SZQYM v Minister for Immigration and Citizenship

The appellants, North Korean nationals, appealed against the decision of the Federal Magistrates Court which dismissed their applications for protection visas on the ground that they held South Korean citizenship. The appeal centred on whether the appellants were also citizens of South Korea, a jurisdictional fact that would invalidate their visa applications under section 91P of the Migration Act 1958 (Cth). The primary judge had concluded that the appellants' visa applications provided a legally sufficient basis for the delegate's decision that they had dual nationality. The appellants argued that the delegate made an assumption of fact without any opportunity for them to comment on the issue of their South Korean citizenship, which they claimed was a failure of procedural fairness.

The legal issues before the court were whether the primary judge correctly determined the jurisdictional fact of the appellants' South Korean citizenship and whether the appellants bore the onus of proving this fact. The court had to decide whether the primary judge applied the correct legal standard and onus of proof in determining the jurisdictional fact, and whether the evidence was sufficient to support a judicial finding of South Korean citizenship. Additionally, the court had to consider the admissibility of expert evidence on South Korean law and whether the Minister's application for further evidence was appropriate.

The court found that the primary judge had correctly applied the law and the onus of proof. The court held that the determination of dual nationality was a jurisdictional fact to be decided under section 91N of the Act, and that the onus of proof lay with the appellants. The court noted the seriousness of a court determining a person's nationality but found that the evidence presented was sufficient for the purposes of the appeal, especially given the parties' agreement on the relevant effect of South Korean law. The court also rejected the Minister's application for further evidence, considering the utility and potential expense and delay. The court concluded that the primary judge's decision was not affected by any denial of procedural fairness, as the de novo hearing in the Federal Magistrates Court provided the appellants with an opportunity to be heard and present evidence.

The court allowed the appeal, setting aside the orders of the Federal Magistrates Court and ordering the respondent to reconsider the appellants' visa applications according to law. The respondent was also ordered to pay the appellants' costs in both the Federal Magistrates Court and the appeal.