SZOYP v Minister for Immigration
[2012] FMCA 403
•16 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOYP & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 403 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – applicants citizens of two countries – whether their protection visa applications were valid applications. |
| Migration Act 1958, ss.36, 47, 91M, 91N, 91P, 91Q |
| SZOUY v Minister for Immigration & Citizenship (2011) 250 FLR 401 SZOAU v Minister for Immigration & Citizenship (2011) 254 FLR 312 SZOAU v Minister for Immigration & Citizenship (2012) 125 ALD 404 SZOXM v Minister for Immigration & Citizenship [2011] FMCA 564 |
| First Applicant: | SZOYP |
| Second Applicant: | SZOYQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 112 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 9 May 2012 |
| Date of Last Submission: | 9 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2012 |
REPRESENTATION
| Counsel for the Applicants: | Mr L. Robison |
| Solicitors for the Applicants: | Legal Aid Commission of New South Wales |
| Counsel for the First Respondent: | Ms A. Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 112 of 2011
| SZOYP |
First Applicant
| SZOYQ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of North Korea who arrived in Australia on 21 February 2010. On 3 March 2010 the first applicant lodged an application for a protection visa alleging that she feared persecution in North Korea because of her religion and because she departed the country unlawfully. Her son, the second applicant, was included in that application as a member of her family unit. On 23 August 2010 a delegate of the first respondent (“Minister”) refused the applicants’ applications for protection visas. The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision.
The Tribunal found that the applications for protection visas lodged by the applicants were invalid pursuant to s.91P(2) of the Migration Act1958 (“Act”) because the applicants were nationals of two countries, North Korea and South Korea. On 21 December 2010 the Tribunal set aside the decision of the delegate to refuse the applicants protection visas and substituted it with a decision that their protection visa applications were not valid and could not be considered. The applicants have applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Relevant legislation
Subdivision AK of div.3 of pt.2 of the Act contains ss.91M, 91N, 91P and 91Q. Section 91M provides:
91M Reason for this Subdivision
This Subdivision is enacted because the Parliament considers that a non-citizen who can avail himself or herself of protection from a third country, because of nationality or some other right to re-enter and reside in the third country, should seek protection from the third country instead of applying in Australia for a protection visa, or, in some cases, any other visa. Any such non-citizen who is an unlawful non-citizen will be subject to removal under Division 8.
Section 91N identifies the non-citizens to whom subdiv.AK of div.3 of pt.2 of the Act applies. It relevantly states:
91N Non‑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.
Section 91P provides that if s.91N applies to a non-citizen then any application for a protection visa by the non-citizen is invalid. Section 91P(2) relevantly states:
91P Non‑citizens to whom this Subdivision applies are unable to make valid applications for certain visas
…
(2)Despite any other provision of this Act but subject to section 91Q, if:
(a)this Subdivision applies to a non‑citizen at a particular time; and
(b)at that time, the non‑citizen applies, or purports to apply, for a protection visa; and
(c)the non‑citizen is in the migration zone and has been immigration cleared at that time;
neither that application, nor any other application made by the non‑citizen for a protection visa while he or she remains in the migration zone, is a valid application.
If an application is an invalid application, the Minister cannot consider it. Section 47(3) provides:
47 Consideration of valid visa application
…
(3)To avoid doubt, the Minister is not to consider an application that is not a valid application.
Section 36(2)(a) of the Act provides a criterion for a protection visa; that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). At the time of the Tribunal’s decision, s.36(2)(a) was qualified by sub-ss.36(3), (4), and (5) which then provided:
36 Protection visas
…
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.
(4)However, if the non‑citizen has a well‑founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.
(5) Also, if the non‑citizen has a well‑founded fear that:
(a)a country will return the non‑citizen to another country; and
(b)the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;
subsection (3) does not apply in relation to the first‑mentioned country.
Background facts
Protection visa application
In her protection visa application and in a statutory declaration dated 24 May 2010 the first applicant made the following claims:
a)she had North Korean citizenship only. Her husband and son, who were both born in China, were also North Korean citizens;
b)she worked as a labourer until 1985 and from then until 2003 her family relied on government support. She and her husband fled to China because they did not have enough food;
c)life was difficult for her and her husband in China, partly because they did not speak Chinese. She and her husband lived in fear of being caught by Chinese authorities and they were upset that their son could not receive an education, thus they decided to leave China;
d)in 2009, an opportunity arose for her to leave China. Just before her departure the Chinese authorities captured her husband and deported him to North Korea where he was imprisoned and viewed as a “traitor”;
e)the North Korean government viewed escapees as traitors and the Chinese government co-operated with them. The North Korean government also sent spies to South Korea to identify traitors and defectors, and to punish them by punishing their remaining family in North Korea. She feared that the North Korean authorities might punish her by executing her husband and family if she were to relocate to South Korea; and
f)she feared that the North Korean authorities would kill or imprison her and her son if they returned to North Korea because of her unlawful departure, which was viewed as a betrayal, and also because of her Christian faith.
Department
The first applicant attended a departmental interview on 16 June 2010 and made the following additional claims:
a)she had had no documents in China, but rather used bribes as needed. Her husband had worked as a casual worker and had not needed documents;
b)she believed that her husband was in North Korea because that was where China sent illegal North Koreans;
c)she and her husband were Christians and she attended church in Australia; and
d)there was a state of war between the two Koreas and she feared for her son’s future there.
The first applicant gave further information by telephone at a second departmental interview on 19 August 2010. She said that her husband was born in China but did not speak Chinese and was a North Korean citizen. She also said that she believed that she and her son had no nationality at that time.
The delegate found that according to the South Korean Constitution and other legislation, North Korean citizens were by law South Korean citizens. Based on this, the delegate found that as the applicants were citizens of North Korea they therefore had a right to enter and reside in South Korea within the meaning of s.36(3) of the Act. The delegate was not satisfied that the applicants had a well-founded fear of Convention-related persecution in South Korea. She found that the first applicant’s claimed fear of harm from spies was not well founded because country information did not support her claim of an escalated risk of harm through her presence in South Korea and the South Korean government had demonstrated a willingness and ability to provide effective protection to North Korean defectors.
Tribunal
The applicants attended a Tribunal hearing which was listed over two sessions.
Prior to the hearing, the applicants’ migration agent made several submissions to the Tribunal. He submitted that the Tribunal should regard North and South Korea as one country for the purposes of s.91N. He also submitted that South Korea granted citizenship to North Koreans only upon application or after they met certain pre-conditions and that North Koreans had their nationality ascertained by South Korean officials, indicating that North Koreans were not automatically regarded as nationals of South Korea.
At the second session of the Tribunal hearing, the applicants’ migration agent repeated the submission that North Korea and South Korea were one nation divided in two, that is, there was one Korea with two governments. He submitted that these two governments were in essence simply competing administrations. He referred to certain country information and submitted that South Korean nationality was granted only after a certain evidentiary burden was met, contending that unless a person met the South Korean expectations, they were in effect stateless.
The first applicant gave evidence at the Tribunal hearing that she would never go to South Korea with her son and that she would prefer to return to North Korea and end her life with her husband. She said that she had gone to church in China for several years and that it would be unsafe for her to attend church in North Korea. She gave further evidence that her husband had attended school in North Korea and had served in the North Korean military for a year or two.
The Tribunal’s decision and reasons
The Tribunal found that the protection visa applications lodged by the applicants were not valid and therefore could not be considered.
The Tribunal was satisfied that the first applicant was born in North Korea and had the nationality of that country. It also found that as the second applicant was the child of North Korean citizens, he was a North Korean national. The Tribunal found that as North Korean nationals the applicants had South Korean nationality at the time of the application and continued to have that nationality according to the laws of South Korea. In this regard:
a)the Tribunal considered that the term “nationality” in subdiv.AK of div.3 of pt.2 of the Act did not mean effective nationality. It concluded that s.91N(6) expressly required that, for the purposes of s.91N(1), nationality had to be determined solely by reference to the law of the relevant country, and not by reference to any assessment of the effectiveness of such nationality;
b)the Tribunal found that North Korea and South Korea were separate states in international law and for the purposes of the Convention, notwithstanding their territorial claims and political declarations calling for reunification; and
c)the Tribunal referred to independent information which indicated that a national of North Korea was already a citizen of South Korea under South Korean laws and did not need to be granted that citizenship.
The Tribunal found that as the applicants were nationals of two countries at the time of their applications, they were subject to s.91N(1) and (6) and were prevented by s.91P from making valid applications for protection visas.
Having concluded that the applicants’ visa applications were not valid because of their dual nationality, the Tribunal found that it did not have to consider the substantive issue of the delegate’s finding that Australia did not have protection obligations towards the applicants pursuant to s.36 of the Act. However, it noted the applicants’ contention that s.36(3) would not apply to them because of a well-founded fear of Convention-related persecution in South Korea and observed that, based on the evidence before it, it would not necessarily have reached that conclusion as it had some concerns that the first applicant had been less than honest and forthcoming in her dealings with it and with the Minister’s department.
Proceedings in this Court
The grounds of the amended application were pleaded as follows:
1.The Second Respondent (the Tribunal) misconstrued and misapplied section 91N of the Migration Act.
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.
Ground 1
The first ground of the amended application was particularised as follows:
a)Error in construing that provision as not requiring consideration whether such “nationality” as was conferred by the law of the Republic of Korea on the applicant was effective to give her an immediate right to enter and reside in that country.
b)Error in finding that section 91N of the Migration Act was not to be construed in the light of the section 91M of that Act.
In their first submissions in support of their application, filed on 11 July 2011, the applicants argued that Smith FM’s decision in SZOUY v Minister for Immigration & Citizenship (2011) 250 FLR 401 employed a strained construction of s.91M. In their submission, s.91M qualified the word “national” in s.91N(1) by requiring that the nationality of a person to whom the section may apply be “effective” – that is, in this case, that it would permit him or her to reside in South Korea. Since that time the Full Court of the Federal Court has heard and dismissed an appeal from Smith FM’s decision in SZOAU v Minister for Immigration & Citizenship (2011) 254 FLR 312, which relevantly dealt with the same issues considered in SZOUY, Robertson J saying:
Having considered the competing submissions founded on textual and structural indications and on the context provided by the Refugees Convention I agree with the conclusion of the federal magistrate that the word “national” in s 91N(1) is not to be construed as involving more than the fact of nationality. (SZOAU v Minister for Immigration & Citizenship (2012) 125 ALD 404 at 415 [72])
In their further outline of submissions filed on 27 April 2012 the applicants submitted that the decision of the Full Court in SZOAU was wrong because, when construing ss.91N, 91P and 91Q of the Act, it ignored s.91M’s reference to a non-citizen being able to avail him or herself of protection of a third country. On the facts, I do not agree with that submission and in this regard note what their Honours said at 405 [3], 408-409 [28]-[36] and 413-415 [60]-[71]. I also refer to what I said in SZOXM v Minister for Immigration & Citizenship [2011] FMCA 564 at [16]-[19].
Ground 2
The second ground of the amended application was particularised as follows:
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.
The applicants submitted that the cases indicate that evidence of foreign law may be challenged if it fails to disclose that law’s full meaning as might be gleaned from customs, traditions, conscience and equity. The applicants submitted that the Tribunal considered only South Korea’s Constitution and the Nationality Act, and interpretations of them, and did not consider its practice of not recognising a person as a South Korean national until he or she completes certain procedures and that, for practical purposes, South Korean nationality is withheld until those procedures are completed.
This submission confuses the Tribunal’s consideration of the underlying fact of nationality with the steps which South Korea requires individuals to take in order to prove that they are, in fact, its citizens. The Tribunal’s reasons disclose no error in its appreciation of the distinction between a right and procedures designed to elicit proof of entitlement to that right.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 16 May 2012
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