SZQYM v Minister for Immigration; SZQYN v Minister for Immigration

[2012] FMCA 1116

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQYM v MINISTER FOR IMMIGRATION
SZQYN v MINISTER FOR IMMIGRATION [2012] FMCA 1116

MIGRATION – Protection visa applications by North Koreans – determined to be invalid by reason of dual nationality of South Korea – application to Court for declarations of jurisdictional facts – South Korean nationality if applicants’ fathers born in North Korea – insufficient probative evidence to show jurisdictional error – applications dismissed.

Evidence Act 1995 (Cth), ss.63, 73, 140(2), 174, 175
Migration Act 1958 (Cth), ss.36, 47(3), 65(1), 91N, 91P, 91Q, 477

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, [1990] HCA 33
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297
Briginshaw v Briginshaw (1938) 60 CLR 336
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Hooda v Minister for Immigration & Citizenship [2012] FMCA 1018
Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649
Minister for Immigration & Immigration v SZGUR (2011) 241 CLR 594, [2011] HCA 1
Plaintiff M70/2011 v Minister for Immigration & Citizenship) (2011) 244 CLR 144, [2011] HCA 32
Qantas Airways Ltd v Gama (2008) 167 FCR 537
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402, [2003] FCAFC 231
Soliman v University of Technology, Sydney [2012] FCAFC 146
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
SZOAU v Minister for Immigration & Citizenship [2012] HCATrans 190
SZOAU v Minister for Immigration & Citizenship (2012) 199 FCR 448, [2012] FCAFC 33
SZOAU v Minister for Immigration &Citizenship (2011) 254 FLR 312, [2011] FMCA 820
SZOUY v Minister for Immigration & Citizenship (2011) 250 FLR 401, [2011] FMCA 347
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

Applicant: SZQYM

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number: SYG 2861 of 2011

Applicant: SZQYN

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number: SYG 2862 of 2011

Judgment of: Smith FM

Hearing date in both matters: 30 October 2012

Delivered at: Sydney

Delivered on: 7 December 2012

REPRESENTATION

Counsel for the Applicants: Mr C McArdle

Solicitors for the Applicants: McArdle Legal

Counsel for the Respondent: Mr D Godwin

Solicitors for the Respondent: DLA Piper

ORDERS

IN MATTER SYG2861 OF 2011

1. The time for making the application provided by s.477(1) of the Migration Act 1958 (Cth) is extended up to and including 14 December 2011.

2. The application is dismissed.

IN MATTER SYG2862 OF 2011

1. The time for making the application provided by s.477(1) of the Migration Act 1958 (Cth) is extended up to and including 14 December 2011.

2. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2861 of 2011

SZQYM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

SYG 2862 of 2011

SZQYN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

1. This judgment is a sequel to my judgments in SZOUY v Minister for Immigration & Citizenship (2011) 250 FLR 401, [2011] FMCA 347, and SZOAU v Minister for Immigration & Citizenship (2011) 254 FLR 312, [2011] FMCA 820, in which I examined determinations made under Pt.2, Div.3, Subdivision AK of the Migration Act 1958 (Cth), which decided that the protection visa applications of two North Korean nationals were invalid because the applicants were dual nationals of South Korea.

2. The present two applicants are in a similar situation.  In separate proceedings which were heard together, they challenge the determinations made in their cases by officers of the Department of Immigration, on the ground that the determinations were affected by jurisdictional errors of fact.  In short, they each present new evidence to the Court to show that they are not dual nationals of South Korea, and seek declarations by the Court that their visa applications are not invalid.  For the reasons which follow, I am not persuaded to grant them any relief.

3. Under Subdivision AK, s.91P(2) provides that an application for a protection visa by a person to whom the subdivision applies is not “a valid application”, unless the Minister has made a non-compellable discretionary decision under s.91Q to allow the visa application to be made. One category of non-citizens to whom the subdivision applies is defined by s.91N(1):

   (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.

4. The concept of being ‘a national’ is not defined, and takes its normal legal meaning. However, s.91N(6) provides:

   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.

5. In my earlier judgments, I held that a determination whether a person is a national for the purposes of s.91N(1) “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” (see SZOAU (supra) at [25]).  I rejected submissions that it also requires an inquiry whether such a nationality is also ‘effective’ or ‘real’ or ‘available’ to the claimant in a practical sense, and whether it would provide protection against persecution equivalent to that provided by the Refugees Convention.  My opinion was upheld by Robertson J, with whom Buchanan and Barker JJ agreed, in SZOAU v Minister for Immigration & Citizenship (2012) 199 FCR 448, [2012] FCAFC 33 at [72]. Special leave to appeal to the High Court was refused on 17 August 2012 (see SZOAU v Minister for Immigration & Citizenship [2012] HCATrans 190).

6. In both of the present cases, determinations were made by officers of the Department of Immigration on 7 November 2011 that the protection visa applications lodged by each of the applicants were invalid under s.91P, because “information indicates that you are a national of The Democratic People’s Republic of Korea (North Korea) and The Republic of Korea (South Korea)”. It was noted that no decisions had been made by the Minister to lift this bar, pursuant to s.91Q.

7. The consequence was that neither the Minister nor his delegates had power to address whether the applicants’ circumstances satisfied the substantive criteria for protection visas (see ss.47(3), and 65(1)). Nor did the applicants have rights to have the administrative determinations of invalidity addressed on their merits by a merits review tribunal. In this respect, I note that the Refugee Review Tribunal was able to address these issues in the earlier Korean cases, because the effect of Subdivision AK was raised for the first time by the Tribunal on its own motion, in appeals from primary decisions which had accepted the validity of the visa applications.

The grounds of review

1. The two present applications for judicial review were filed on 14 December 2011, and were delayed pending the outcome of the above litigation.  The applicants are represented by the same solicitor, who relied at the hearing on grounds which were framed in identical terms in amended applications in both cases, as follows:

   1.The respondent misconstrued and misapplied section 91N of the Migration Act in the following respects.

   (a)Error in construing that provision as not requiring consideration of whether ‘nationality’ as was conferred by the law of the Republic of Korea on the applicant, was effective to give (the applicant) an immediate right to enter and reside in that country.

   (b)Error in finding that s91N of the Migration Act was not to be construed in light of s91M of that Act.

   2.The respondent misdirected itself in considering the law of the Republic of Korea for the purposes of s91N of the Migration Act in the following respects.

   (a)Failure to consider the practice of the Republic of Korea pertaining to nationality rather than the wording of relevant Statutory provisions.

   3.The respondent misdirected itself in failing to consider the facts in so far as they showed that Section 36(2)(a) or (b) of the Act.

   4.The respondent did not enquire as to whether the Applicant is a national of more than one country (which the Applicant denies being).

   5.The respondent did not give the Applicant a change to be heard as to whether (the Applicant) is a national of more than one country. Had the respondent done so, the Applicant would have explained that (the Applicant) is not.

   6.The respondent did not otherwise inform itself of the nationality status of the Applicant.

   7.The respondent did not inform itself of the law of the Republic of Korea (known as South Korea) pertaining to the granting of citizenship upon citizens of the Democratic Republic of Korea (known as North Korea).

   Particulars

   Laws of Republic of Korea

2. In each matter, the relief which is sought is framed:

   1.That a WRIT OF CERTIORARI issue out of this Court removing this decision into this Court to be quashed.

   2.A DECLARATION that the applicant’s application for a Protection Visa is valid.

   3.That a WRIT OF MANDAMUS issue out of this Court requiring the Respondent to consider and determine the Applicant’s application according to law.

   4.Costs.

   5.Any further or other relief that the Court considers appropriate.

3. Clearly, Grounds 1 and 2 are now untenable in the face of the Full Court’s judgment in SZOAU (supra), and the other grounds are poorly focused.

4. Although the applicants’ solicitor did not withdraw or re-frame any of his pleaded grounds of review, I consider that essentially his submissions addressed only one real issue which is now in controversy.  This is whether, on the evidence now before the Court, the Court is satisfied in each case that the applicant is not a national of South Korea and, therefore, that the determination of invalidity is vitiated by jurisdictional error of fact.  If such an error is found, it is common ground that the affected determination should be quashed, and mandamus should issue to require the Minister further to address the merits of the protection visa application.

5. It is unnecessary to explore why the factual issues which determine South Korean nationality can be litigated as ‘jurisdictional fact’, and why a finding of fact by the Court against the existence of the suggested dual nationality would allow the Court to quash the affected determination and to grant other relief. In short, it is common ground that the Migration Act’s provisions which define the ‘validity’ of a protection visa application do not reserve the making of determinations as to the existence of dual nationality to the opinion or satisfaction or administrative discretion of the Minister and his officers, in a manner which insulates the factual merits from direct attack in judicial review proceedings (cf. Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303-304, Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [28], [33]-[38], [60], and Plaintiff M70/2011 v Minister for Immigration & Citizenship (‘Malaysian Declaration Case’) (2011) 244 CLR 144, [2011] HCA 32 at [57]-[58], [107]-[109]).

6. Rather, s.91P is another example of how the Migration Act and its regulations raise issues going to the ‘validity’ of a visa application, without any specific power of determination of these issues, but as objective pre-conditions to the existence of the Minister’s duty to determine a visa application according to the prescribed criteria (see Hooda v Minister for Immigration & Citizenship [2012] FMCA 1018 at [22]-[30]). Although the factual issues posed by the statutory preconditions to the existence of a ‘valid’ visa application are implicitly required to be determined by the Minister and his delegates before disposing of the visa application, a material error of fact or law affecting a determination that the visa application is invalid may be remedied by the Court, based on its own investigation of the true facts and law as shown in evidence tendered to the Court.

7. Even so, as will emerge from my examination of the evidence now before me bearing on the true nationality or nationalities of the present two applicants, the Court may be left in a situation where it is unable to determine the jurisdictional facts for itself in accordance with the necessary standard of proof in civil litigation.  In such a case, the applicant for judicial review will fail to obtain any remedy, since he or she ultimately has the onus of proof and persuasion to establish that the administrative action under challenge was made without statutory authority (see Minister for Immigration & Immigration v SZGUR (2011) 241 CLR 594, [2011] HCA 1 at [67], and Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 at 671-2).

8. Moreover, the Court may also have a discretion in that situation not to disturb a jurisdictional finding of fact made by an administrative agency in an area of its expertise. These possibilities were referred to in the judgment of Gleeson CJ and Gummow, Kirby and Hayne JJ in Enfield City Council (supra) at [50]:

   50.However, it was the task of Debelle J to determine the question of the jurisdiction of the Commission upon the evidence as to "special industry" before him, as opposed to the probative material which had been before the Commission, and upon his construction of the relevant provision. His Honour did so. If, at the end of the day, Debelle J had been in doubt upon a particular factual matter, it would have been open to his Honour to resolve that doubt by giving weight to any determination upon it by the Commission. We do not read Debelle J's reasons as indicating any doubt apt for resolution in this way.

   and by Gaudron J at [60]:

   60.Where, as here, the legality of an executive or administrative decision or of action taken pursuant to a decision of that kind depends on the existence of a particular fact or factual situation, it is the function of a court, when its jurisdiction is invoked, to determine, for itself, whether the fact or the factual situation does or does not exist. To do less is to abdicate judicial responsibility. However, there may be situations where the evidence before the court is the same or substantially the same as that before the primary decision-maker and minds might reasonably differ as to the finding properly to be made on that evidence. In that situation a court may, but need not, decline to make a different finding from that made by the primary decision-maker, particularly if the latter possesses expertise in the area concerned. Even so, in that situation, the question is not so much one of "judicial deference" as whether different weight should be given to the evidence from that given by the primary decision-maker.

9. Moreover, in my opinion, when considering evidence bearing on a person’s possession of a foreign nationality, it is necessary for the Court to be cautious before arriving at a finding for or against the existence of nationality, even on the balance of probabilities.  A court’s determination of a person’s nationality status will be conclusive as between the applicant and the Minister for Immigration for all purposes, and may carry unforeseeable consequences in the future for the applicant and their descendents in their future dealings with the Australian and other governments.  The importance and finality of a finding on nationality, if made by a court, require that it should not be made either positively or negatively, even on a balance of probabilities, without a firm foundation of probative evidence and satisfaction as to findings of fact arrived at confidently.  In short, in my opinion, the nature and gravity of such a finding point to the application of a Briginshaw approach to the standard of proof (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362). This approach is equally pointed to by the considerations listed in s.140(2) of the Evidence Act 1995 (Cth) (see Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [110], [123]-[131].)

10. The significance of a finding by the Court about a visa applicant’s foreign nationality is in contrast with the consequences of an administrator’s opinion on nationality, which may be formed from time to time for the purposes of taking administrative action.  An Australian administrator’s opinion is never final nor conclusive, and is always open to reconsideration in the light of more information or submissions.  When findings on nationality are required to be made in the course of immigration decision-making concerning applicants making asylum claims without any verifiable documentation, the Minister and his delegates are constantly forced to arrive at inconclusive opinions on issues of foreign nationality, on evidence which may be far from satisfying a judge. 

11. I consider that this context points towards the need for me to adopt a considerable degree of caution, when making my own assessment of the evidence which the applicants have tendered to the Department and to the Court in the present cases.

The South Korean laws of nationality

1. In SZOUY (supra) and SZOAU (supra), the Tribunal members who investigated the South Korean laws of nationality did so by reference to opinions obtained by the visa applicants and by its own researchers from experts in South Korean law. No additional evidence as to South Korean law was subsequently tendered in the judicial review proceedings in those cases, and their challenges to the conclusions of the Tribunals that the visa applications were invalid under s.91P(2) proceeded upon only the evidence which had been before the Tribunals.

2. The reliance on expert opinions in those cases was consistent with the common-law principles of evidence for determining applicable foreign law in an Australian court (see Cross on Evidence, 7^th Australian Edition, ed. J.D. Heydon at [41005]).  When considering expert evidence, an Australian judge is able to make his own interpretation of foreign statutes and case law referred to by the expert witnesses, and the weight to be given to the experts’ opinions might depend upon an examination of the sources cited (see Cross on Evidence at [41035]).  

3. The submissions to the Court in those cases were largely focused upon questions of construction of Subdivision AK of the Migration Act. However, both cases included a broad attack on the Tribunals’ findings that the visa applicants held dual nationality of South Korea which prevented their lodging valid protection visa applications in Australia. In my judgments, I considered whether the grounds of review required the Court itself to consider the merits of the Tribunals’ findings as to the effect of the experts’ evidence, including on an assumption that the findings concerned jurisdictional facts. In SZOUY (supra), I concluded:

   40.I do not consider that it is necessary in this judgment to examine more closely the submissions and evidentiary material which was before the Tribunal concerning the legal and practical effects of South Korean nationality laws in relation to North Koreans.  It is enough that I agree with the Tribunal’s conclusion, 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. 

   …

   52.The grounds do not, as I understand them, challenge whether the Tribunal’s opinion that the applicants had, at the date of their visa applications, the right or status of nationality under South Korean law.  My short opinion, is that the Tribunal’s factual conclusion in this respect was both open to it on the expert evidence and supporting material which was before it, and was correct on the same evidence which is now before me.

1. In SZOAU (supra), one of the grounds of review directly challenged the Tribunal’s finding of dual nationality.  I said:

   26.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”.

   27.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). 

   28.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.

2. The grounds of appeal from my judgment in SZOAU (supra) appear to have related solely to the construction of the Migration Act, and the appellant does not appear to have challenged the Tribunal’s factual finding of dual nationality based on a ‘strict’ construction. In the context of the grounds of appeal, I would not understand Buchanan J’s observation in [2012] FCAFC 33 at [6] that “the findings of fact were not reviewable in the court below, and are not reviewable in this Court” as providing clear authority that, in another case, a factual determination of dual nationality for the purposes of ss.91N(1) and 91P could not be open to judicial review on a ground of error of jurisdictional fact established by the tender of further evidence.

3. As I have noted, the Minister accepted that such a challenge was permissible in the present cases, and it was common ground that I should determine afresh whether the present applicants are nationals of both North and South Korea for the purposes of the application of s.91P(2) to their protection visa applications. It was common ground that the applicants would be entitled to relief, if they satisfied me that they were not nationals of South Korea, and thereby established that the contrary determinations made in the decisions under review were affected by jurisdictional errors of fact.

4. For this purpose, both parties accepted that I must first make findings of fact as to the relevant effect of South Korea’s laws of nationality, based on the evidence now tendered before me, and unconstrained and unaffected by the Tribunal’s findings which I had upheld in the previous cases. 

5. I accept the correctness of their common ground.  It is, however, curious that neither party before me tendered the fully reasoned expert opinions which had previously been in evidence in SZOUY (supra) and SZOAU (supra), nor, indeed, tendered any evidence from an expert witness as to the relevant effects of South Korean nationality laws. Rather, the Minister tendered, without objection, English translations of the South Korean Constitution and nationality laws, a judgment of the South Korean Constitutional Court given in 2000, and judgments of the South Korean Supreme and High Courts in 1995 and 1996 which were cited in the 2000 case. I was referred to ss.174 and 175 of the Evidence Act 1995 (Cth) as to the admissibility of this material. I was then invited, without objection, to make my own determination as to the effect of the relevant South Korean laws which would apply to the circumstances of the present two applicants.

6. I retain some hesitation as to the sufficiency for a judicial determination by an Australian court as to a person’s South Korean nationality, of the evidence as to South Korean laws of nationality which was tendered before me, particularly in the absence of any expert opinions on the relevant issues of foreign law.  However, ultimately, the parties’ representatives were in agreement as to the relevant effect of South Korean law.  They agreed that each of the applicants could be found not to have South Korean nationality, if the Court was satisfied that their respective fathers had not been born within the Korean peninsula. In view of their consensus on this, and also, importantly, in view of my inability (which I shall explain below) to make any confident finding one way or the other as to the probable locations of birth of the two fathers, I am content to proceed on the assumption of the parties that sufficient evidence of foreign law has been presented to me.  I would, however, flag that better evidence of foreign law might be required in other cases.

7. In view of the agreement of the parties as to the effect of the present evidence of South Korean laws, it is sufficient for me to explain how this was described in the English translation of the decision of the Constitutional Court of [South] Korea in the ‘Nationality Act Case’, cited as 12-2 KCCR 167, 97Hun-Ka12, August 31, 2000. This case concerned the Constitutional sufficiency of a 1997 amendment to South Korea’s 1948 Nationality Act, which attempted to correct a discriminatory aspect of the previous legislation, but with only limited retrospective benefits. 

8. The Republic of Korea was established in 1948 after the defeat of Japan, and Article 3 of its Constitution asserted sovereignty over territory consisting of the whole of the Korean peninsula and its adjacent islands. The Nationality Act implemented Article 2 of the Constitution, which provided that “nationality in the Republic of Korea shall be prescribed by Act”. The Nationality Act of 1948, as amended subsequently, provides for acquisition of nationality by birth in Article 2:

   Article 2 (Acquisition of Nationality by Birth)

   (1)A person falling under one of the following subparagraphs shall be a national of the Republic of Korea at the time of his or her birth:

   1.A person whose father or mother is a national of the Republic of Korea at the time of his or her birth;

   2.A person whose father was a national of the Republic of Korea at the time of his death, where his father died before his or her birth; and

   3.A person who is born in the Republic of Korea, where both of parents are unknown or have no nationality.

   (2)An abandoned child found in the Republic of Korea shall be recognized as born in the Republic of Korea.

9. Other articles in the Nationality Act provide for the acquisition of South Korean nationality by acknowledgement of a parent, by naturalisation, reinstatement or re-acquisition, election between dual nationalities, and other procedures.  However, none of these articles were contended by the Minister to be relevant to the present applicants’ circumstances.

10. The reference to ‘or mother’ in Article 2(1)1 was inserted by the 1997 amendments, which purported to bring the legislation into conformity with a Constitutional guarantee of equality and non-discrimination on account, inter alia, of sex. However, the transitional provision only gave the benefit of the amendment to a child of a foreign father and a South Korean mother, if the child was born within 10 years preceding the enactment, i.e. after 1987. The 2000 Nationality Act Case considered whether this limited retrospective effect conformed to the Constitutional guarantee, and the Court decided that it did not. It is unnecessary to examine the Court’s reasoning on this point, except to note that the Court also ruled that the amendment would remain effective until further revised.

11. In the present cases, SZQYM asserts that she was born in 1978, and SZQYN asserts that he was born in 1968, and these claims were not challenged by the Minister. The applicants therefore were not covered by the transitional provision of the 1997 amendments which allowed South Korean nationality by birth under Article 2(1)1 to be traced from their mothers. The Minister therefore accepted before me that a determination that either of the applicants have South Korean nationality by heredity under Article 2(1)1 of the Nationality Act would need to rest upon evidence as to the nationality of the applicants’ fathers at the times of the applicants’ births, to discover whether the fathers were themselves nationals of South Korea at those times. He accepted that this, in turn, required findings as to the places of birth of their fathers, since there was no suggestion in any of the evidence that either of the fathers might have acquired South Korean nationality by any other avenue.

12. The Minister did not challenge assertions by both applicants that their fathers were born before the 1948 enactment of the South Korean Nationality Act, in which Article 2 conferred nationality by paternal lineage, and before the establishment of the Republic of Korea. However, he submitted that the effect of the South Korean Constitution and Nationality Act was notionally to confer nationality by birth on all ethnic Korean males alive in 1948 who had been born before that time within the Korean peninsula. In support of that proposition, he referred me to the following discussion of the South Korean Constitutional Court in the Nationality Act Case:

    B.Scope of Nationals

    (1)The Founding Constitution of July 17, 1948 states the qualifications of becoming a Korean national shall be prescribed by law (Article 3). In the same year, the Nationality Act was enacted by Act No.16 on December 20. The Nationality Act was revised three times but only to strengthen the element of one-nationality-one-person by eliminating the possibilities of dual nationality, and has kept the original structure. The basic principles of the Old Law can be summarized as the principles that nationality must be prescribed by statute; the father’s lineage takes precedence in determining one’s nationality; the father takes the central role in determination of one’s nationality; one can have only one nationality; the whole family should have one nationality, etc.

    The New Law, wholly amended by Act No.5431 on December 13, 1997, coincided with our withdrawal of the reservation on the male-female equality clause in the United Nations 1984 Convention on the Elimination of All Forms of Discrimination against Women which we had reserved when we signed on it. There, the father’s lineage clause was revised to conform to the principle of equality and was otherwise revised to conform to the reality and to improve on inadequate provisions reasonably.

    (2)Our Constitution has stated since the Founding Constitution, the territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands. (Article 4 of the Founding Constitution; Article 3 of the current Constitution).

    The Supreme Court has ruled accordingly that North Korea is part of the Korean peninsula and therefore subject to the sovereignty of the Republic of Korea, and therefore that North Korean residency should not interfere with the acquisition of the nationality of the Republic of Korea. Therefore, the Provisional Ordinance on Nationality (South Korean Provisional Government Act No.11, May 11, 1948) stated in Article 2(1) that a person born to a Korean father shall acquire the nationality of Chosun. Then, the Founding Constitution, in Article 3, stated that the qualifications of nationality of the Republic of Korea should be prescribed by statute, and in Article 100, stated that all current laws and rules were effective unless they violated (the) Constitution. So, the Supreme Court ruled that, a person born to a Korean father even though he or she had already acquired a North Korean nationality according to the North Korean law, acquired the nationality of Chosun according to the Provisional Ordinance and then became a national of the Republic of Korea upon the promulgation of the Founding Constitution on July 17, 1948 (Kong 1996 Ha, 3602, 96Nu1221, Supreme Court, November 12, 1996).

    The Minister of Diplomacy and Trade said that, although it may cause a diplomatic problem with a third country or North Korea if we recognize as our nationals those North Koreans residing in the third country or in North Korea outside the reach of our effective control. There is no diplomatic problem in recognizing the nationality of a North Korean resident who already entered our country.

13. The Minister also tendered translations of the 1995 first instance and 1996 appeal judgments of the Korean Supreme and High Courts in the case which was cited by the Constitutional Court in the above passage.  I accept that these judgments appear to support the proposition submitted by the Minister, although I have some doubts about this in the absence of confirmation from an expert witness.  In particular, I am unsure whether the judgments need to be read in the factual context of the 1995 case, in which the foreign-born person whose nationality and deportation from South Korea was in issue had been found to have a father born in North Korea before 1948, but also the father’s own lineage appears to have been traceable in that territory or, at least, to have been described as “Korean”.  I am therefore left with some doubt whether South Korean nationality by birth, held by someone who has never entered South Korea, can be found merely by a finding of birth of their father before 1948 in the territory now controlled by North Korea, or whether it is necessary to trace additional connections of the father to locations in the Korean peninsula.  Particularly, in circumstances where general knowledge suggests that a large ethnic Korean population extends into territory now governed by China.  However, since the applicants’ solicitor did not take such a point, and in view of my difficulties in tracing the present applicants’ fathers to any locations at birth, I do not propose to rest my judgment upon my hesitancy on this point.

The circumstances of Ms SZQYM

1. This applicant’s application for a protection visa was lodged with the Department of Immigration by her present solicitor on 12 May 2011.  It was accompanied by no official or other corroborative documents verifying any of her assertions in relation to her identity, nationality, or family circumstances.  Even the suggested date and manner of the applicant’s entry into Australia rested only on her assertion.  This dearth of independent corroboration has continued into the present proceedings.

2. Her solicitor asserted in his covering letter to the Department of Immigration that the applicant “was born on 12 August, 1978 in North Korea and arrived in Australia on 5 May 2011 … (she) has no official documents with her and entered Australia on a false passport and after her arrival the broker took the passport from her”.  However, the Department of Immigration was, and the Court is now, presented with a person lacking even the most basic independent evidence of identity.  The only overtly ascertainable facts are that she appears to be an ethnic Korean adult woman of uncertain age, and appears able to converse in the Korean language. 

3. The Department’s initial examination of the validity of the protection visa application did not attempt even to verify these matters, but proceeded on an assumption that the applicant’s declared statements were true, as to the date and location of her birth and of her North Korean nationality, and as to these attributes of her father.  This might be an appropriate basis for a preliminary administrative decision on issues of nationality, but it provides far from convincing evidence to support a judicial determination of foreign nationality in the present case.

4. In her visa application, the applicant said that she had “left China voluntarily to come to Australia, because Chinese police force keeps inspecting and chasing after North Korean to send them back to North Korea, and this involves a big life risking danger if we’re sent back”. These claims were amplified in an unsworn statement translated from Korean, which was later forwarded to the Department by the applicant’s solicitor. It is unnecessary for me to detail its contents. Its asserted history has not yet been assessed by any decision-maker attempting to apply the criteria provided under s.36 of the Migration Act. In short, the applicant claimed to have been born in 1978 at a location in North Korea, where her father held a government position. She obtained an education and training as a kindergarten teacher. In 2003, she became concerned that she was suspected of listening to South Korean broadcasting, and “decided to run away to China”.  Helped by her uncle and a ‘broker’, she crossed the border with her sister.  She lived, worked, and attended Church in China, until accepting an offer to purchase a fake passport with an Australian visa.  She flew to Australia from China, but said: “I cannot remember how I got to Australia because I was so airsick all the way”.  She claimed to fear that she would be prosecuted if she were returned to North Korea, because of her listening to South Korean broadcasting, her departure without permission, and her becoming a Christian.  She also claimed that she had been refused assistance by South Korea, and that if she went to South Korea “all of my family members will end up in the concentration camp”.

5. In her visa application, she gave a specific birth date in 1978, and said that her citizenship at birth was “North Korea”.  On Form B she gave the name of her father, and a specific date of his birth in 1938.  She said that his country of birth was “China”, but that his ‘citizenship’ and ‘country of residence’ was “North Korea”.  This information about her father was repeated in the form ‘Personal particulars for character assessment’.  Significantly, the words “North Korean” are written in the box for ‘citizenship or nationality’ and in the adjacent box headed ‘date granted’ there is inserted the words “by birth” and his asserted birth date. 

1. The words ‘by birth’ and the date of birth are written in different handwriting, which appears the same as the ‘additional details’ inserted later in the form.  However, it is difficult to draw any inferences from the different handwriting, in the absence of evidence as to how the forms were completed.  All the statements in the forms are inserted in English, and the applicant has executed a declaration as to the correctness of the information to the best of her knowledge, which is witnessed by a solicitor and accompanied by a certificate of translation.

2. There might appear to be tension in these forms between the applicant’s assertions that her father was born in China and was a North Korean citizen ‘by birth’.  One implication might be that he was born in a location which in 1938 was regarded as being part of ‘China’ but which became part of the territory over which North Korea (and South Korea) later claimed sovereignty.  Another implication might be that he was born somewhere in China outside that territory, but had North Korean citizenship by birth through a descent or other hereditary connection recognised by North Korean nationality law.  These alternatives are speculative, since there is no evidence before me as to the content and effect of North Korean nationality laws in relation to this applicant and her parents.  Moreover, as I shall recount, at the hearing the applicant appeared to withdraw her previous assertion that her father was a North Korean citizen by birth, but without clarification as to an exact location where he had been born in 1938.

3. There is no evidence before the Court of any subsequent communications between the Department of Immigration and the applicant or her solicitor, after the lodgement of the visa application forms.

4. The determination which is now the subject of the present proceedings, is recorded in a letter to the applicant dated 7 November 2011 and signed by the “Manager, Onshore Protection NSW”.  It referred to “various provisions of South Korean law” and to my judgment in SZOUY (supra), and informed the applicant that her application “is therefore invalid because of the application of sections 91N and 91P of the Act”. It told the applicant that she had no right of merits review, but invited her to seek a determination under s.91Q which would allow her to make a new visa application. A request that the Minister exercise his powers under that section was subsequently sent to the Department by the applicant’s solicitor on 12 December 2011, accompanied by a lengthy submission. There is no evidence before me as to its fate.

5. The present application for judicial review of the 7 November 2011 decision was filed on 14 December 2011. It requires a short extension of time under s.477(2) of the Migration Act, and this was consented to by the Minister at the hearing.

6. The applicant swore an affidavit on 3 July 2012 in support of her application to the Court.  It does not seek to modify or explain any of her responses in the forms given to the Department of Immigration, and does not provide any official or other corroborative documents relevant to establishing the identity, birth and nationality of herself or of her parents.  It states only:

   3.I affirm that the facts asserted in the Application and Amended Application are true, to the best of my knowledge and belief.

   4.I have never been to South Korea.

   5.I am not a citizen of South Korea.

   6.I have no knowledge or belief that I can become a citizen of South Korea.

7. At the hearing, additional evidence was led from the applicant by her solicitor, and she was cross-examined.  Her evidence was given with the assistance of an interpreter, and I found it difficult to assess her demeanour as a witness.  She did not impress me as a person of obvious veracity, and her responses to some significant questions appeared prepared or deliberately vague.  In particular, I found to be unsatisfactory her evidence which displayed vagueness as to the location and circumstances of her father’s birth and family antecedents, notwithstanding that she had been able to provide his exact date of birth.

8. In her oral evidence in chief, the applicant said in relation to her parents: “They are in North Korea, but I’m not quite sure where they were born  … I have heard that my father was born in China, but my mum is in North Korea but I wasn’t sure where she was born”.  No evidence was elicited to give a context to how she had “heard” that her father was born in China, to give circumstantial credence to this piece of compressed hearsay.  The applicant said that she had never seen a birth certificate for herself or either of her parents.

9. Under cross-examination, the applicant was questioned about her statement in the visa application form that her father was a North Korean citizen by birth:

   MR GODWIN:  In your application form you said that your father had North Korean citizenship by birth; why did you say that?

   MS SZQYM (via interpreter):     I wrote it that way hoping that Australian government would help me if I write it that way.

   MR GODWIN:  It is your understanding that your father was a North Korean citizen by birth, isn’t it?

   MS SZQYM (via interpreter):     No, my father was not born in North Korea. I have heard that he was born in China.

10. The applicant was also cross-examined on her assertions in her affidavit, and her responses showed that her opinion that she has North Korean citizenship is based on the fact that “I came from North Korea”.  Her opinion that she does not have South Korean citizenship appeared to have no reliable basis.

The circumstances of Mr SZQYN

1. This applicant’s protection visa application was lodged by the same solicitor on 20 April 2011.  His application to the Department of Immigration and to the Court suffers from a similar lack of official documentation or other corroborative evidence as to his identity, date and place of birth, nationality, family origins, and entry to Australia.  His solicitor told the Department that he “arrived in Australia on 29 March 2011 from China…. and entered Australia on a false passport with 12 other people who he believes were Korean/Chinese , and a tour leader. The tour leader took the passport from him”.  There is no evidence that the Department has been able to verify these assertions.

2. The applicant’s unsworn visa statement claimed that he was born in North Korea in 1968.  It said that his father was born in 1934, and died in 1997, and that his mother died in 1992.  Specific dates for their births and deaths were given.  The visa statement said that after their deaths, the applicant “had no relatives and no one I could depend on”, and in 2003 he escaped North Korea by crossing a frozen river.  He then was helped by “an unfamiliar Korean man”, and worked at a fruit farm until he was arrested by Chinese police and was returned to North Korea in 2005.  He was interrogated, tortured, and suffered an injury to his hearing.  He later escaped from a detention centre, and again fled North Korea into China.  In 2007, he was again arrested by Chinese police, and avoided being deported by inflicting self injuries.  In 2011 he paid for a Chinese passport and joined a group of Chinese tourists coming to Australia.  As with SZQYM, all of these claims were uncorroborated and have not been assessed on their merits by any decision-maker.

3. The applicant’s visa application Form B gives no details of any family remaining overseas.  His Form C claims that he has North Korean citizenship by birth.  His ‘personal particulars’ form repeats this claim.  In relation to his father, it gives a 1935 birth date, with “North Korea” as the ‘place and country of birth’.  It does not state his father’s ‘citizenship or nationality’, and states that his father is deceased.

4. The documents from the Department’s file which are in evidence, show that in May 2011 the applicant’s solicitor forwarded a certified photograph, with the observation “FYI: (the applicant) had his biometrics taken at DIAC this morning”.  On 20 May 2011, he was invited to an interview on 6 June 2011, but there is no evidence whether he attended or what transpired.

5. By letter dated 7 November 2011, the applicant was told, in the same terms as was SZQYM, that “your application is therefore invalid because of the application of sections 91N and 91P”.

6. The application to this Court was filed on the same day as that of SZQYM, and also requires a short extension of time, which is consented to by the Minister. 

7. The application is supported by an affidavit sworn by the applicant on 3 July 2012, which states:

   4.I have never been to South Korea.

   5.I am not a citizen of South Korea.

   6.I have no knowledge or belief that I can become a citizen of South Korea.

8. At the hearing, the applicant’s solicitor led additional evidence from the applicant, and he was cross-examined.  All his evidence was given in Korean, with the assistance of an interpreter.  Throughout his attendance in the witness box, the applicant presented himself as a person with impaired hearing.  At times this presentation appeared to me to be somewhat exaggerated, and I found it difficult to assess the extent of any actual impairment, in the absence of an expert assessment of his hearing.  In other respects also, the applicant’s presentation as a witness under questioning was difficult to assess.  He displayed a level of knowledge of his father’s antecedents which appeared implausibly vague, particularly where he had previously provided precise dates of birth and death.  It is possible that my doubts about the reliability of much of his evidence results from difficulties of communication arising from his anxiety, deafness, the use of a translator, and a completely foreign cultural background.  However, I am not confident that these matters fully explain the deficiencies of his evidence, and they cannot overcome the absence of better evidence.

9. In his oral evidence, the applicant was referred to his visa application form by his solicitor and was asked: “Why did you say your parents were born in North Korea?”, to which the applicant responded: “When I first went to the immigration department I feared that I might be sent to China if I say that my parents were born in China”.

10. Under cross-examination, the applicant gave confusing evidence whether he had conversed with his father in Chinese or Korean, and disclaimed ever being told anything about his grandparents’ origins. I had difficulty with these and other uncommunicative responses about his family background, in circumstances where the applicant claimed to have lived with his parents in North Korea until his father died when the applicant was aged 29, even assuming a very difficult life under a totalitarian regime.

11. As with SZQYM, Mr SZQYN’s opinion that he does not have South Korean nationality did not appear to have a reliable basis.

Conclusions

1. As I have explained above, on the common ground in the parties’ submissions to me, a determination of whether these applicants each acquired South Korean nationality by force of South Korean law upon their birth, turns upon a factual inquiry whether their fathers were born in the Korean peninsula prior to 1948, and for that reason had acquired South Korean nationality before the births of the applicants.

2. In my opinion, the manner in which each of the applicants completed their visa forms provided a legally sufficient basis for the administrative decisions which found dual North and South Korean nationalities.  Mr SZQYN’s  forms contained a clear and unequivocal statement that his father had been born in North Korea.  Ms SZQYM’s forms contained some inconsistency, but her responses were open to the interpretation that she had asserted that her father had acquired North Korean citizenship by reason of his birth in 1938 within the territory over which subsequently both North and South Korea claimed sovereignty.

3. I therefore am not persuaded that the decisions made in both cases on 7 November 2011 can be quashed on the ground that there was no evidence in the material before the decision-makers on that date, upon which a finding of dual nationality could have been made (cf. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, [1990] HCA 33 at 355‑357, SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402, [2003] FCAFC 231 at [19] and [28], VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77], and Soliman v University of Technology, Sydney [2012] FCAFC 146 at [23]).

4. Nor am I persuaded that the decisions made on 7 November 2011 were affected by any denial of procedural fairness or other procedural irregularity.  In my opinion, it was open to the decision-makers to rely upon the facts concerning the visa applicants’ parents which were asserted in the visa application forms prepared with the assistance of a solicitor, when considering the validity of the visa applications.  I do not accept that the Department was under any obligation make any additional inquiries, nor specifically to raise the issue of dual nationality with the applicants and their solicitor before making those decisions.  In this respect, I note that there is no evidence led from the applicants or their solicitor that the issue of dual nationality under Subdivision AK was surprising or unexpected (cf. SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [29]).

5. Moreover, as I have explained, there was nothing final or conclusive about the Department’s determinations on the validity of the visa applications, and it was always open (and remains open) to the applicants to seek an administrative reconsideration of the Department’s conclusions about the applicants’ South Korean nationality, and to present additional evidence and submissions to the Department on this issue. On the evidence before me, no such requests were ever made, although SZQYM did apply to the Minister for a decision under s.91Q. Instead, the applicants have chosen to ask the Court itself to determine the jurisdictional facts relevant to the validity of the visa applications.

6. In these circumstances, it appears to me that any procedural deficiencies prior to the decisions made on 7 November 2011, if they were shown to have occurred, have become immaterial to the litigation, and would not now justify the grant of any relief from this Court.

7. I have above explained the caution with which, in my opinion, the Court should approach the evidence now tendered by the applicants, before itself determining the jurisdictional facts bearing on the possession by the applicants of South Korean nationality for the purposes of ss.91N(1) and 91P of the Migration Act.

8. I have noted the complete absence from the cases of either applicant of any official or other corroboration of the asserted facts concerning their identities and family circumstances, and in particular the births of their fathers.  They have presented none of the evidence of identity which would normally be required, even in ordinary business and personal life in Australia, and none of the detailed and cumulative genealogical evidence which would be normally expected to be tendered to gain judicial findings on important issues of civil status. The applicants have presented themselves to the Court only on the basis that their new assertions as to their fathers’ places of birth should be accepted as true, and that the Court should so declare in the absence of better evidence.

9. However, I am not prepared to make any finding concerning the location of the birth of the fathers of either of these applicants. I consider that the totality of their evidence before me in each matter is insufficient to support a judicial determination that the father of either of them was, or was not, born within the Korean peninsula and within the territory over which South Korea has asserted sovereignty for the purposes of its nationality laws. I consider that the evidence of both applicants on this issue was unreliable, and that they have not presented evidence to the Court which allows it to arrive at satisfaction one way or the other as to the critical jurisdictional facts bearing on a determination under ss.91N(1) and 91P.

10. The deficiencies of credence and weight which attends their own evidence as witnesses should be apparent from my above descriptions.  Both applicants have said that they provided information to the Department of Immigration, accompanied by solemn declarations of truth, which they now say to the Court were untrue.  A suspicion that their evidence might have been tailored on both occasions to satisfy their perceptions of self-interest is unavoidable, even if motives to make false statements might be understandable.  Their new evidence was unconvincing, lacking in circumstantial details, and appeared at odds with their asserted precise knowledge of their parents’ dates of birth.  Assessed at its best, the evidence of both of them to the Court showed such uncertainty and vagueness as to what, when, and how, they had been told about the birthplaces and family origins of their fathers, as to cause me to decide that their evidence lacks probative weight sufficient to persuade me to make any findings on the balance of probabilities as to whether or not their fathers held South Korean citizenship on the asserted dates of the applicants’ births in North Korea.  It is unnecessary for me to decide at the threshold whether their evidence bearing on these issues was admissible for this purpose under exemptions from the rules against hearsay in relation to matters of genealogy (cf. Cross on Evidence (supra) at [33205] and following, and ss.63 and 73 of the Evidence Act).

11. For all of the above reasons, I would not make a declaration that either of the applicants is not a citizen of South Korea, nor a declaration that either of their visa applications is not invalid pursuant to ss.91N(1) and 91P of the Migration Act. Nor, had I been asked by the Minister, would I make a declaration that either of the visa applications is invalid under those provisions.

12. After considering all of the evidence and submissions presented by the applicants, I am not persuaded that either of them has established any ground for the grant of any head of relief by the Court.  I must therefore dismiss each of their applications.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Smith FM

Date:  7 December 2012