SZOAU v Minister for Immigration
[2010] FMCA 606
•19 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOAU v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 606 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal failed to have regard to information obtained – must demonstrably engage with information to “have regard” – Tribunal did not have regard to all the information – failure to engage in an intellectual process – jurisdictional error – application allowed. |
| Migration Act 1958 (Cth), ss.36, 54, 421, 424, 430, 476 |
| Tickner v Chapman (1995) 57 FCR 451 Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389 Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 Applicants in V722 of 2000 v Minister for Immigration and Multicultural Affairs [2002] FCA 1009 in SZOCP v Minister for Immigration & Anor [2010] FMCA 296 Xu v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 425; [1999] FCA 1741 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 |
| Applicant: | SZOAU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2850 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 8 April 2010 |
| Date of Last Submission: | 10 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 19 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the Respondents: | Mr D Godwin |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
A writ in the nature of certiorari issue directed to the second respondent quashing the decision made on 19 October 2009.
A writ in the nature of mandamus requiring the second respondent to consider and determine the applicant’s application for review according to law.
The first respondent pay the applicant’s costs set in the amount of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2850 of 2009
| SZOAU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under s.476 of the Migration Act 1958 (Cth) (“the Act”) on 23 November 2009, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 October 2009 which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
Background
The applicant is a national of the Democratic People’s Republic of Korea (“North Korea”). He arrived in Australia on 14 April 1999 and applied for a protection visa on 20 April 2009. (This is reproduced in the Court Book – “CB” – at CB 1 to CB 46, including annexures and a statutory declaration setting out his claims.)
Claims to Protection
The applicant claimed to fear persecution on return to North Korea because of his political opinion.
After having raised concerns about working conditions, he was arrested in March 1994 by the National Police and was detained for some five months while he was interrogated, physically assaulted, and tortured. He was only released upon his wife paying a sum of money to police officers, and was threatened that if he were to “cause any trouble” he would be killed.
On his release he continued to argue for better work conditions. His friend advised him that the factory’s managers had met with government officers. He feared that he would be arrested again. He fled to the People’s Republic of China (“China”) in March 1995.
He came to Australia in March 1999 on a cargo ship. This had been arranged, for a fee, by a “South Korean businessman”. The applicant’s wife and daughter remain in China.
The Delegate
The delegate found that the applicant had a well founded fear of persecution should he return to North Korea. However he had a right to enter and reside in a third country. Namely, the Republic of Korea (“South Korea”). The delegate found that South Korea would provide the applicant with effective protection but that he had not taken all possible steps to obtain such protection. In addition, the delegate found that the applicant would not be persecuted in South Korea. The application therefore was refused (CB 86 to CB 101).
The Tribunal
The applicant applied for review by the Tribunal on 17 July 2009 (CB 103 to CB 108). He was assisted by a registered migration agent (CB 104).
The applicant was invited to and attended a hearing on 15 September 2009 and gave evidence (CB 113 to CB 115 and CB 119 to CB 120). The applicant’s representative was also present, as was a friend (CB 119). The Tribunal’s account of what occurred at the hearing is set out in its decision record ([27] at CB 162 to [44] at CB 166). Following the hearing, by letter dated 29 September 2009 the applicant made an additional submission (CB 128 to CB 129).
The Application to the Court
The sole ground in the application to the Court is:
“The second respondent committed jurisdiction error by failing to take into account evidence and information that it obtained pursuant to s 424(1) Migration Act.
Particulars
(a) Information obtained from the Department of Foreign Affairs and Trade and dated 2005 to the effect that,
(i) The South Korean Act on the Protection and Settlement of Residents Escaping from North Korea (1997) is used to give effect to implement South Korean citizenship, and,
(ii) North Koreans who had resided in another country for a considerable period would find it more difficult to obtain citizenship.”
Hearing before the Court
At the hearing before the Court, Mr L J Karp appeared for the applicant. Mr D Godwin appeared for the respondent. Written submissions were also filed on behalf of the parties.
Both parties agreed that the relevant legislative context for the critical question for the Tribunal arose in the circumstances out of ss.36(3), 36(4) and 36(5) of the Act.
The applicant does not contend error on the part of the Tribunal in its understanding of that section. But it does provide the basis for the Tribunal’s ultimate conclusion that Australia did not have protection obligations towards the applicant.
The Tribunal accepted that the applicant had a well-founded fear of Convention related persecution if he were to return to North Korea and that there was nothing to indicate that he had any right of return to China. However it was satisfied that he had an existing legally enforceable right to enter and reside permanently in South Korea and that, as a citizen of that country, had not taken all possible steps to avail himself of that right. Nor was the Tribunal satisfied that he had a well-founded fear of persecution in South Korea or that he would be returned to North Korea.
The Basis for the Applicant’s Complaint
The applicant’s attack however is that, in considering the question of the right to go to South Korea and coming to its conclusion, there was information that the Tribunal obtained pursuant to s.424(1) of the Act. Yet it failed to have regard to that information in making the decision on the review as it was compelled to do so by s.424(1). This is said to be jurisdictional error.
Section 424(1) is in the following terms:
“… In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.”
Mr Karp relied on authority to submit that the words “considers” and “have regard to” as they appear in s.424(1) require relevantly the Tribunal to do more than just acknowledge the relevant information that it “may get”. It involves contemplation, an active intellectual process and a bringing of the mind to bear upon that information (see Tickner v Chapman (1995) 57 FCR 451, in particular per Black CJ at 462, and per Kiefel J at 495).
Mr Karp says that some of this constituted “additional information” which was not considered by the Tribunal in the sense of actively engaging in an active intellectual process, as required by the second limb of s.424(1). That had the Tribunal had proper regard to this information it may have reached different conclusions that may have led to a different outcome. Its failure to “have regard” was therefore said to be jurisdictional error.
Further, although comments in Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389 per Sackville J were concerned with s.54(1), they are relevant to the current circumstances. See Singh at [57], and in particular at [58]:
“Equally, I do not think that s 54(1) is satisfied merely by the Minister, as the decision-maker, being aware of the information in the application. The expression ‘have regard to’ suggests a process of consideration of information. In order to consider something it is doubtless necessary to know that the thing exists, but more is needed. A decision-maker may be aware of information without paying any attention to it or giving it any consideration.”
It is clear that at the hearing with the Tribunal the applicant and his adviser understood the importance of s.36, and in particular s.36(3), to the disposition of his case. Section 36(3) is in the following terms:
“…Protection obligations
(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.
They asked for more time to make submissions on this point ([43] at CB 166).
The advisor responded with submissions dated 29 September 2009 (CB 128 to CB 129). The applicant’s advisor made reference to what he said were the relevant parts of South Korean law. Namely the: “Act on the Protection and Settlement Support of Residents Escaping from North Korea 1997” (“APSSRENK”). The relevant extracts were taken from another Tribunal decision as set out by the member constituted to consider that case.
The relevant parts are:
1)Article 3: which provides that the Act applies to residents from North Korea and they must have: “… expressed an intention to be protected by the Republic of Korea” (see CB 129.1).
This appears to go to particular (a)(i) to the ground of the application.
2)Article 9: which provides for exclusions from protection in South Korea to persons originally from North Korea, but amongst other things are: “Persons who have for a considerable period of time earned their living in their respective countries of sojourn” (CB 129.10).
This appears to relate to particular (ii) to the ground of the application.
The issue before the Tribunal turned on the applicant being able to go to reside permanently in South Korea as a citizen. The applicant’s case now turns on whether, and to the extent that, those parts of the APSSRENK apply to and regulate rights to citizenship in South Korea.
Mr Karp submitted that the Tribunal conducted its own research in relation to this matter. This is reproduced in its decision record under the heading: “Independent country information” (CB 167). It consists of reports from the Australian Department of Foreign Affairs and Trade (“DFAT”).
The 2004 DFAT Report
The Tribunal referred to a number of relevant reports. The first is dated 28 May 2004 ([49] at CB 167) (“the 2004 DFAT report”). As Mr Karp conceded, that report on its own provides the basis to support the Tribunal’s conclusion that, in effect, any person from North Korea is entitled as a right to South Korean citizenship. That could have been sufficient evidence to ground the Tribunal’s conclusions in relation to ss.36(3), (4) and (5), and indeed s.36(6).
That information sets out the Constitutional position as to how North Koreans would be regarded as “automatically and immediately granted South Korean citizenship” (CB 167.4) (essentially, the “Article 3” point).
This Article provides for a process of investigation. But this is done for the purpose of determining that the claimant is a “genuine North Korean”. The Constitutional position is clear. A North Korean is automatically granted citizenship.
It also lists categories of persons who may not be determined as persons subject to “protection”. For example drug traffickers, terrorists and the like. This is the “Article 9” point. In practice this occurs once the claimant is determined to be a genuine North Korean.
The advice, however, goes on to state that the “decision” to grant citizenship is not discretionary and no “genuine North Korean refugee has ever been refused South Korean citizenship” (CB 167.8).
The 2005 DFAT Report
The Tribunal however also reproduced a “2005 DFAT” document. This is the subject of the applicant’s complaint now and which he says was relevant to a breach of s.424(1) of the Act. This document is reproduced at [50] (CB 167 to CB 169) of the Tribunal’s decision record. In essence this document is a response from the DFAT to questions posed to it in 2005 regarding the treatment of North Korean “defectors” by the South Korean authorities.
The Tribunal recorded:
“In 2005 DFAT responded to a request for information on the treatment of North Korean ‘defectors’ by the South Korean authorities, as follows:
1. Could DFAT please provide clarification and elaboration on DFAT Report No 362 – RRT Information Request: KOR17187, 11 March 2005, which states as follows:
The ‘Act on the Protection and Settlement Support of Residents Escaping from North Korea’ provided that North Koreans who lived outside of North Korea for in excess of ten years would not be accepted as refugees unless there were special circumstances. After 30 years in China, a North Korean would usually be regarded as ‘settled’ by South Korea. Comment: This would not preclude the person from gaining South Korean citizenship, but the person would not be eligible for government financial, employment and settlement assistance.
In particular, does the reference to ‘not accepted as a refugee’ mean that a North Korean who resided illegally in China for in excess of 10 years would not have a legal right to enter and reside in South Korea, or does it simply mean that they would not be classified as a refugee and therefore not entitled to certain government assistance?
Does the reference to ‘be regarded as ‘settled’’ mean, merely settled in an economic sense, or does it imply that the person would be regarded as settled in terms of having legal rights of residency in China?
Could DFAT elaborate on the comment in DFAT Report No. 362 that ‘this would not preclude the person from gaining South Korean citizenship, but the person would not be eligible for government financial, employment and settlement assistance’ and provide some verification of this comment.
2. Are there are laws other than the ‘Act on the Protection and Settlement Support of Residents Escaping from North Korea’ that relate to or have an impact in determining the legal right of a North Korean defector to enter and reside in South Korea?
DFAT replied on 28 November 2005 and provided the following information:
Summary
The Constitution of the Republic of Korea (ROK) states that the ROK’s territory encompasses the Korean peninsula. The Ministry of Unification informs us there is an ‘assumption’ that North Koreans can acquire South Korean citizenship. In certain circumstances, including after an extended period of residence in another country, the process of obtaining citizenship might be more difficult. The term ‘protection’ in the legislation governing citizenship of North Koreans refers only to provision of government financial and other assistance.
In answering questions in reftel, we have drawn on previous advice we provided in October 2004 and March 2005 (reftels). On 25 November, we spoke to an officer of the Settlement Support Division, Ministry of Unification (MOU) for further confirmation and clarification.
2. Article 3 of the Constitution of the Republic of Korea states: ‘The territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands.’ On 12 November, 1996 (in decision no. 96 Nu 1221) the ROK Supreme Court made the following ruling: ‘given that North Korea is part of the ROK’s sovereign territory, holding North Korean citizenship does not adversely affect a person’s right to acquire and hold South Korean citizenship’.
3. Out MOU contact said that, based on the above, there was an assumption that North Koreans would be able to gain citizenship in the South. As the Constitution did not contain rules and regulations for implementation, the Act on the Protection and Settlement Support of Residents Escaping from North Korea (‘the Act’; last amended 24 May 2001) was referred to for this purpose. There were three cases in which the procedure whereby North Koreans could obtain citizenship would be ‘more difficult’.
(i) Members of the ‘Chokyo’ group – people who defected to China around 1960 and legally resided in China (as well as their descendants) – would have to apply for citizenship on the same basis as ‘other foreigners’ (non-Koreans).
(ii) North Koreans who had resided for ‘a considerable period’ (around ten years or more) in another country (see the Act, Article 9(4)) would have to follow different procedures for gaining citizenship, depending on their specific circumstances.
(iii) Terrorists, criminals and others falling into the remaining categories identified in Article 9 of the Act would have to follow a different procedure again to gain citizenship. There had not yet been any such cases (SE25156 para 3 refers).
4. The Ministry of Unification told us in October 2004 that references in the act to ‘protection’ referred to various kinds of financial and other government assistance (SE25156H). This was confirmed by the official we spoke to on 25 November. He said admissibility of applications for government financial and other assistance would be decided by the ROK authorities on a case-by-case basis. Persons who might be assessed as ineligible for this assistance included those falling into the categories set out above.
5. Regarding specific questions about advice in SE550181L:
A. The reference to ‘not accepted as a refugee’ means ‘not classified as a refugee’ and therefore not eligible for government financial and other assistance.
B. The MOU’s usage of the term ‘settled’ in a third country was made in the context of Article 9(4). Persons are regarded as ‘settled’ when they have ‘for a considerable period earned their living in their respective countries of sojourn’.
C. See para 3 and 4 above. This information was provided by the Ministry of Unification in October 2004 or May 2005 and confirmed on 25 November 2005.
D. As indicated above, there is an assumption that North Koreans are able to acquire citizenship, based on the Supreme Court’s interpretation of the ROK Constitution. The rules and regulations governing implementation are laid down in the Act. As cases are decided on their individual merits, other laws relating to immigration management may come into play depending on the circumstances.
E. This would have to be decided by the ROK authorities, with consideration of the factors outlined above (DFAT 2005, DFAT Report 426: RRT Information Request: KOR17673, 28 November – Attachment 1).”
Was s.424(1) Engaged?
I should just note that at the beginning of the hearing I did raise with the parties that the matter before the Court appeared to proceed on the basis that the first limb of s.424(1) had been met. That is, that the Tribunal had engaged in the getting of information such that the second limb requiring mandatory consideration was engaged.
In Minister for Immigration and Citizenship v SZKTI [2009] HCA 30, the High Court held, amongst other things (although dealing with an earlier version of s.424 as a whole), that the Tribunal has, by virtue of s.424(1), a general power to get any information that it considers relevant. That is, it may do so in conducting the review. It is not confined to s.424.
The information that the Tribunal set out at [50] had already been obtained by an earlier constituted Tribunal for the purposes and conduct of another review. This is evident given the date of the document in which the information is contained.
The question posed is whether “may get any information” implies some process of future action given immediacy by: “in conducting the review” such that s.424(1) requires the Tribunal member to take some overt action to “get” information as opposed to looking at information that the Tribunal as a whole already had, and which had not been obtained (“may get”) in conducting the particular current review.
The distinction would rely on the fact that the Act requires a Tribunal member to be constituted for the “purpose of” conducting a “particular review” (s.421(1)).
If the words in s.424(1) (“in conducting the review”) were read in that light would the following words “the Tribunal may get any information that it considers relevant” be limited to circumstances precluding the application of the mandatory obligation in the second limb of s.424(1) to information which is already had?
The Minister initially indicated and was granted a short opportunity to consider whether to pursue this question by way of written submission. The initial response was to seek further time. This was granted. The hearing continued subject to this.
Subsequently this opportunity was not taken up. The current case therefore proceeded on the basis of submissions made up to and including the hearing and conceding that the Tribunal did get the information set out in [50] pursuant to s.424(1). The question for the Court now is whether the Tribunal had regard to the information as is mandatorily required by s.424(1).
The Nature of the DFAT Advice
The DFAT advice as reproduced above involved, amongst other things, the answers to three questions in the context of North Koreans and South Korean citizenship. Relevantly, Mr Karp focussed on the following answers:
“The Ministry of Information informs us that there is an ‘assumption’ that North Koreans can acquire South Korean citizenship. In certain circumstances, including an extended period of residence in another country, the process of obtaining citizenship might be more difficult...
…
Article 3 of the Constitution of the Republic of Korea states: ‘The territory of the Republic of Korea shall consist of the Republic of Korea and its adjacent islands’. On 12 November 1966… the ROK Supreme Court made the following ruling: ‘given that North Korea is part of the ROK’s sovereign territory, holding North Korean citizenship does not adversely affect a person’s right to acquire and hold South Korean citizenship.
Out MOU contact said that, based on the above, there was an assumption that North Koreans would be able to gain citizenship in the South. As the Constitution did not contain rules and regulations for implementation, the Act on the Protection and Settlement and Support of Residents Escaping from North Korea (‘the Act; last amended 24 May 2001 was referred to for this purpose. There are three cases in which the procedure whereby North Koreans could obtain citizenship could be ‘more difficult’.
(i). Members of the “Chokya” group…
(ii). North Koreans who had resided for a ‘considerable period’ (around 10 years or more) in another country (see the Act, Article 9(4)) would have to follow different procedures for gaining citizenship, depending on their specific circumstances.
(iii). Terrorists, criminals…”
As I understood it therefore the information to which the Tribunal should have had regard, and did not, was in essence that people such as the applicant who had resided for a considerable period in another country (in the applicant’s case in Australia for about 10 years and in China for some years before that) could find the acquisition of South Korean citizenship “more difficult” and would have to follow different procedures for gaining citizenship. That these procedures depended on the relevant person’s specific circumstances.
In essence the latter advice, by saying that citizenship in certain circumstances would be more difficult to obtain, qualified the earlier DFAT advice that South Korean citizenship for North Koreans was “automatic” subject to a process to determine their authenticity as having originally come from North Korea.
This latter information was obtained by DFAT from a “contact” in the relevant South Korean government department dealing with such matters (in context from the South Korean Ministry of Unification – “MOU”).
The Issue for the Court
Mr Karp argues that, had the Tribunal had proper regard to this information, it may have come to a different conclusion in the applicant’s case.
In my view that the Tribunal could have come to a different conclusion is peripheral at best. How a Tribunal deals with the evidence, the weight it gives to it, is a matter for the Tribunal. So long as its findings are reasonably open to it no error is generally revealed. That part of Mr Karp’s submissions therefore is not helpful to the issue at hand.
The question is: did the Tribunal have regard pursuant to s.424(1), as that term is properly understood, to the information which the Minister ultimately conceded that it got in conducting the review, and considered it to be relevant pursuant to s.424?
I agree with Mr Karp that the term “have regard” as it appears in s.424(1) requires more than just merely setting out that information in the decision record, particularly under the heading of “Independent country information”. To comply with its mandatory obligation the Tribunal must demonstrably engage with the information.
The authorities relied on by Mr Karp make it clear, and with respect do nothing more extraordinary than reflect those aspects of the ordinary meaning of the word “regard” that contextually relate to this section. That is: “to think of it with a particular feeling”, “to take into account, consider”, “to look at, observe”, “to give thought, attention, concern” (see Macquarie Dictionary: Revised Third Edition). It is in this context that I comprehend what was said by Sackville J in Singh at [58] and by Black CJ in Tickner at 462.
A Comment on the 2005 DFAT Advice
What must be said at the outset is that if the 2005 advice from DFAT as set out above is indicative of advice received by the Tribunal from that organisation then the Tribunal’s already difficult task is made all that much harder.
In my view, far from providing “clarification and elaboration” (CB 167.9) on the questions asked, the DFAT report only served to confuse and in some instances appear to contradict or cast doubt on the earlier clear advice of the 2004 report. In submissions Mr Karp described it as a “bit of a mess”. I can only agree.
For example the 2004 information is very clear that the South Korean Constitution regards North Koreans as citizens of South Korea. This regard is “automatic”. The APSSRENK governs the implementation procedure. In essence, this is that an investigation must be implemented in relation to any North Korean claimant for South Korean citizenship. Once that person has been determined to be a “genuine North Korean”, South Korean citizenship is “automatically and immediately granted”.
Article 9 of the APSSRENK introduced the concept of “protection”. It states that certain persons such as international criminals, terrorists and the like may “not be determined as persons subject to protection.” In context the subsequent reference to “… In practice… citizenship” (CB 167.8) appears to link the concept of “protection” to the grant of citizenship but also and somewhat confusingly because of that links the “automatic” grant of South Korean citizenship to a “genuine North Korean refugee”. But this is explained in the subsequent emphasis that a North Korean who is able to leave North Korea and who is determined to be a genuine North Korean is seen as a refugee and would automatically be granted South Korean citizenship because there is no discretion not to do so.
In contrast the 2005 advice from the South Korean “contact”, an unnamed government official from the South Korean Ministry of Unification, described the Constitutional position as being one of an “assumption” that North Koreans can acquire South Korean citizenship. In my view the word “assumption” qualifies and in fact presents a different view of the Constitution to that earlier reported which made the grant of citizenship automatic and not discretionary once the genuineness of the person (as a North Korean) had been determined.
Further, and again in contrast to the earlier advice, the 2005 information introduces the element of degrees of difficulty in how a North Korean “could obtain citizenship”. These circumstances were said to make the process “more difficult”.
Again the earlier information of an “automatic” grant depended only on a determination of genuine North Korean antecedents and in practice even no known person being refused because of any serious criminal conduct. However this is qualified by a “more difficult” process that could be applied to North Koreans who had resided for a considerable period (around ten years or more) in another country. The greater difficulty appears to be that such persons would have to follow “different procedures for gaining citizenship, depending on specific circumstances”.
No “elaboration” is given as to what these “different procedures” may be. Although at best as this could be understood it moved away from or added to the “automatic” non-discretionary grant once the procedure of establishing the person as a “genuine” North Korean had been implemented.
The 2005 information also sought to address the matter or concept of “protection”. In context in the 2005 information this appeared to be a reference to the APSSRENK and that “protection” in that Act was a reference to government assistance such as various kinds of financial assistance. This appeared to link applications for government assistance to Article 9 of the APSSRENK. In particular, persons falling into the three “more difficult” categories.
The information was that the “admissibility of applications for government and other financial assistance would be decided on a case by case basis”. The persons in the three categories (including those who had been out of North Korea for ten years) may be assessed as ineligible for this assistance.
At least one difficulty with this information is that at one point the more “difficult procedure” is said to refer to the obtaining of citizenship by “the 10 years out of North Korea group” (CB 169.1), who would, because of Article 9(4) of the APSSRENK, have to follow “different procedures for gaining citizenship” (CB 169.3). Yet at the same time references to “protection” in that Act, including in the same Article 9(4) (see [54] at CB 170.6) are also said to refer only to those who seek “protection” in the sense of seeking government financial and other assistance.
This raises the question of why North Koreans in the 10 year category would have more difficult procedures to follow to obtain citizenship if those procedures did not relate to citizenship at all, but to the provision of Government financial and other assistance.
This conundrum is further expanded when the 2005 information seeks to answer the specific question posed as to the meaning of “not accepted as a refugee” in the context of the 10 year group (see CB 167.10 to CB 168.3). The answer is said to be that this term means: “not classified as a refugee” (CB 169.5).
How this relates to the earlier expressed information that the 10 year group would have to follow more difficult procedures to gain “citizenship” as opposed to “protection” (as it is then explained) remained a mystery.
The Minister’s Response
The Minister’s response relied on a number of arguments. To different degrees all relate to the real nature of the DFAT advice and how the Tribunal is then said to have dealt with that advice.
Mr Godwin referred the Court to Applicants in V722 of 2000 v Minister for Immigration and Multicultural Affairs [2002] FCA 1009 per Ryan J at [32]:
“It is a trite proposition that the state and effect of the law of a foreign country are questions of fact; see eg Phipson on Evidence, 15th edn p 974. As such, they are susceptible of proof by expert evidence from a witness suitably qualified to express an opinion about the laws of the relevant foreign State: see eg Re Duke of Wellington [1947] Ch 506 at 514.”
Yes. But in the circumstances of this case and as explained below, I cannot see that this “trite” proposition can assist the Minister.
In part this is because whoever authored the 2005 DFAT report plainly confused the matters of “citizenship”, “protection” and “refugee”, and what procedures with what degrees of difficulties applied to all, or two, or only one of these.
In further part, this is also because the resolution to the question before the Court does not turn on whether the Tribunal complied with the proposition that the state and effect of a law of a foreign country is a question of fact in respect of which the Tribunal had to make a finding.
The issue that the respondent had to address was whether the Tribunal had regard to the 2005 DFAT information. Further that it had regard to it in the way as submitted by Mr Karp and which I accept is the proper way to understand the term “have regard to” as it appears in s.424(1).
Mr Godwin submitted that what Mr Karp has relied on is the Tribunal’s decision record. He characterised Mr Karp’s attack as simply having pointed to one bit of evidence that may have led to a different finding and that the Tribunal did not consider that “evidence” because it did not specifically quote it in its analysis and therefore did not consider its substance.
With reference to the Tribunal’s reasons, the Minister says that the only inferences available to the Court are that the Tribunal did consider this information.
First, the information in question was not before the delegate, nor was there any reference to it in the delegate’s decision. For example, there is no reference in the delegate’s decision to the South Korean Supreme Court’s interpretation of the South Korean Constitution (CB 91 to CB 101). That information appears only in the Tribunal’s decision record (see CB 168.8 and item “D” at CB 169.7).
Further, there was nothing in the letter from the applicant’s representatives relating to the Supreme Court interpretation of the Constitution (CB 128 to CB 129).
Part of Mr Godwin’s submission was that an inference, or support for the inference, can be drawn that the Tribunal had regard to this information because it set it out in full in its reasons.
I do not agree. In my view the Tribunal’s “reasons”, that is its analysis, its thinking about the evidence and claims before it, that is its proper regard, begins at [56] under the heading of “Findings and Reasons”.
What precedes this part is simply a setting out of material and information. The material is provided verbatim. Simply putting this information in its decision record under the heading of “Independent country information” with nothing else does not in my view support any inference that the Tribunal actively engaged with this information.
This point can be illustrated with what I found in SZOCP v Minister for Immigration & Anor [2010] FMCA 296. In that case the Tribunal did not simply reproduce verbatim information put to it, but presented it in an extractive and interpretive way such as to make it obvious it engaged in an intellectual consideration of the material.
The second point of submission regarding the relevant inference to be drawn is that there is no mention of the Supreme Court interpretation of the Constitution appearing in the 2004 report (CB 167), even though, as with the other instances, there are references to the Constitution and to the APSSRENK.
The first reference to the Supreme Court appears in parts of the 2005 DFAT advice (CB 168.8 and CB 169.7). This must be read with reference to what appears in the Tribunal’s “Findings and Reasons” at [65]. In particular:
“… The nature of the Constitutional provision, and its later support by the Republic of Korean Supreme Court, indicates that these procedures simply recognise an already existing right rather then conferring the right once an applicant’s bona fides have been established.”
The argument there is that the inference to be drawn is that the Tribunal has “read” the DFAT document and extracted that information from it.
My difficulty with this submission is that just because the Tribunal may be said to have extracted in its analysis one point, and indeed one point from the 2005 DFAT document, and even if it can be said that it had proper regard to that one part or point, that it then follows that it had regard to the whole of the information and more particularly to the parts of the information relied on by Mr Karp.
At best the inference that can be drawn is that the Tribunal had regard to that part of the information that dealt with the Supreme Court’s relevant finding on the Constitution.
Mr Godwin also attacked what he said was the lack of logic in the applicant’s argument. That is that just because the Tribunal did not expressly refer to the specific passages to which Mr Karp referred in the 2005 DFAT advice and reached a conclusion contrary to what was set out in these passages of the information did not mean that the Tribunal did not “read” those passages.
The relevant question for the Tribunal was whether Australia had protection obligations towards the applicant in light of the Tribunal’s finding that the applicant met the definition of refugee as set out in Article 1A(2) of the Refugees Convention.
The solution to this question arose out of the provisions of s.36(3) to (6) of the Act. That is, was the applicant in the circumstances entitled to South Korean citizenship such that Australia did not owe him protection.
The Tribunal’s Consideration of the Information
Quite properly and necessarily the Tribunal considered the information that it said it had before it and which was relevant to the issue before it. In terms of s.36(3) the Tribunal was concerned as to whether the applicant was able to access a right to be granted South Korean citizenship. Consistent with s.36(6) of the Act, the question of whether the applicant was a national of South Korea (or could be) was to be determined with reference “solely” to the law of South Korea.
This in essence is what the information under the heading of “Independent country information” is about. Section 424(1) requires that the Tribunal having “got” the information to have proper regard to all of it. Did it do so?
The Tribunal’s relevant analysis beginning at [62] to [68] certainly reveals that the Tribunal did have regard to what is set out in the 2004 DFAT report. In essence, that the South Korean Constitution indicates that anyone born on the Korean peninsula and relevantly found to be a “genuine” North Korean is granted citizenship, which in practice is automatic and not discretionary once the South Korean authorities are satisfied that the person is a “genuine” North Korean ([63]).
The Tribunal reasoned that, based on this information, the applicant as a North Korean had the right to enter and remain permanently in South Korea. In that context the Tribunal correctly reasoned if this is the case then s.36(3) (subject to ss.36(4) and (5)) is enlivened and the applicant could not be owed protection in Australia ([64]).
The Tribunal also then went on to consider information that indicated and emphasised that this ability to enter and reside in South Korea was “more than simply a potential right”. It is a constitutional right of those born on the whole of the Korean peninsula ([65]).
The Tribunal also then had regard to information that the South Korean authorities have developed procedures to deal with North Koreans who wished to avail themselves of the right of residence in South Korea. The Tribunal had regard and appeared to accept that the nature of the Constitutional provisions, when also seen in light of South Korean Supreme Court rulings, was not that these procedures recognised an existing right to enter and remain in South Korea. That they were about establishing the bona fides of identity and origin rather than creating the right in themselves ([65]).
It is important to note that the concepts of “citizenship” and “right to enter and reside permanently” appear to be indistinguishable and used interchangeably. This is emphasised in the Tribunal’s findings at [65]:
“In either case, however, the record clearly indicates that those who can demonstrate to the authorities that their origins lie in North Korea are able to access the right to enter and reside permanently in South Korea. As noted, no person found to be genuinely from North Korea has been denied citizenship in South Korea”.
These two terms of course are not the same. For example, in Australia a person may have the right to enter and remain permanently and yet not derive that right from being a citizen.
It is of course the law of South Korea that is relevant here, not Australia. In that regard the information before the Tribunal, even just with reference to the “2004” information, itself confuses the two ideas. What is clear is that, at least up to [65], the Tribunal’s interchangeable references to both its attempts to reconcile the Constitutional and “procedural” aspects provide a clear basis to assert that, in terms of the obligation in s.424(1), it clearly had regard to that part of the information.
However in my view this distinction and the failure of the authors of the DFAT information to understand the distinction let alone address it sits at the core of the difficulty faced by the Tribunal in trying to make sense of all of the DFAT information and arriving at the answer to the critical question it was required to answer.
What must be remembered in this case is not whether the Tribunal’s findings were open to it on the material before it (they clearly were), nor even whether the Tribunal dealt with each aspect of the applicant’s claims (it clearly did). The issue is whether the Tribunal had regard to the information which the Minister concedes it “got” under s.424(1).
All of it.
At [66] to [68] the Tribunal relevantly dealt with the applicant’s specific arguments advanced on his behalf as to why the situation as it relates to South Korea did not absolve Australia from its protection obligations.
At [66] to [67] the Tribunal dealt with the argument that he did not have a legally enforceable right to enter and reside permanently in South Korea because he lacked the requisite intention to live there or seek protection from the authorities.
In addressing this issue, the Tribunal had regard to the APSSRENK. It saw the applicant’s submission as arising from the terms used in that Act and the wording of relevant definitions.
Again it is clear that the Tribunal did have regard to those parts of the DFAT information that related to those parts of the South Korean legislation dealing with “residents” escaping from North Korea that the APSSRENK applies to “residents escaping from North Korea and who have expressed an intention to be protected by South Korea” (CB 172.9). It saw this particular submission by the applicant as arising from those parts of that legislation.
The Tribunal found variously that those parts of the legislation were not concerned with the question of citizenship. Nor that it was concerned with the “protection” of such persons in the Convention sense (CB 173.1)
Rather the Tribunal found that these provisions were directed to the provision of various support to North Koreans when they took up residence in South Korea. The Tribunal reasoned therefore that the applicant’s argument that he refrained from expressing an intention to be protected by South Korea meant that he did not seek economic and other support, rather than affect or renounce his right to enter and reside in South Korea ([66] at CB 173).
The Tribunal also considered the applicant’s claim that he had not approached a South Korean diplomatic mission to arrange entry and residence in South Korea. The Tribunal found that the right to enter and reside in South Korea for the reasons set out above would not be affected by his omission and merely went to the issue that he had not taken all possible steps to avail himself of this right (with clear reference to that part of s.36(3) – [67] at CB 173).
Finally the Tribunal also considered what is said to be the applicant’s second reason for claiming that he did “not have a right to South Korean citizenship” ([68] at CB 173).
Again it is clear that the Tribunal used the terms “right to enter and reside permanently” and “citizenship” interchangeably and indistinguishably. This can be seen with the reference to “second reason” (at [68] as referring clearly to the “first reason”, being that dealt with at [60] – [67]).
This lack of distinction is important in light of the applicant’s ground.
This second reason was said to be that he did not have a right to South Korean citizenship because he would be excluded from being granted citizenship or more precisely from having the right to South Korean citizenship. This was said to be because of Article 9(4) of the APSSRENK. The relevant wording of that part of the Act is set out in the information at item (ii) of 3 at CB 169.3 and [54] at CB 170.6.
The Tribunal made two relevant findings. The first was that on one reading of that part of the Act such a “sojourn” does not appear to exclude an “original” North Korean from protection: “but to suggest only that a lengthy period spent in a country of sojourn may have that effect” ([68] at CB 173.7) (emphasis added).
The Tribunal, consistent with its earlier finding about the use of the word “protection” found that that information suggested that such sojourn cases: “… may present difficulties in deciding questions of protection”. The Tribunal saw the import of this as being emphasised by its finding that the Act does not deal with the question of citizenship but with the practical measures of support available to persons from North Korea. That is the long period of sojourn argument put forward by the applicant did not go to the issue of his right to South Korean citizenship, but to the issue of assistance after he had settled in South Korea.
As I have said repeatedly above, all these findings were open to the Tribunal on what was before it. But the issue for the Court is whether the Tribunal had proper regard to all of the information pursuant to s.424(1).
Consideration
In my view it did not. One part of that information was squarely at odds with the Tribunal’s finding that the “long sojourn” in another country went to the issue of protection (as understood), rather than the issue of citizenship.
One part of the information obtained from the Ministry “contact” was that as set out at CB 168.9 to CB 169.3. The “MOU” contact was clearly reported as saying there was an “assumption” that North Koreans would obtain “citizenship” in the South. That the Constitution did not contain procedures for implementing this, but the APSSRENK did. In this context the contact went on to say that the procedures whereby North Koreans could obtain “citizenship” would be more “difficult”.
“Citizenship”. Not “protection”, however that may be understood. Not “a right to enter and reside”. But the procedures in the Act for the implementation of the grant of “citizenship” would be “more difficult” (CB 169.1) for, amongst other things, those who had resided in another country for a considerable period (about ten years or more) (CB 169.3).
This is emphasised in the information when the “MOU contact” is also reported as saying that the relevant part of the Act (not the Constitution) meant that each person “would have to follow different procedures for gaining citizenship” (emphasis added – CB 169.3).
Again not different procedures for the gaining of protection, or the right to enter and reside, but different procedures for gaining “citizenship”.
On any plain reading of this information the earlier reference (at CB 168.6) to:
“The Constitution of the Republic of Korea (ROK) states that the ROK’s territory encompasses the Korean peninsula. The Ministry of Unification informs us there is an ‘assumption’ that North Koreans can acquire South Korean citizenship. In certain circumstances, including after an extended period of residence in another country, the process of obtaining citizenship might be more difficult”
only serves to reinforce that a part of the information provided clearly stated that the process of obtaining citizenship in certain circumstances could be more difficult and that persons who had sojourned in another country for ten years may have to follow different procedures for gaining citizenship (emphasis added).
It is clear that these parts of the information are inconsistent with other parts which plainly set out the position that the Constitution provides for citizenship for North Koreans once they are determined to be “genuine”. That the APSSRENK provides for procedures for the provision of services and support and had nothing to do with citizenship.
In reality it was these parts of the information on which the Tribunal relied for its reasoning. A reasoning which was logical, cogent and on which it made findings which were open to it.
But it was not a reasoning which revealed that any regard was had to the other parts of the information emphasised and highlighted above.
It may be that the “MOU contact” or the DFAT officials who reported his comments or both really meant to say “protection” (as it was otherwise correctly understood by the Tribunal) when they used the word “citizenship”. But they did not.
The difficulty for the Tribunal is that there is no evidence in its reasoning nor even on a fair reading of its reasoning such that it can be said it had regard to those parts of the information which were inconsistent with the more obvious parts accepted by it.
The attack on the Tribunal is that s.424(1) requires that it must have regard to “that information”. In context this means “any information… it gets which it considers relevant”. The Minister conceded that all of the information set out in its decision record fell into that category.
The Tribunal plainly did not have regard to all of the information. I cannot see that s.424(1) provides any qualification to this. Mr Godwin submitted that the Tribunal does not have to have regard in its reasoning to all the evidence before it. Generally I accept this. But that does not provide an answer to Mr Karp’s attack. The second sentence of s.424(1) must be followed if the first is met.
Mr Godwin submitted that what appears at CB 169.3 (3(ii)) must be understood as answering the question posed to DFAT. These questions were posed as set out at CB 167.8 to CB 168.5. The answers relevantly follow: “DFAT replied on 28 November 2005 and provided the following information…” (CB 168.5).
Relevantly therefore the reference at 3(ii) (CB 169.3) that North Koreans who resided in another country for a lengthy period should be read as answering the question relating to seeking clarification about earlier advice relating to citizenship (see CB 168.1 and CB 168.4).
In short that the reference to “different procedures for citizenship” (as at CB 169.3) must be understood with reference to the request for clarification of the comment that persons who had resided outside of North Korea in excess of ten years would not be precluded from gaining South Korean citizenship but would not be eligible for government assistance.
The argument is that when the Tribunal subsequently says ([68] at CB 173) that “on one reading at least…” this allows the inference to be drawn that it had regard to this material, but ultimately did not accept this reading of it as to its ultimate factual conclusion as to the effect of the legislation.
The thrust of the argument is that even though there was no express reference in its analysis to these parts of the information relied on by Mr Karp, the reasoning was such that an inference can be drawn that it had regard to all the information. But chose, as it was entitled to do, to make findings that were consistent with and derived from other parts of the legislation.
There are clearly cases of this type where inferences can be drawn as to what a Tribunal really meant in the absence of express statements. Even on what it based those findings. Further, I accept that the Tribunal does not as a matter of course have to expressly refer to a piece of information such that it could be said that it had regard to that information. I accept that Tribunal decisions should be read holistically and contextually.
But I cannot agree even on a fair reading of its reasoning that the Tribunal engaged in a proper process of regard, as that term is understood as set out above, in the current case, in the context of s.424(1).
The problem in this case is not originally one of the Tribunal’s making. As I referred to above, the information from DFAT, its lack of precision, its confusion and interchanging of key concepts, its lack of clarity in responding to the real substance of the questions asked, led to two contradictory positions relevantly emerging in the information in relation to the issue of citizenship.
On the one hand South Korean citizenship was said to be in essence an automatic Constitutional right and an existing right to North Koreans subject to a process of ensuring they were “genuine” North Koreans. That references in the APSSRENK to certain procedures and protections were aimed at the determination of provision of government services to such people.
On the other hand there was information that the process of being recognised as a South Korean “citizen” would be more difficult for some and that those like the applicant who had lived for a considerable period in another country would have to follow a different procedure for gaining “citizenship”.
The Tribunal may indeed have found that the APSSRENK does not deal with the question of citizenship. That the Act focussed on procedures leading to protection, as that term was understood. That may have been reasonably open to it on some of what was before it. But the issue is, in coming to this conclusion did it have regard, as is required by s.424(1), to other information that said that in certain circumstances (one of which clearly applied to the applicant) North Koreans could find it more difficult and were subject to different procedures in relation to the grant of citizenship.
Mr Godwin says that the Tribunal’s decision should be read as a whole. If it is then it can be seen that the Tribunal had regard to all the information. That it “extracted” those parts which then formed the basis for its conclusions which were reasonably open to it.
The Minister asserts that there has been an active intellectual process on the part of the Tribunal in relation to all the information. That s.430 does not require the Tribunal to specifically deal with every piece of evidence that is “considered” in that process.
This submission must be rejected on one basis and found to be irrelevant on another.
First, s.430 of the Act does require the Tribunal to set out the evidence and materials on which its finding of fact are based (see s.430(1)(d)). The proposition that the Tribunal does not have to refer to every piece of evidence before it must be seen in light of s.430. Although of course a failure to do so is not jurisdictional error in itself (Xu v Minister for Immigration & Multicultural Affairs (1999) 95 FCR 425; [1999] FCA 1741 at [17], Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [70] per McHugh J).
Second, the issue however is that the Minister cannot rely on this argument to resist an attack based on s.424(1). Section 430 does not provide any licence for the Tribunal to disregard its mandatory obligation pursuant to s.424(1).
The Minister asked the Court to infer that an active intellectual process had been engaged in by the Tribunal. This was based on the way that it had engaged with the information before it, and the meanings ascribed to relevant terms by the Tribunal. Its analysis that ultimately led it to find that the question of citizenship was dealt with as a result of its analysis of the relevant information on the South Korean Constitution and the distinction with the APSSRENK which dealt with procedures of the provision of protection as that term was understood. Such an inference, it is said, can be drawn in the circumstances of this case, and does not require any express reference by the Tribunal to the information highlighted by Mr Karp.
I do not agree. The information that Mr Karp says the Tribunal should have considered is so fundamentally contradictory to the information that the Tribunal expressed that it had considered that it does not allow for any such inference to be drawn. This does not alter whether the analysis is read holistically or fairly.
In may be that the Tribunal saw what was reported from the MOU contact as being contradictory to what had otherwise been clearly reported. Further that the contradictions were left unclarified and unexplained. That is, the difference between the Constitution and the APSSRENK. It may be that this was why the Tribunal preferred the information that it ultimately relied on.
But the nature of the information relied on now by Mr Karp, its contradiction to the information that did form the basis of the Tribunal’s decision was such that in my view does not allow the inference to be drawn. There is nothing in the Tribunal’s analysis to show that it engaged in any intellectual process to identify the contradiction, let alone to properly resolve it.
In these circumstances I cannot be satisfied that the Tribunal had regard, as that term is properly understood in the context of s.424(1) to all of the information that fell within its mandatory obligation to so consider.
Conclusion
On this basis I will make the orders sought by the applicant.
Postscript
For whatever reason the Minister chose not to pursue the issue of whether the information in question came within the ambit of s.424(1). In my view there is at least an argument that can be raised that s.424(1) requires some positive, proactive or forward looking action by the Tribunal to “get” information.
That information already available to it within its own library or databases and not obtained necessarily for the purpose of the conduct of the particular review as required by s.424A(1) does not fall within the first limb of that section and therefore cannot engage the mandatory second limb. But in the circumstances that must be an argument for another day. I can only proceed in this case on the way the applicant chose to plead his case, and the Minister chose to respond.
I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of Nicholls FM
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