SZFIG v Minister for Immigration and Multicultural and Indigenous Affairs

Appellant's submissions 7 In support of the appeal, Mr Andronos of Counsel for the appellant referred to the observation of Tamberlin J in NBCY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 922; 83 ALD 518 ("NBCY") where his Honour said, at [25]; 'Both in principle and on authority "persecution", in the sense of serious detriment or harm to a person, can arise from a threat to their family and those to whom that person is strongly attached by bonds of kinship, love, friendship or commitment.' 8 Tamberlin J went on to endorse in these terms (at [25]) a proposition which had been enunciated by Burchett J in El Merhabi v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 375 (at [16]-[17]); '[S]evere harm to a member of an applicant's family can amount to persecution of an applicant and is clearly relevant to the question of whether an applicant can be said to be in danger of persecution.' 9 Reference was also made to [31] of Tamberlin J's reasons in NBCY where his Honour said: 'The respondent submits and I accept that in the present case South Korea provides an effective police and justice system. However, this case is different from S152/2003. In the present case, the psychological harm of the type anticipated by the applicant is something against which South Korea cannot possibly protect him no matter how effective its police and justice system may be. It is at least arguable that if returned to South Korea, the position is that the applicant will not be provided with effective protection in the very unusual circumstances of this case. I do not need to decide this question because of the conclusion I have reached with respect to the RRT's failure to address an important aspect of the applicant's claim that failure to address the issues raised amounts to an error of jurisdiction. However, this consideration highlights another reason why it is important to address the above impact of any threat to members of the applicant's family.' 10 From that authority and other sources, including the Explanatory Memorandum which accompanied the Migration Legislation Amendment Bill (No. 6) 2004 (Cth) acknowledging that persecution can include the infliction of serious harm by, for example, threats to the lives of people very closely associated with the person seeking protection, Counsel for the appellant argued, first, that the Federal Magistrates Court had taken into account an irrelevant consideration, namely that the harm which the appellant claimed to fear if he were returned to South Korea was the same as that which he would continue to suffer if he were to remain in Australia. 11 That argument was based on the premise that subss 36(3) and (4) of the Act only require, and only permit, the Tribunal, in a case like the present, to assess whether the appellant had a well-founded fear of persecution in South Korea. Those sub-sections provide: '(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.'

12 It was next said that the Tribunal had equated the harm which the appellant claimed he would suffer in South Korea in the form of feelings of guilt and anxiety over the persecution of members of his family remaining in North Korea, with the similar feelings which the appellant would have if he were to remain in Australia. That conclusion, it was said, had been adopted and approved in the Federal Magistrates Court. The reasoning which had led the Tribunal and the Federal Magistrates Court to that conclusion was said to be neither required nor permitted by the terms of the Act and "moreover, would not make any practical sense, given that the appellant has actively sought to invoke Australia's protection obligations and so is not claiming to fear persecution in Australia". 13 It is by no means clear to me that the reasoning of the Tribunal and the Federal Magistrates Court is nonsensical in that way. An applicant for a protection visa must have a subjective fear of persecution in his or her country of nationality and in any third country in which he or she has a right to enter or reside. It is relevant, I consider, to the existence of such a subjective fear of persecution if the applicant expressly, or by implication, disavows having any such fear in a second country where his or her life would not be materially different. Counsel for the appellant also sought to support the contention that a comparison of the harm which the appellant would suffer in Australia andthat which he would suffer inSouth Korea was irrelevant by reason of the terms of Art 33(1) of the Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Refugees Convention"). That paragraph stipulates; 'No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.' 14 The second irrelevant consideration which the Tribunal was said to have taken into account was that harm to the appellant's surviving family members remaining in North Korea had already been triggered by the appellant's defection from that country. 15 It was said that the North Korean authorities could not know at present that the appellant had defected but that they would become aware of this fact were he to be returned to South Korea. Moreover, whilst the appellant could not be certain whether his parents or siblings were still alive, any remaining family members would face an increased liability to persecution upon the North Korean authorities becoming certain that he had defected. 16 It was said to be the appellant's subjective belief that the remaining family members in North Korea would become liable to harm, or further harm, by the North Korean authorities if he were returned to South Korea. It was submitted that the ensuing psychological suffering which that belief would cause the appellant would amount to persecution within the meaning of the Act and the Refugees Convention. It was also claimed that the South Korean authorities would not be able to protect the appellant against such persecution. 17 For the appellant, it was contended that the relevant issue for the Tribunal to consider was the subjective fear of the appellant if he were to be returned to South Korea, not whether his family have already been punished in his absence. The appellant referred to the following exchange between the Tribunal and the appellant's adviser in support of the submission that the Tribunal had taken into account an irrelevant consideration: Member: '… My concern, by the way, is that given his political family background they won't just, the North Koreans won't assume the worst and they might already have done that.'

Adviser: 'But isn't the issue about what he thinks when he's in South Korea and what would happen to him like ……but he has that subjective fear that their lives could be threatened because of his presence that's the issue.'

Member: 'Yes, I mean I'm prepared to consider exactly what Tamberlin has said that everyone should consider, but I have to be satisfied that like it hasn't already happened in a sense.'

Adviser: 'But how could you be satisfied of that? That's impossible.'

Member: 'I shouldn't say satisfied, I'm, actually using language that's giving away just how tired we all are, I have to deal with whether or not its already happened…'

18 In the appellant's submission, subs 36(4) of the Act requires the Tribunal to assess whether or not the appellant would have a well-founded fear of persecution in South Korea. It does not require or permit the Tribunal to consider whether events had already occurred giving rise to the harm that the appellant fears he would suffer were he sent to South Korea. In other words, the Tribunal had exceeded its jurisdiction by finding that the appellant would not have a well-founded fear of persecution in South Korea on the basis that the events which would give rise to the fear of persecution had occurred before his presumptive return to South Korea. 19 A further irrelevant consideration said to have been taken into account by the Tribunal was that harm had already been occasioned to the appellant's family. The appellant referred, in support of this submission, to these findings by the Tribunal [at pp 32, 42 43]; 'As noted, the only close relative who had not already disappeared before the Applicant left North Korea was, in his evidence, his sister, and even she was already doomed, according to some of his claims, simply because he had escaped. According to that evidence, her fate was already sealed no matter where he eventually settled.

The Tribunal accepts the Applicant's original claims about feeling guilty for having already precipitated his sister's demise at the hands of the North Korean authorities (if not also his mother's) by escaping as he did, from North Korea in late 2002.

These conclusions lead to two other conclusions … The second is that the Applicant has already greatly exacerbated the prospect of any surviving family members facing persecution such as continued detention and execution.

The Tribunal also does not accept that as a result of such a benign or neutral attitude, the North Korean authorities would have desisted to date from persecuting the surviving members of the Applicant's family, or that they would continue to desist from such mistreatment until it is confirmed to them that he is residing in South Korea.

The Tribunal concludes on the evidence before it, however, that in the present Applicant's case, the harm to his family that the Applicant now claims to apprehend as a future possibility has already been triggered by his escape from North Korea in 2002. The Tribunal concludes on the evidence before it that the Applicant has already precipitated the persecution of his surviving family members.' (original emphasis)

20 It was contended that inapplying NBCY,as the Tribunal correctly considered appropriate, the relevant question is"if the appellant was returned to South Korea, is there a real chance that the appellant would suffer serious detriment or harm as a result of a threat to his remaining family members in North Korea?" 21 However, the appellant submitted, in asking itself this question, the Tribunal should have assessed whether he held a subjective fear that his family members in North Korea would be harmed if he were returned to South Korea. In circumstances where neither the appellant nor any other person can positively establish the circumstances of any surviving members of the appellant's family in North Korea, it was submitted that the appellant's fear that his return to South Korea will make his family members liable to harm or to further harm by the North Korean authorities continues to be justified. 22 It was contended that the consideration of whether the appellant's family has already suffered harm as a result of the appellant leaving North Korea, as found by the Tribunal, is not a relevant consideration as it does not exclude either or both the possibilities that; (a) the appellant's family would suffer harm or further harm; (b) the appellant would continue to fear that his family might suffer harm or further harm. 23 It was submitted that reliance on the irrelevant consideration that harm had already been occasioned to the appellant's family had led the Tribunal to omit a finding on whether the appellant would have a well-founded fear of persecution in South Korea in the circumstances postulated in subs 36(4) of the Act. That omission, the appellant submitted, meant that the Tribunal had constructively failed to exercise its jurisdiction.

Ground 1: Whether the Tribunal took into account an irrelevant consideration that harm suffered in Australia is the same as that in South Korea 24 In the respondent's submission, under the heading "Claims and Evidence", the Tribunal described a question which the Tribunal had put to the appellant at the hearing, namely that, on his evidence, the thing he feared in the event of residing in South Korea could also be happening whilst he remained in Australia. In the "Findings and Reasons" section of its reasons, the Tribunal found that, whatever the North Korean authorities feared the appellant might know and divulge about North Korea, there was no reason to assume that they would only be concerned upon his arrival in South Korea. 25 The respondent submitted that these passages indicate a finding by the Tribunal that the appellant's presence or residence in South Korea would not, of itself, be a reason for his having a well-founded fear of persecution by the North Korea authorities, either because they would do more harm to his family, or because they would have an increased perception that he might divulge matters about North Korea outside North Korea. It was submitted that the Tribunal was not engaging in a comparison of the real risk of harm to the appellant from the North Korean authorities harming his family if the appellant were in Australia. Rather, in the respondent's submission, the central finding that the Tribunal made was that the appellant faced a real risk of harm to himself if he returned to North Korea, whether he had spent the period outside North Korea in Australia or in South Korea. 26 As set out at [17] above, the appellant relies upon two passages from the transcript of the hearing before the Tribunal. However, in the respondent's submission, those passages were not part of the Tribunal's reasons and do not form a basis for establishing error unless they contribute to an evidential basis for an inference as to the Tribunal's procedure or the proper construction of its reasons. 27 The respondent submitted that the transcript excerpt reproduced at [17] of these reasons reflects the Tribunal member's attempt to explain to the appellant the Tribunal member's reasoning that, on the available evidence, it was likely that the appellant's family had already suffered harm from the North Korean authorities and that there was, therefore, no real risk of harm to the appellant by reason of harm being done to his family in North Korea whether he resided in Australia or South Korea. 28 In relation to the appellant's contention that the Tribunal had erred by engaging in a comparative assessment of persecution of the appellant by the North Korean authorities' harming the family, relative to whether he was in Australia or in South Korea, the respondent submitted that the Tribunal found that it would make no difference whether the appellant was in South Korea or Australia because, on the evidence, the harm to his family had already occurred. The Tribunal found that the appellant himself would suffer persecution if he were to return to North Korea. However, irrespective of where he resided, he would not suffer persecution by reason of harm to his family. 29 In the respondent's submission, Smith FM was correct in holding at [40] of the reasons below that the Tribunal did not err in its approach to the appellant's claims about the harm which his family was likely to suffer in North Korea. Ground 2: Whether the Tribunal took into account an irrelevant consideration of whether psychological harm had already been triggered 30 In the respondent's submission, the Tribunal's decision in the present case is markedly different from that in NBCY where Tamberlin J held that the Tribunal had erred when it summarily dismissed the applicant's claim that his family would be placed at risk on the ground that the family were not the applicants before the Tribunal (NBCY at [12], [13], [15]). It was submitted that Tamberlin J held that, in the circumstances of the case, there had been a failure to take into account a relevant consideration and a failure to consider an integer of the applicant's case and hence jurisdictional error was established (NBCY at [24]-[26]). The respondent submitted that, because the Tribunal in NBCY had failed to take into account the circumstances of the family, it had erred in the application of the question posed by subs 36(3) as to whether the applicant had taken "all possible steps" to avail himself of the right to enter and reside in South Korea (NBCY at [38]) It was submitted that, in that case, Tamberlin J had observed, without making a determination, that the Tribunal may have made a consequential error of failing to consider whether the applicant fell within one of the specific exceptions to subs 36(3), which are set out in subs 36(4) (NBCY at [39]-[40]). 31 In the present case, however, it was submitted, there can be no suggestion that the Tribunal failed to take into account a real risk of harm to the appellant by reason of his fear for his family. 32 The respondent submitted that the appellant's submission fails to recognise that the Tribunal made a finding as to the appellant's current psychological state because it was required to do so. It was submitted that the Tribunal took into account, as an integer of the appellant's claim, his assertion that he had a well-founded fear of persecution by reason of his fears about the harm to his family. However, the respondent submitted, the Tribunal plainly found that the appellant's psychological state has been caused by his fear that his family had already been harmed. That finding had been based on a medical report provided by the appellant. In the respondent's submission, the learned Federal Magistrate correctly inferred from the Tribunal's reasons a finding that, since this psychological state already existed, it could not, in the future, be caused or exacerbated by his presence in South Korea. 33 The respondent submitted that, for the purposes of subs 36(4), the question was whether the appellant had a real chance of suffering persecution (psychological harm consisting of fear for his family) in South Korea for reasons of political opinion. Contrary to the submission of the appellant, the respondent submitted, the Tribunal had considered whether the appellant had a well-founded fear of persecution for the purposes of subs 36(4) by reason of what might happen to his family and had made an express finding that the subsection did not apply because: (i) the Tribunal accepted that the appellant already felt guilty about precipitating the persecution of his family members; (ii) the appellant did not face a real chance of abduction in South Korea by North Korean spies; (iii) the appellant did not face a real chance of assassination in South Korea as a defector; (iv) in South Korea he would not be forced to publish his memoirs; (v) it did not accept the appellant's claim about a Mr Shim working for the South Korean Consulate having accused him of being a spy. 34 The respondent submitted that there could be no causal connection between the actions of non-State actors in South Korea and the psychological harm which the appellant claimed to fear. In determining the cause of the psychological harm, it was incumbent upon the Tribunal to make a finding as to the appellant's current psychological state and such a finding could not be regarded as an irrelevant consideration. There could not sensibly be any failure of State protection on the part of Australia in South Korea in relation to the harm claimed. It was submitted that, unlike those in NBCY, the circumstances of the present case did not support a finding that a return to South Korea would cause psychological harm to the appellant by reason of fear of harm to his family. 35 In the respondent's submission, having correctly concluded that subs 36(4) of the Act did not apply, the Tribunal properly considered the application of subs 36(3). There was no error in the Tribunal's construction of subs 36(3) or its consideration of NBCY and the appellant had made no claim of error in either of those respects. The respondent submitted that the Tribunal's approach was consistent with the construction of subs 36(3) adopted by the Full Court in NBLC; NBLB v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 151 namely that subs 36(3) directs attention to an applicant's taking steps to avail himself or herself of a right to enter and reside in a country and is not directed to the consequences of entering and residing in that country.

Relief 36 In the respondent's submission, neither Ground 1 or Ground 2 invoked by the appellant had been made out. No ground of review founded on jurisdictional error had been established. Accordingly, the decision of the Tribunal, it was submitted, fell within the statutory description "privative clause decision" in s 474 of the Act.

Disposition of the appeal 37 I accept, as was made clear in El-Merhabi and NBCY, that harm, or the threat of harm, to an applicant's family can give rise to a well-founded fear, on the part of an applicant, of being persecuted, within the meaning of Art 1A(2) of the Refugees Convention. The question which arose for the Tribunal when called upon to consider the application of subss 36(3) and (4) of the Act was whether the appellant would have a well-founded fear of persecution in South Korea constituted by the infliction, or threat, of harm to a member or members of his family. 38 The Tribunal, correctly, in my view, identified as one of the enquiries to be undertaken, in determining the applicability of subss 36(3) and (4), as that into "whether he or she has a well-founded fear of being persecuted for a Convention reason in the third country itself." It concluded, in effect, that the appellant's subjective fear of persecution by the infliction or threat of harm to members of his family would not be materially different whether he were in South Korea or Australia. Thus, the Tribunal observed, at p 17 of its reasons; 'The Applicant's position is that that form of torture would not begin until he enters and resides in South Korea, and yet much of his evidence argues that this form of harm has already begun, simply because his absence from North Korea will already have been noted. In addition, the Tribunal notes that the Applicant has already taken the risk of residing in South Korea for a month or more.' 39 In a related way, the Tribunal discounted fears, which the appellant claimed to entertain, that harm to members of his family in North Korea would be intensified if it were known that he was in South Korea. In that context, the Tribunal observed, at pp 18-19 of its reasons; 'At the RRT hearing, the Applicant said he already felt guilty about the danger in which he had already placed his sister. The Tribunal drew his attention to the fact that he had already indicated that his family was already in serious trouble with the North Korean authorities. The Applicant confirmed the claim about his mother having been arrested and detained, but speculated that she may have been released. This was an unsupported assertion and much of the Applicant's evidence as to the negative implications of his escape for the rest of his family would appear to give him no logical reason to assume his mother has been released.

The Tribunal put it to the Applicant that his actions to date appeared to be enough to precipitate the persecution of his entire family. The Tribunal put it to him that on his evidence, the thing he feared in the event of residing in South Korea could also be happening whilst he remained in Australia.

In reply, the Applicant seemed to retreat from earlier claims, saying that since 2000, North Korean authorities have not been as harsh to relatives of escapees due to the assumption that the escapees were merely fleeing the famine, and due also to the very great numbers involved. He said that in his case, the authorities might merely assume that he is missing in the provinces somewhere, rather than suspect that he has escaped across the border.

The Tribunal permitted the Applicant's adviser to sum up the Applicant's position, which was that the North Korean authorities might merely assume that the Applicant has drowned in the attempt of escaping until they receive confirmation of his presence in South Korea. The implication here is that as long as the authorities assume the Applicant has made an unsuccessful escape attempt, they will not harm or further harm the Applicant's family. The problem with this position is that it does not sit with all of the independent evidence about the North Korean authorities making examples of traitors. This position takes an optimistic view of the potential attitude of the North Korean authorities, one that is at odds with the Applicant's original evidence and also at odds with independent evidence.

The factor that appeared to prompt the Applicant to change his evidence here was the explicit suggestion that his protection from psychological persecution, over the persecution of his family, could no more be guaranteed in Australia than in South Korea.

The Tribunal put it to the Applicant that, on his evidence, he was already concerned that his entire family were already being persecuted. In reply, he said, "Yes." However, he also said that as long as the North Koreans did not yet know his location, they might only monitor his family members. Nevertheless, this is not what the Applicant claimed initially.' (original emphasis)

40 That method of reasoning was eminently open to the Tribunal as a foundation for the factual conclusion that the appellant would not have a subjective fear of persecution in the event of being returned to South Korea. It cannot avail the appellant that this Court or the Federal Magistrates Court, if deciding the matter for itself, would not have applied the logic which commended itself to the Tribunal; see eg Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gleeson CJ and McHugh J at [55]-[56] and per Gummow J at [147]. 41 Accordingly, I can discern no error in the learned Federal Magistrate's treatment of this issue when his Honour observed at [34] and [36] of the reasons below; '… … there was evidence before the Tribunal which allowed it to arrive at these findings. This evidence was found in the applicant's own statements in his written visa application and his responses to the Tribunal's questions, which I have set out above, as to whether his mother and sister were likely already to have become the subjects of retribution by reason of his escape from North Korea.

In my opinion, it was open to the Tribunal to reach the conclusions which it expressed. The issue required the Tribunal to form a difficult predictive opinion, drawing upon its findings as to the applicant's history and taking into account its general background researches. In this situation, I am not persuaded that the Tribunal arrived at opinions which were not available to it on the material before it. … …'

42 A comparison of the state of mind to be imputed to the appellant if he remained in Australia with that which the Tribunal found he would have in South Korea is not, in my view, rendered irrelevant by the terms of Art 33(1) of the Refugees Convention as set out at [13] of these reasons. That Article merely precludes a Contracting State from refouling a refugee to the "frontiers" of a territory where his or her life or freedom would be threatened for a Convention reason. In the present case, that Article precludes Australia from returning the appellant to the frontiers of North Korea. On the Tribunal's findings his life or freedom would not be threatened for a Convention reason in South Korea. 43 In my view, in light of the way in which the appellant presented his case, the Tribunal was not required to disentangle the fear which the appellant claimed to have of further psychological injury to himself if he were returned to South Korea from the matter which, he said, gave rise to that fear. That was the possibility that his sister or some other family member might still be alive in North Korea and be subject to further torture or other harm upon the North Korean authorities discovering the appellant's presence in South Korea. It was open to the Tribunal to regard that possibility as so remote as to be incapable of engendering in the appellant a separate subjective fear in the terms in which he expressed it. In other words, the Tribunal's conclusion, that whatever harm could be visited on the appellant's family in North Korea had already occurred, explained its failure to be satisfied that he had a subjective fear of further psychological injury to himself stemming from a residual apprehension that even more harm might be inflicted on one or more members of his family. 44 Understood in this way, the Tribunal's conclusion was not that the risk of future harm to his family which the appellant hypothesised would be the same irrespective of whether the appellant were to remain in Australia or be returned to South Korea. Rather, in the light of its finding that the maximum possible harm to the appellant's family had already occurred, the Tribunal rejected his hypothesis. 45 For these reasons, I do not regard the matters taken into account by the Tribunal as irrelevant to the question of whether the appellant had a well-founded fear of being persecuted in South Korea for reasons of his political opinions. Once the Tribunal concluded that it was not satisfied that the appellant had such a fear, it followed that Australia did not have protection obligations to the appellant because it was not in issue that, for the reasons which he advanced but the Tribunal rejected, he had not taken all possible steps to avail himself of a right to enter and reside in South Korea.

Conclusion 46 It will be seen from the analysis which I have just undertaken that the appellant has not made out any of the, largely inter-related jurisdictional errors, which he contended, both at first instance and on appeal, had been committed by the Tribunal. It follows that the appeal must be dismissed with costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate: Dated: 8 September 2006. Counsel for the Appellant: Mr K L Andronos

Solicitor for the Respondent: Blake Dawson Waldron