going to whether criteria for the grant of a visa are met. However, other aspects of his Honour’s judgment require close examination.
22.It may also be conceded that the classes of people covered by sub sections 91N(1) and 91N(2) are mutually exclusive, although contrary to his Honour’s reasoning at SZOUY at [25(ii)] sub sections 91N(1) and (2) are not expressed to be mutually exclusive. By sub section 91N(1) subdivision AK applies to a national of two or more countries. In addition by sub section 91N(2) it applies to a person who has a right to enter and reside in inter alia, a country, apart from Australia, of which he is a national and in which he has resided, and which is declared under s 91N(3) to be in effect a safe country. It is valid to ask what purpose is served by on the one hand excluding one person who can go back to a country of which he is not a national only if it is declared to be safe, and excluding another person simply on the basis that he has theoretical nationality of another country?
23.In addition, as his Honour says at SZOUY at [27], his construction of Subdivision AK is to the effect that Australia’s international obligations are addressed as part of substantive visa criteria but only after a ministerial dispensation is granted. But unless a dispensation is granted they may not be addressed at all. This is because:
(i)The Minister need not consider granting a dispensation (s 91Q(7)), and,
(ii)Even if he does he need not consider Australia’s protection obligations either exclusively, or at all (s 91Q(2)).
24.Thus, whether or not Australia’s international obligations under the Refugees Convention are considered at all will depend on a non compellable discretionary choice made by the Minister.
25.Furthermore, at SZOUY [46(iv)] his Honour construes the words of s 91M, “nationality or some other right to re‑enter and reside in the third country” as requiring the addition of the words, “otherwise arising”. This is necessary to his Honour’s construction of Subdivision AK because it gives the provisions thereof a consistency which they would otherwise lack. It also enables s 91M to have utility as an aid to construction, consistently with his Honour’s reasoning at SZOUY at [46(i)].
26.On their face there is a clear inconsistency between the words of s 91M and the balance of Subdivision AK. According to ordinary principles of construction, s 91M must be given some work to do ‑ it cannot be entirely superfluous. But on his Honour’s reasoning words of limitation need be implied into s 91M to make it consistent with the rest of subdivision AK so that it can become an aid to construction. I submit with respect that his Honour’s construction of s 91M is strained.
27.His Honour’s construction of Subdivision AK is also not consistent with Australia’s obligations under the Refugees Convention. It might be argued that s 91M on its face is not consistent with Australia’s international obligations either (as expressed in e.g. NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161). However, I would submit that a construction that best gives effect to Australia’s international obligations should be preferred. In Minister for Immigration v Teoh (1995) 183 CLR 273, Mason CJ and Deane J said, at 287‑8,
“If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations.”
28.In my submission s 91M qualifies the word, “national” in s 91N(1) by requiring that the nationality of a person to whom that section may apply be “effective” ‑ that is in this case that it would permit him or her to enter and reside in South Korea on the date of the making of a Protection Visa application.
29.This construction would be consistent not only with the words of s 91M, but also with the introductory words of s 91N(2)(a). It does no violence to the wording of the Minister’s discretion in s 91Q. It would merely make it unnecessary for the Minister to consider under s 91Q(2), should he wish to consider exercising the power under s 91Q(1), whether a prospective applicant’s theoretical nationality in a particular country is “effective”.
(footnotes omitted)

Counsel for the Minister supported my reasoning in SZOUY. They submitted:
29.In relation to the argument that the applicant advances in the present case regarding ss 91N(1) and 91N(2) (AWS [22]), the applicant’s recourse to purpose cannot overcome the difference in the terminology in the subsections, with the former referring only to nationality and the latter using the terminology of an immediate right to enter and reside in that country. If the legislature had intended the requirement of “nationality” in s 91N(1) to be assessed in a similar manner to that set out in s 91N(2), it would have been a simple matter for it to include a reference to the right to enter and reside in that subsection, as well as in subsection (2). Instead, the legislature has used that terminology only in s 91N(2)(a), and carved out from the application of that subsection the situation where the “available country”, as defined, is “a country of which the non‑citizen is a national” (s 91N(2)(a)(ii)).
30.Further, s 91Q(2) expressly identifies information that raises the possibility that a non‑citizen might not be able to avail himself or herself of protection from the particular country or countries, by reference to which he or she satisfies s 91N(1) or (2), as a matter that may be relevant to the Minister’s exercise of discretion. Reference to such information in the context of s 91Q indicates that absent the Minister’s exercising his discretion, its presence does not otherwise remove the visa application from the operation of s 91P. Although the applicant contends otherwise (AWS [23], [27]), the scheme of the amendments enacted pursuant to the Amending Act was capable of giving effect to Australia’s international obligations under the Refugees Convention without confining the word “nationality”. In SZOUY, Smith FM considered this to be the case notwithstanding that issues of “effective protection” may only be addressed if the Minister lifts the bar under s 91Q (at [46(ii)]).
31.As to the applicant’s arguments regarding s 91M (at [26]‑[28]), Smith FM’s construction of that section does not render it superfluous. It is important to bear in mind in this context, as his Honour pointed out (at [46(ii)]), that the section is not expressed to perform a definitional role. In particular, it is not expressed to qualify the references to “national” in s 91N(1) and s 91N(6) of the Act. As his Honour observed, those subsections “appear to invite only an investigation of the local laws of nationality, ie citizenship, regardless of what other rights might attach to citizenship, regardless of how the citizenship can be recognised as a practical matter, and regardless of whether it confers nationality which is ‘effective’ under the Refugees Convention”.
I accept the Minister’s submissions.
The applicant’s points concerning s.91N(2) do not persuade me to imply a qualification into the language of s.91N(1). Counsel for the applicant retreated somewhat from his written submission, by conceding that the two classes of potential visa applicants covered by s.91N(1) and (2) are defined in exclusive terms, due to the presence of subparagraph (2)(a)(ii). However, he pointed out in relation to s.91N(2) that the class of non‑dual‑nationality claimants with rights of entry and residence in a third country was conditioned upon a declaration by the Minister listing the third country as an ‘available country’. He submitted that the Minister’s declaration might be open to the same degree of judicial review in relation to ‘effective procedures’, as the High Court has recently found in s.198A(3) in Plaintiff M70/2011 v Minister for Immigration & Citizenship; Plaintiff M106 of 2011 v Minister for Immigration & Citizenship (2011) 280 ALR 18, [2011] HCA 32. He argued that since the declaring of an ‘available country’ under s.91N(3) for the purposes of s.91N(2) required a general assessment of the availability of effective protection in such a country, it would be inconsistent not to imply a requirement for a similar assessment of effective protection when identifying a country of dual nationality for the purposes of s.91N(1).
However, in my opinion, these submissions did no more than point out that the 1999 amendments chose to separate two classes of visa applicants who are required to obtain a discretionary decision of the Minister under s.91Q, before being able to make a valid protection visa application. The amendments then defined two discrete classes of special refugee claimants: those with dual nationality; and those with rights of entry and residence into declared third countries other than by reason of dual nationality. In my opinion, the fact that elaborate provisions were added to define the second class by reference to a list of ‘available countries’ declared by the Minister under s.91N(3) after considering issues of effective protection, merely emphasises that there was no intention similarly to condition the ordinary language of ‘a national’ which was adopted when defining the first class.
Whether s.91N(3) should be given the same construction as s.198A(3) is, in my opinion, open to debate and is best left to another case. I note that in Plaintiff M70 at [48] French CJ thought that Subdivision AK did not “bear upon the operation of s 198A”, because it was concerned with the “circumstances in which a safe third country can be identified for a particular asylum seeker” and “this identification necessarily involves assessment of the asylum seeker’s claims notwithstanding that he or she cannot validly apply for a visa”.This appears to locate in s.91Q rather than in s.91N, the ability for the Minister to recognise Australia’s protection obligations under the Convention in individual cases falling within Subdivision AK. A similar point appears to be made in the judgment of Gummow, Hayne, Crennan and Bell JJ at [122], and in the separate judgment of Keifel J at [225]. In my opinion, these observations in Plaintiff M70 support the construction of Subdivision AK which I accepted in SZOUY, rather than the converse.
In my opinion, the High Court’s reasoning in Plaintiff M70 is consistent with an appreciation that the inclusion of the Minister’s discretion in s.91Q in the scheme of Subdivision AK is intended to give sufficient authority to the Minister to assess and recognise Australia’s international obligations to individual refugee claimants with dual nationality, when considering whether to lift the bar on the making of a protection visa application. If the bar is lifted, the issues of effective protection can then be fully addressed by reference to s.36 of the Migration Act.
It is possible that currently evolving jurisprudence concerning the Minister’s ‘non‑compellable’ discretions may confine the manner in which the Minister must approach an exercise of the discretion in s.91Q, drawing upon how the High Court has recently examined the similar discretion in s.46A. However, the current High Court authorities do not, in my opinion, support giving a restrictive construction of s.91N(1), so as to avoid the uncertainties of the discretion under s.91Q.
I do not accept that my construction of Subdivision AK is “not consistent with Australia’s obligations under the Refugees Convention”. Counsel for the applicant conceded that the Convention leaves to its signatories the legal and administrative procedures by which its obligations may be recognised and implemented in their domestic law. I maintain my opinion that it is not inconsistent with the Convention, nor with the High Court’s jurisprudence in relation to the Convention and its recognition in the Migration Act (cf. Plaintiff M61 (supra) at [27] and Plaintiff M70 at [90] and [98]), that not all refugee claimants may be given legally enforceable access to procedures under the Migration Act which allow the grant of a permanent residence protection visa and access to merits review by the Refugee Review Tribunal. Nor is it inconsistent with Australia’s international obligations that some claimants are required first to persuade the Minister to exercise a discretion exercisable in their individual circumstances, before they are allowed to make a valid application for such a visa and gain access to the usual on‑shore visa determination procedures.
As I concluded in SZOUY, the language of s.91Q(2) expressly recognises that the Minister may take into account individual issues of effective protection in a country of dual nationality or in a declared other ‘available country’. I remain of the opinion that the 1999 amendments intended this discretion to be sufficient for the purposes of enabling the Minister to conform to Australia’s international obligations in relation to people falling within Subdivision AK.
For the above reasons, added to the reasons I gave in SZOUY, I do not accept that the present Tribunal made any error of law when declining to construe s.91N(1) as requiring it to be satisfied that the applicant had a right of entry and access to effective protection in South Korea at the time of his visa application. In my opinion, the present Tribunal made no error when concluding at [134] and [149] of its statement of reasons, that “the term ‘nationality’ in Subdivision AK does not mean ‘effective nationality’”. Ground 1 of the amended application should therefore be rejected.
Ground 2 of the amended application attempts, in my opinion, to make the same contention by construction of s.91N(6). It is in the following terms:
2.The Tribunal misdirected itself in considering the law of the Republic of Korea for the purposes of s 91N(6) of the Migration Act.
Particulars
(a)Failure to consider the practice of the Republic of Korea pertaining to its nationality rather than simply the written words of relevant statutory provisions.
In his written submissions, counsel for the applicant argued:
Ground 2 of the proposed amended application
30.The following paragraphs address ground 2 of the proposed Further Amended Application which is attached hereto. That ground pleads, in essence, that the question of what is a ‘law’ (for the purposes of s. 91N(6) Migration Act cannot be considered solely on the basis of written words which express a rule or norm of behaviour. That question must entail a consideration of the practical effect and application of the relevant rule, including the way that it is affected by other rules.
31.There is little point, for the purpose of these proceedings, in delving too deeply into the jurisprudential debate that has extended for nearly two centuries, as to “what is a law?” (as opposed to “what is the law?”, or “what should the law be?”). It is enough, for the purposes of the matter presently before the Court to cite relevant authority on the issue of whether the content of a foreign law extends to its practical effect and/or application. In Lazard Bros v Midland Bank [1933] AC 289, 298, Lord Wright said:
On what evidence of the foreign law a court can act has been often discussed. The evidence it is clear must be that of a qualified expert in the foreign law. If the law is contained in a code or written form, the question is not as to the language of the written law, but what the law is as shown by its exposition interpretation and adjudication: so in effect it was laid down by Coleridge J in Baron de Bode’s case. In the Sussex peerage case, Lord Denman stated his opinion as to the same effect as he had done in the Baron de Bode’s case. He said that if there be a conflict of evidence of the experts, ‘you (the judge) must decide as well as you can on the conflicting testimony, but you must take the evidence from the witnesses.” (emphasis added)
32.This passage was quoted with approval by Gillard J (within a larger extract) in R v Mokbel [2006] VSC 137 at [25]. Also, in Mills and Anor v Commonwealth of Australia [2003] NSWSC 794 Malpass M criticised evidence of Cambodian law because it did, “… not disclose what assistance may be gleaned from customs, traditions, conscience and equity”, indicating that in the Master’s opinion the practical content of the law of Cambodia is relevant.
33.In the present case the Tribunal considered only the Constitution of the Republic of Korea and the Nationality Act, and interpretations thereof. It did not consider the practice of South Korea in not recognising that a person is a national of that county until he or she had completed certain procedures, which are identified by the Tribunal at CB 372‑3. Nor did it recognise that for practical purposes, South Korean nationality is withheld until those procedures are completed.
34.These are issues which were required to be addressed pursuant to s 91N(6) Migration Act, and the Tribunal’s failure in this respect amounts to jurisdictional error.
(emphasis in original)
However, in my opinion, the principle explained by Lord Wright does not lead to the construction of s.91N(6) contended. It confirms that discovery of ‘the law of that country’ of suggested dual nationality, should be decided by an Australian administrative or judicial body by reference to evidence as to the country’s nationality law provided by qualified experts in the foreign law. It confirms that expert opinions as to authoritative interpretations and adjudications on the text of the foreign law must be assessed, when deciding whether the foreign law conferred dual nationality on a refugee claimant in Australia. However, the principles explained by Lord Wright do not stand for the proposition that an expert’s opinion that the foreign law confers dual nationality in point of law on a refugee claimant is to be discounted or disregarded, because the expert also explains potential non‑legal impediments to the practical recognition of rights attaching to the right of nationality conferred by the foreign law.
In my opinion, an inquiry as to nationality “by reference to the law of that country” pursuant to s.91N(6) requires no more than the discovery of the legal effect of the nationality laws of the country in their application to established attributes of the particular refugee claimant. If the expert evidence is that the nationality law confers nationality by force of law by reason only, for example, of birth in a particular location, then it is not necessary for the decision‑maker to be satisfied also that this species of nationality has any particular prospect of being recognised by agencies of the country of dual nationality, nor that it has any particular prospect of providing ‘effective protection’ by that country to the refugee claimant.
As I noted in SZOUY, it was open to the Tribunal to conclude that the evidence of the two experts showed that, under the South Korean nationality laws, a person born in North Korea “is not granted South Korean citizenship. S/he is already a national (citizen) of the Republic of Korea under the law of the Republic of Korea. But s/he has to have his nationality ascertained in order to live effectively as a citizen of the Republic of Korea” (see the opinion of Dr Lee at Court Book 251). It was open to the Tribunal to conclude that the expert evidence of Mr Hwang was not materially inconsistent with this opinion. I note that the Court Book does not reproduce Mr Hwang’s first report dated 27 February 2010, which made this clear. However, even his second report reproduced at Court Book 286, which explained the difficulties facing a person claiming to be North Korean from achieving recognition of his South Korean nationality without entering South Korea, proceeded upon the common ground that the nationality laws conferred nationality upon birth anywhere in the Korean peninsula. This is implicit, for example, in his opinion at Court Book 294 that “the South Korean nationality that is theoretically conferred upon North Koreans by South Korean law does not constitute a real or an effective nationality”.
In the context of the expert evidence on South Korean nationality laws which was obtained by the Tribunal subsequent to the remitter of the present matter to the Tribunal by Nicholls FM, it was open, in my opinion, to the present Tribunal to conclude on the evidence before it:
146.The Tribunal finds that the applicant had South Korean nationality at the time of application, according to South Korean law, for the reasons that follow. The Tribunal relies on the text of the ROK Constitution (Articles 2 and 3), and its Nationality Act (see paragraphs 106‑108 above), and has considered the various comments and interpretations of these. The applicant has claimed, and the Tribunal accepts, that he was born in North Korea, and that both of his parents were North Korean citizens born in that country. According to ROK law, he is a national of that country as ‘a person whose father or mother is a national of the Republic of Korea at the time of the person’s birth’ (Article 2(1), see paragraph 80 above).
I do not accept that any error of law vitiated this conclusion. It had the consequence that the applicant’s visa application was invalid under s.91P(2), and that the Tribunal had no power to address whether he satisfied the criteria for a protection visa under s.36 of the Migration Act. In my opinion, the applicant’s submissions in relation to Ground 2 amount to no more than disagreements with the merits of the Tribunal’s assessment of the expert evidence. I am unpersuaded by them and that they have established any error of fact or law affecting the Tribunal’s findings.
I therefore consider that no basis for the relief sought in the application has been established in relation to the Tribunal’s decision. The application should be dismissed.

I certify that the preceding twenty‑nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 9 November 2011