NBLC v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2005-08-01|Before: Emmett J

REASONS FOR JUDGMENT 1 The applicant is a citizen of North Korea, who arrived in Australia on 15 November 1996. On 9 December 1999, the applicant lodged an application for a Protection (Class XA) Visa under the Migration Act 1958 (Cth) ('the Act'). On 19 June 2000 the applicant was granted a Subclass 785 (Temporary Protection) Visa for three years, on the basis that he was a person to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol. 2 On 11 February 2003, the applicant applied for a further Protection (Class XA) Visa. On 10 June 2004 a delegate of the first respondent, the Minister for Immigration & Multicultural & Indigenous Affairs ('the Minister'), refused to grant a further protection visa. On 15 July 2004 the applicant applied to the second respondent, the Refugee Review Tribunal ('the Tribunal'), for review of the delegate's decision. On 9 February 2005 the Tribunal affirmed the decision not to grant a protection visa. The decision was published on 1 March 2005. 3 On 29 March 2005, the applicant commenced a proceeding in the Court seeking relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of the decision of the Tribunal made on 9 February 2005. An amended application was filed on 24 May 2005.

THE APPLICANT'S CLAIMS 4 In his original application for a protection visa, the applicant said that he left North Korea because his father had been detained and tortured by the security police, which resulted in his father's death. His mother was thereafter confined to her bed and subsequently died. The applicant was three years old when he became an orphan. He was sent to an orphanage and stayed there until he was 12 years old. He then escaped from North Korea and crossed a frozen river to China. 5 In his application for a further protection visa, the applicant said that he feared persecution by the North Korean authorities by reason of his being the son of a traitor and an escapee from North Korea. In a statutory declaration of 14 September 2004, which was submitted in support of his application to the Tribunal, the applicant said that he feared that North Korean agents and their associates operating secretly in South Korea would mercilessly attack North Korean defectors residing in South Korea. 6 In a submission made on his behalf by migration agents, it was said that defectors in South Korea, although given assistance and citizenship, faced substantial hardships in adjusting to Korean society and faced the risk of kidnapping and forced repatriation to North Korea. The submission claimed that, if the applicant went to South Korea, he would experience extreme hardship in finding a permanent job, would be treated as a second class citizen and would be at risk of retaliation from North Korean agents operating in South Korea. 7 At a hearing before the Tribunal on 27 January 2005 the applicant was asked what he feared, apart from discrimination. He stated that he feared that he would be targeted by North Korean spies in South Korea. The applicant also stated at the hearing that he feared he would suffer psychologically if he needed to reside in South Korea. He said that, because of his experiences in North Korea, he had bad dreams and that, if he was living in South Korea, the proximity to North Korea would heighten his psychological fear and he would be psychologically in distress. He stated that he did not wish to go to a country in close proximity to North Korea and wanted to reside as far away from North Korea as possible. 8 In the course of the hearing, the applicant said that he had heard that discrimination exists in South Korea and that there is a barrier between North and South Koreans. He said that the perception that the South Koreans have about North Koreans is that they do not have any education and come from a country with a very low culture. The South Koreans look down on North Koreans. He also claimed that North Koreans are paid a lot less for the same work as South Koreans. 9 When asked why he would be targeted by North Korean spies in South Korea, the applicant said that he would have the opportunity to give interviews to the media and would be forced to tell them about his story and naturally would criticise the North Koreans for what had happened. When asked whether he would become politically active if he went to South Korea, the applicant said that he did not know until he went there but thought that he would be forced to reveal his story. 10 The applicant said that the emotional fear and psychological fear that he has about North Korea was so great that the Tribunal could not fathom the amount of it. He agreed that he has that fear in Australia but said that if he goes to South Korea where it is so close to North Korea, the fear would be unspeakable and that the psychological fear that he would experience would be more intensified. 11 Following the hearing on 27 January 2005, the applicant's migration consultants wrote to the Tribunal saying that a psychological assessment had been arranged for the applicant in order to analyse his fear of persecution and assess whether his fear 'would be productive of a political noise enough to attract an attention from North Korean agents operating in South Korea'. The report of a registered psychologist was enclosed. The letter written by the applicant's migration consultant said, inter alia, as follows: 'Having read the psychological assessment report, the writer of this submission has had a verbal discussion in great interest with the psychologist… whether it is plausible for [the applicant] with his past experience… to openly express his anger towards the North Korean regime that has persecuted his beloved parents if he goes to South Korea and meet North Korean defectors… [The psychologist] said to me that the other side of fear is anger as well and such course of action is quite plausible.

THE TRIBUNAL'S DECISION 12 While the Tribunal had reservations about the applicant's claim to have escaped an orphanage in North Korea at the age of 12 and crossed the border into China, the Tribunal gave the applicant the benefit of the doubt and accepted that he is a North Korean national. The Tribunal also accepted that defectors from North Korea face execution, torture and imprisonment on their return to North Korea because of their defection. The Tribunal was satisfied that such treatment amounts to persecution by reason of an imputed political opinion and, accordingly, was satisfied that the applicant has a well-founded fear of persecution should he return to North Korea. 13 However, the Tribunal found that North Koreans are entitled to citizenship in South Korea and that the applicant has a legally enforceable right to enter and reside in South Korea. The Tribunal also found that the applicant had not taken all possible steps to avail himself of that right. 14 The Tribunal noted that recent arrivals from North Korea to South Korea can experience difficulties in adjusting to a more modern lifestyle. The Tribunal referred to the applicant's claims that he fears that in South Korea he will be discriminated against in terms of access to employment and social stigma, by reason of the fact that North Koreans are looked down upon. The Tribunal did not accept that the applicant faced harm from North Korean spies operating in South Korea, since the applicant does not have a profile that would give rise to North Korean spies targeting him. Further, since the applicant has been absent from North Korea for over 25 years, having resided in Australia for close to ten years and China for a further 14 years, the Tribunal found that the applicant would not be readily identifiable as a North Korean defector. The Tribunal therefore did not accept that the applicant would face discrimination in South Korea 'of a nature or degree that amounts to serious harm as required by section 91R of the Act'. 15 The Tribunal acknowledged that the applicant may have certain psychological reactions as a result of his life experiences. However, the Tribunal did not accept that residing in South Korea would intensify the applicant's psychological state resulting in displays of anger or evoking repressed unpleasant memories, as was claimed on his behalf. The Tribunal did not find the psychologist's report to be convincing on those points. The Tribunal did not accept that the applicant's residing in South Korea would evoke psychological reactions of a degree or kind that could be classified as serious harm or that would lead the applicant to jeopardise his security. 16 Accordingly, the Tribunal did not accept that the applicant has a well-founded fear of being persecuted in South Korea for reasons of his race, religion, nationality, membership of a particular social group or political opinion.

GROUNDS OF REVIEW 17 The applicant relied on four general grounds upon which he submitted that the decision of the Tribunal was infected by jurisdictional error such that it should be quashed by order of the Court. The first is that the Tribunal erred in concluding that there was no real chance that North Korean authorities would be aware of or interested in pursuing the applicant if he went to South Korea because he did not have a profile that would give rise to targeting by North Korean spies. The second ground is that the Tribunal failed to consider and address the applicant's claim that, if he were returned to South Korea, he would criticise the North Korean government. 18 The third ground is that the Tribunal misconstrued s 36(3) in so far as it found that the applicant had not taken all possible steps to avail himself of the right to enter and reside in South Korea. The fourth ground is that the Tribunal erred in the interpretation and application of s 36(4) of the Act in so far as it found or assumed that the meaning of persecution set out in s 91R of the Act defined persecution for the purposes of s 36(4).

THE APPLICANT'S PROFILE 19 It is clear that the Tribunal perceived the treatment of defectors by the North Korean authorities as treatment by reason of an imputed political opinion. Accordingly, no question arises in relation to the reason for the ill treatment and a relevant Convention reason for persecution in North Korea was identified and accepted by the Tribunal. That is to say, being a defector is enough to give rise to a fear of persecution by North Korean authorities if they are aware of the defection and know of the whereabouts of the defector. That is the position, whether or not a defector has a particular profile. 20 The Tribunal did not accept that the applicant faces harm from North Korean spies operating in South Korea. The Tribunal considered that the applicant does not have a profile that would give rise to North Korean spies targeting him. The applicant contends that the Tribunal's reasoning does not explain clearly why such a profile would be an element of a well founded fear that the North Korean authorities would be interested in identifying defectors in South Korea and taking some action against them. There was no evidence that the North Korean authorities only target or seek to identify high profile defectors in South Korea. Indeed, the applicant contended that the independent evidence suggested that the North Korean authorities are interested in monitoring and classifying all its citizens and that South Korean authorities are concerned that all defectors are likely to be targeted by North Korean agents. The applicant contended that, in so far as the Tribunal made findings by relying on the alleged lack of profile on the part of the applicant, the Tribunal failed to exercise its jurisdiction in so far as its satisfaction was based on findings not reasonably open on the evidence before it. 21 However, a fair reading of the Tribunal's reasons suggests that it was considering the likelihood that the applicant would come to the attention of North Korean spies operating in South Korea. The applicant put forward nothing specific about himself that would attract interest. The Tribunal's reference to profile appears in the same context as its observation that the applicant, having been absent from North Korea for over 25 years, would not be readily identifiable as a North Korean defector. It was open to the Tribunal, on the material before it, to conclude that having a relevant profile was likely to be a risk factor in coming to the attention of the North Korean authorities and any spies that were operating in South Korea. In the absence of a relevant profile the chance of adverse attention was remote. I do not consider that this ground of complaint about the Tribunal's decision is established.

CRITICISM OF NORTH KOREA BY THE APPLICANT 22 The applicant contends that the Tribunal failed to address his claim that he would attract a profile in South Korea because, as there was no language barrier, he would more freely and widely discuss his story and possibly attract media attention. He says that the Tribunal only considered the psychological evidence that was addressed to the issue of psychological harm. 23 However, the Tribunal found that the South Korean authorities are alert to the operations of North Korean spies in South Korea, such that the applicant would be able to avail himself of effective protection from the North Korean authorities. The Tribunal then said: 'The applicant claims that he may when in South Korea voice his opposition to the North Korean regime. In this regard the Tribunal notes the suggestion by the psychologist and the adviser that the applicant may when in South Korea as part of a psychological reaction to his past openly express anger towards the North Korean regime which could then bring him to the attention of North Korean spies in South Korea who might then attempt to kidnap or assassinate him.' 24 The Tribunal, after referring to the additional claim that the applicant would face psychological harm should he reside in South Korea, made its observations that it did not find the psychologists report to be convincing. The Tribunal made an express finding of fact that the applicant's residing in South Korea would not evoke psychological reactions of a degree or kind that would lead the applicant to jeopardise his security. The Tribunal clearly dealt with the claim fairly and adequately. This ground is not established.

SECTIONS 36(3) AND 36(4) - ALL POSSIBLE STEPS 25 The applicant advanced contentions concerning the proper construction of ss 36(3) and 36(4) that were identical to the contentions advanced on behalf of the applicant in NBLB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1051, which was heard at the same time as this proceeding. For the reasons that I have given in that proceeding I do not accept the contentions. Accordingly, the third and fourth grounds are not made out.

CONCLUSION 26 It follows that none of the grounds relied upon by the applicant has been established. The application should be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Counsel for the Applicant: Mr R Beech-Jones and Ms R Francois

Solicitor for the Applicant: Legal Aid Commission of New South Wales

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