SZBOV v Minister for Immigration and Multicultural and Indigenous Affairs

i. That the appellant was the subject of close monitoring and surveillance in the period after his release from custody in 1998.

ii. The length of surveillance of North Korean defectors varies according to the individual case.

iii. There is a level of official governmental "annoyance" at North Korean defectors who have participated in law suits against the South Korean Government in relation to the way in which they are treated in South Korea.

iv. The appellant was granted a one year passport rather than the five year passports which are issued to persons born in South Korea.

9. The critical passage in the RRTs decision is as follows: "The applicant obviously sees the failure to issue him with a five year passport as a matter of crucial importance. The Tribunal accepts that he has been treated differently to other Korean citizens in this regard, but does not see that such discriminatory treatment as amounting to 'serious harm', having regard to the examples of harm given in s91R of the Act. The applicant has been unable to explain to the Tribunal's satisfaction that he has experienced any practical difficulty as a result of the failure to give him a passport valid for five years. The fact that he was issued a subsequent passport after the first one expired indicates, to the Tribunal's satisfaction, that the Korean government is prepared to provide him with a passport when he needs one. The Tribunal finds that the discriminatory manner in which North Korean defectors are treated once they are released from detention does not amount to persecution." 10. It is necessary to record also that before dealing with the five year passport issue in the passage which I have set out above, the RRT stated that it was taking an overall view of the appellant's claims. I will set out the passage in full as follows:- "However, taking an overall view of the applicant's circumstances, the Tribunal does not consider that the discriminatory treatment he has experienced is such as to constitute serious harm. Indeed, much of that discriminatory treatment can be considered as positive discrimination. For example, he has been assisted in relation to employment, education and housing."

Discussion 11. The appellant's counsel sought leave to rely upon what amounted to an amended ground of appeal. He did not file in court this morning an amended document but the proposed amendment was set out in his outline of submissions as follows:- "The Federal Magistrate erred in failing to hold that the Refugee Review Tribunal committed a jurisdictional error of law in its construction and application of s91R of the Migration Act 1958, in that 1. the Tribunal should have held that the discrimination to which the appellant was subjected in South Korea amounts to serious harm within the meaning of section 91R(1)(b); 2. the Tribunal wrongly proceeded on the basis that the examples of serious harm in section 91R(2) were an exhaustive description of the circumstances that constitute serious harm." 12. Counsel for the Minister did not take objection to subparagraph (1) of the proposed amendment but he did object to subparagraph 2, observing that this ground was not pursued before the Federal Magistrate. 13. The reasons for judgment of the learned Federal Magistrate set out an accurate summary of the decision of the RRT: see [2] to [11]. The appellant's counsel does not take issue with the way in which the Federal Magistrate dealt with the first three grounds of review raised in the Federal Magistrates Court: see at [13] to [22]. 14. The fourth ground of review was set out in [23] of the reasons for judgment of the Federal Magistrate and I will not repeat it. That ground raised concerns about the way in which the RRT had dealt with discrimination against the appellant by South Korean authorities including in particular the refusal to issue him with a five year passport and the possibility of continuing future surveillance. 15. It seems to me that ground 1 of the proposed amended notice of appeal falls within the fourth ground pursued in the Federal Magistrates Court but the second proposed ground of appeal does not. 16. Leave to argue a new ground should only be granted if it is expedient in the interests of justice to do so: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 ("VUAX") at [46] per Kiefel, Weinberg and Stone JJ. 17. The practice which has been adopted in migration cases is that leave may be granted if a point has "clear merit" and there is no prejudice to a respondent in permitting the point to be agitated. An adequate explanation of the failure to take a point below is required: see VUAX at [48].

Ground One: s91R(1)(b) Serious Harm 18. I will deal firstly with the first ground of appeal since no objection is taken to that ground, although of course counsel for the Minister argues that the ground cannot succeed. 19. As counsel for the Minister submitted, whether conduct is sufficiently serious to constitute persecution is an issue of fact and degree for the Tribunal alone: Prahastona v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 at 269 and 271; Minister for Immigration and Multicultural and Indigenous Affairs v Kord (2002) 125 FCR 68 at [3] and [56]; Das v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 208 ALR 229 at [23]- [24]; VDAU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 32 at [24]; and Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 215 ALR 733 at [51] - [52]. 20. I accept my Reilly's submission that the learned Federal Magistrate correctly held at [24] that the question of whether discriminatory behaviour amounted to persecution is ultimately a question of fact and degree for the Tribunal. In my view no error is established in her Honour's conclusion.

Ground Two: s91R(2) Examples of Serious Harm 21. I turn then to the second proposed ground for which leave is sought to run the point for the first time on appeal. 22. The explanation for the failure to run it before her Honour is that the appellant was not represented in the Federal Magistrates Court. This seems to me to be a sufficient explanation. 23. Mr Reilly did not point to any prejudice to the Minister in permitting the matter to be raised for the first time on appeal, but he submitted that the ground had no merit. 24. Mr Lancaster for the appellant correctly submitted that the essential question which is raised in this ground is whether the RRT in its findings applied section 91R(2) of the Act as an exhaustive definition of "serious harm". If it did, then it fell into serious error; see NBFP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 95 at [52] and following, per Kiefel, Weinberg and Edmonds JJ. 25. I accept Mr Lancaster's submission that the RRT had a duty to apply section 91R(1), and in so doing to determine whether what was said to be persecution involved serious harm to the appellant. Mr Lancaster submitted that the critical passage in the RRTs decision which I have set out above discloses two errors. He points to the very brief reference to "serious harm" in that paragraph, and he says that the errors are as follows. 26. First, that the RRT fell into the error identified by Merkel J in VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332. That is to say that the RRT addressed the question of whether the harm feared fell within the instances set out in section 91R(2) rather than whether the harm feared constituted "serious harm". 27. The second error was said to be that in the critical passage the RRT addressed the question of serious harm by reference only to the five year passport issue rather than by taking into account the cumulative effect of the other instances of discrimination as found by the RRT. 28. It seems to me that I should reject each of the submissions. As to the question of whether the RRT applied section 91R(2) as an exhaustive list or definition of "serious harm", I do not consider that this is disclosed on a fair reading of the relevant passage. In my opinion the RRT was entitled to have regard to the examples given in section 91R(2) because they indicate the kind of harm which the RRT could look to as instances of "serious harm" for the purpose of section 91R(1)(b). 29. In my view, on a fair reading of the passage the RRT considered that the harm suffered in South Korea, including the refusal to issue a five year passport, was not sufficient to amount to serious harm. Moreover, when the RRT said that the appellant had been unable to explain to the RRTs satisfaction that he had experienced practical difficulties, the RRT was considering his circumstances without necessarily confining itself to the examples given in section 91R(2). 30. In my view the failure of the appellant to be able to point to any practical difficulty ruled out the need of the Tribunal for any wider consideration of whether the discrimination amounted to serious harm within section 91R(1). I do not consider that the RRT in considering the question of serious harm limited itself to the issue of the five year passport. This appears from the passage which I have set out in full in which the RRT said that it was taking an overall view of the appellant's circumstances. 31. In short, although in my view the second ground of appeal must fail, I cannot say that it is an argument which is without merit. I would therefore give leave to raise the ground, but having done so, for the reasons given above, I would reject it. 32. As I said earlier no formal amended notice of appeal was filed but it seems to me that the record ought to be completed and that Mr Lancaster should file an amended notice of appeal as soon as convenient. 33. I thank Mr Lancaster who appeared pro bono for the appellant. His written and oral submissions assisted me in considering the issues raised on the appeal. However, the order of the court is that the appeal be dismissed with costs. I certify that the preceding thirty three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Counsel for the Appellant : Mr Lancaster (pro bono)