FEDERAL COURT OF AUSTRALIA

NBCY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 922

MIGRATION - judicial review - protection visa - no adverse credibility findings - applicant had well-founded fear of persecution in North Korea - applicant had a right to enter and re-enter South Korea - applicant expressed serious concerns for safety of his immediate family in North Korea if returned to South Korea - Refugee Review Tribunal dismissed such concerns because family members were not applicants - submission to Refugee Review Tribunal that applicant would suffer psychological harm in South Korea arising from fears for his family not expressly articulated - failure to consider relevant consideration - failure to consider important "integer" of applicant's claim - error of law going to jurisdiction - persecution to the applicant arising from threat to family - "effective protection" principle - protection obligations - all possible steps - possible application of s 36(4) of the Migration Act 1958 (Cth) - application granted - matter remitted to Refugee Review Tribunal.

Migration Act 1958 (Cth) s 36

Al-Anezi v Minister for Immigration and Multicultural Affairs [1999] FCA 355 cited

HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 cited

SCAT v Minister for Immigration and Multicultural Affairs [2003] FCAFC 80 cited

El-Merhabi v Minister for Immigration and Multicultural Affairs [2000] 96 FCR 375 cited

Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 discussed

NAGV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 202 ALR 1 discussed

NAEN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 6 cited

Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 distinguished

Mandla v Lee [1983] 2 AC 548 cited

Australian Public Service Association v The Australian Trade Commission (1988) EOC 92-228 cited

Styles v The Secretary of the Department of Foreign Affairs and Trade & Anor (1988) EOC 92-239 cited

NBCY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 369 OF 2004

TAMBERLIN J

SYDNEY

16 JULY 2004

THE COURT ORDERS THAT:

1. The application for judicial review is granted.
2. The decision of the RRT is set aside.
3. The proceeding is remitted to the RRT for consideration in accordance with law.
4. The respondent is to pay the applicant’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for review of a decision of the Refugee Review Tribunal (“the RRT”), which was given on 19 February 2004, affirming a decision of a Ministerial delegate to refuse to grant a protection visa.

2                     The applicant raises important issues concerning the meaning and relevance of the principle of “effective protection”, and also as to the duty of the RRT to consider the case sought to be made by an applicant for protection as a refugee within the meaning of the well-known definition of “refugee” contained in the Refugee Convention as amended.

3                     The applicant is a national of the Democratic People’s Republic of North Korea (“North Korea”).  He left North Korea in 2000 and went to China, where he worked in a restaurant.  He was identified in China, and forcibly repatriated by Chinese authorities to North Korea.  He was imprisoned there for six months, during which time he was tortured.  He again escaped North Korea in 2002, and after travelling through China he came to Australia, where he lodged his application for a protection visa on 26 September 2003.  The Ministerial delegate refused his application on the basis that he could acquire “effective protection” in South Korea.

4                     On 21 January 2004, prior to the RRT hearing, the RRT sent the applicant particulars from country information (which is information from sources other than the applicant) that it said indicated that defectors from North Korea are regarded by South Korea as nationals of South Korea.  The Refugee Advisory and Casework Service (“RACS”) answered that letter on behalf of the applicant on 26 January 2004, and submitted that there was no effective protection in South Korea from North Korea. 

5                     The hearing before the RRT, which the applicant attended with the assistance of an interpreter, took place on 28 January 2004.  In the course of that hearing, the applicant said to the Tribunal:

“… so Member, if my identity is revealed this time in South Korea my family will surely get execution, [sic] so that’s my fear.  [page 17]

Member, I am repeating myself again but I cannot go back to [South] Korea because to save myself I cannot risk my family’s life in North Korea, I would rather die, Member, if I have to risk my family’s life.  I can’t take that risk.” [page 50]

6                     These references illustrate the importance that the applicant attached to the anticipated persecution of his family, were he to be sent by Australia to South Korea.

7                     On 9 February 2004, the RRT sought comments from the applicant on a recent report from the Department of Foreign Affairs and Trade (“DFAT”) which is said supported the contention that South Korea would afford effective protection to the applicant.

8                     RACS sent a written response on behalf of the applicant on 13 February 2004, in which it submitted that:

“The issue of whether [the applicant] has effective protection in a 3^rd country must focus on his individual and particular circumstances and not merely on general information concerning South Korea: see Al-Anezi v Minister for Immigration and Multicultural Affairs [1999] FCA 355.

As stated by our client the hearing before you, if he is sent to South Korea, the news of his arrival will be reported by the media in South Korea which consistently monitors and reports the arrival of North Koreans from abroad. This will be observed by the North Korean authorities and allows them to keep track of citizens returning to the peninsula.  As [the applicant] has now twice escaped North Korea, both times through China, there is a very real chance that the North Korean authorities will have reason to be suspicious of his activities and take an interest in him.  It will also increase the very real likelihood of his name being put on the list of defectors and traitors maintained by the North Korean authorities.

As stated at the hearing, our client fears being sent to South Korea because he believes that his presence will quickly come to the attention of the North Korean government and that his life will be in danger.  He also fears for the safety of his family as a consequence.  He fears that the North Korean authorities will use the threat of harming his family as a means of forcing him to return, where he will face inevitable imprisonment, punishment and possible torture and death ….”

9                     The applicant, when protesting that he could not return to South Korea because this would imperil his family in North Korea, is in substance claiming that:

• First, he cannot in any realistic sense exercise a right to enter South Korea because by his entry he would expose his family to a real danger of harm.  Therefore, it cannot be said, without detracting from his attachment to his family that he can in any real sense exercise his “right” to enter and reside in South Korea.
• Second, it is not a “possible step” for him to avail himself of his right to return to South Korea because such relocation would inevitably lead to harm to his family.  In these circumstances, the step of returning or taking measures to return is not “possible”.
• Third, he will probably suffer serious harm as a result of his attachment to his family and the impact of harm to his family as a consequence of any relocation to South Korea. 
• Fourth, accordingly, if returned to South Korea he would be subject to persecution in that country by North Korean authorities by reason of action they would take against his family.

10                  Each of these formulations raise important questions which required consideration by the RRT and which cannot be said to be foreclosed by authority.

the rrt decision

11                  The RRT decision was given on 19 February 2004.  It accepted that the applicant was a national of North Korea, and made no adverse findings as to credibility against him.  In the course of its reasons, it also made the following findings and observations:

• the applicant’s explanations of his behaviour were plausible and not unreasonable;
• the applicant’s evidence was consistent with country information before the RRT;
• the applicant’s evidence as to his detention and treatment in gaol in North Korea was accepted without reservation, including the fact that his legs were cut; he was tortured with cigarettes; and he was submerged in water for periods of up to one week at a time;
• the applicant has a right to enter and remain in South Korea;
• the applicant made no claim that he would be sent to North Korea by South Korean authorities;
• it is likely that there are agents of North Korea operating in South Korea;
• South Korea would not return the applicant to North Korea, and he did not have a well-founded fear of this occurring; 
• the applicant had expressed serious concerns for the safety of his parents, brother and sister in North Korea;
• the applicant’s relatives are presently in a vulnerable position because of the combined factors of their long standing political profile and the fact that the government of North Korea limits food and other resources to such people, and the possibility that they may suffer as a result of the applicant settling in South Korea;
• relatives of defectors from North Korea face retaliatory treatment from the North Korean regime, which may be severe in some cases;
• the applicant’s father lost his legs in a work accident, his mother and two siblings were doing casual labouring work quarrying rock, and many people die of starvation during the North Korean winter; 
• country information before the RRT indicated that 10% of the North Korean population, or 2 million people, may have died from hunger related problems since 1995;
• uncontradicted country information indicated that the North Korean government applies the principle of guilt by association, punishing people for offences committed by family members, and that political prisoners are sent to “re-education” camps, even for trivial offences.

12                  Having then made these findings, and recording that the substance of the applicant’s case was that his family would be harmed if he was returned to South Korea, which is why he said that he could not return there, the RRT summarily dismissed such considerations in stating that:

“[the applicant’s] family members are not applicants before this Tribunal, and their circumstances do not fall within the Tribunal’s jurisdiction.”

13                  As a consequence of this assertion, it is evident that the RRT member, although being aware of and accepting the matters raised by the applicant, dismissed them from consideration and did not weigh them in the balance. 

14                  The RRT refers in its reasons to s 36 of the Migration Act 1958 (Cth) (“the Act”), which relevantly provides:

“Protection Obligations

(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.

(5)               Also, if the non-citizen has a well-founded fear that:

(a)               a country will return the non-citizen to another country; and

(b)               the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;

            subsection (3) does not apply in relation to the first-mentioned country.”  (Emphasis added)

15                  After referring to a report that DFAT had issued in response to a request by the RRT, and various other country information on South Korea, the RRT found that the applicant would be able to reside in, enter and re-enter, South Korea.  It also found that he had a present right to enter and remain in South Korea.  The RRT was satisfied that the applicant did not have a well-founded fear of persecution for a Convention based reason in South Korea, and that South Korea would not return the applicant to North Korea.  The RRT referred to the applicant’s expressed concern for the safety of his family in North Korea, noting that:

“[The applicant] expressed serious concern for the safety of his parents, brother and sister in North Korea if the North Korean authorities became aware that he had sought the protection of South Korea.  I have noted and accepted independent evidence that relatives of defectors do face retaliatory treatment, and accept that this may be severe in some cases.  I also accept that his family are already in a vulnerable position because of the combined factors of their longstanding political profile and the fact that the government limits food and other resources to such people and it appears possible that, if [the applicant] settles in South Korea, they may suffer as a result.  However his family members are not applicants before this Tribunal, and their circumstances do not fall within the Tribunal’s jurisdiction.”  (Emphasis added)

16                  The RRT found that the applicant had a right to enter South Korea, that he had “effective protection” there, and that he had not taken all possible steps to avail himself of that right.  The RRT therefore decided that the applicant was not a person to whom Australia owed protection obligations under s 36(2) of the Act.  The last sentence in the above paragraph is of particular importance in the present case.

The applicant’s case

17                  The applicant’s first submission on his application for review is that the RRT failed to consider whether the harm that the applicant’s family would suffer by reason of the applicant’s residence in South Korea coming to the attention of North Korean authorities could result in serious psychological harm to the applicant, and therefore the RRT failed to consider whether the applicant had a well-founded fear of persecution on that ground in South Korea.

18                  The applicant’s second submission is that the RRT erred in law because it failed to consider whether the reporting activities or the threat of reporting activities by North Korean agents amounted to persecution of the applicant.

19                  The applicant’s third submission is that the RRT made an error of law in finding that Australia did not have protection obligations to the applicant because the applicant had “effective protection” in South Korea.

20                  The applicant’s fourth submission is that the RRT made a jurisdictional error by finding, pursuant to s 36(3) of the Act, that the applicant had not taken all “possible steps” to avail himself of the right to enter and reside in South Korea.

21                  It was more generally submitted on behalf of the applicant that it is not reasonable to expect the applicant to avail himself of the protection of South Korea in view of his statement that he could not return to South Korea, because his family would be endangered thereby.

reasoning on application for review

No claim of psychological harm to the applicant arising from fears for his family

22                  There was some discussion before me as to whether it was an element of the applicant’s claim that he would suffer persecution in South Korea by reason of the severe psychological harm to him that would follow from his reasonably held fear that, as a consequence of his return, the North Korean authorities would retaliate against his family.

23                  In my view, the submissions made to the RRT on the applicant’s behalf after the hearing, when read together with the earlier quoted statements in the transcript of the RRT hearing, make it clear that this matter was raised with the RRT with sufficient clarity for it to be an important part of the applicant’s claim.  Indeed, the RRT in the penultimate paragraph of the decision specifically refers to this matter when it refers to the applicant’s serious concern for the safety of his parents; the present vulnerability of his family, and the fact that they may suffer as a result of his settlement in South Korea.  The RRT’s reasons refer to the long standing political profile of the family, and to the fact the North Korean government limits food and other resources to such people.  These were seen by the RRT to be possible consequences of the applicant’s going to South Korea.  In my view, it is arguable that these statements, in substance, amount to a finding that there is a real basis for the applicant’s fear that, if he is sent to South Korea, there is a real chance that his family will suffer as a result.  Notwithstanding this, the RRT cursorily dismisses this consideration in the last sentence of the penultimate paragraph, by this statement:

“However, his family members are not applicants before this Tribunal, and their circumstances do not fall within the Tribunal’s jurisdiction.”  (Emphasis added)

24                  In my view, on a fair and reasonable reading of that sentence, the member has elected to give no weight to the likely danger to the applicant’s family.  It is evident that the RRT member did not take into account the impact on the applicant of the suffering of his family on the basis that the family members were not applicants “before the Tribunal” and that considerations relating to them are not relevant to the decision of the RRT on the application.  I consider this to be a serious error of law on an important question which goes to the RRT’s jurisdiction in that the RRT has elected to ignore a relevant matter.  It is also a refusal to address an essential part or “integer” of the applicant’s claim as presented to the RRT by and on behalf of the applicant: see HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [13]-[14], [41]-[42].  See also SCAT v Minister for Immigration and Multicultural Affairs [2003] FCAFC 80 at [4], [20]-[24] and [29], where the Full Court held that a failure to deal with a claim or integer of a claim made by an applicant will amount to jurisdictional error. 

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.  In El-Merhabi v Minister for Immigration and Multicultural Affairs [2000] 96 FCR 375 at [16]-[17], for the reasons there stated by Burchett J, severe 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.  Threats and harm to family members, as a matter of common sense, may cause considerable injury and harm to close members of that family.  In the present case the evidence, which is not rejected by the RRT, shows that the applicant knew people in the area where his family were living who were dying of starvation.  As a consequence, it is apparent that the deprivation of food to his family by North Korean authorities which the RRT member had in mind could give rise to a real and present danger of starvation and death so that the possible harm was severe and real.

26                  In the present case, it is accepted by the RRT that the act of settling the applicant in South Korea, on the evidence of the North Korean intelligence, the family profile and restrictions on food supply, will give rise to a real chance of harm to the applicant’s family, and thereby to the applicant.  For these reasons, I consider that the RRT fell into jurisdictional error in failing to address or take this matter into account when it refused to consider the impact on the applicant’s family members on the basis they were not applicants.  It is not to the point that those family members are presently in North Korea and are not parties to the present application.  The real claims of serious impact on the applicant’s family of the return by the applicant to South Korea is highly relevant to the existence of harm and persecution to the applicant by reason of his family’s plight.

The reporting activities of North Korean agents

27                  The applicant’s second submission is that the RRT failed to consider whether the reality or threat of the reporting activities of North Korean agents in South Korea amounted to “persecution” of the applicant, having regard to the possibility that agents from North Korea would abduct the applicant to North Korea.

28                  In my view, this matter was considered by the RRT.  There was no failure to take it into account.  It is addressed in the RRT decision that:

“It is very likely that there are agents of North Korea active in South Korea, but I do not accept that they are abducting North Korean expatriots from there and returning them to North Korea – it is apparent that the South Korean authorities are vigilant on this point and would arrest and return to North Korea anyone regarded as a spy….  I am satisfied that the South Korean authorities would not, for a Convention reason, deny protection from such harm to [the applicant].  I find that he does not have a well-founded fear of Convention-related persecution in South Korea.”

The doctrine of “effective protection”

29                  This third submission, in substance, is based on the premise that the adoption of “effective protection” as enunciated in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 at 562C-E and 568B-C, and subsequently developed by the Full Court, was wrongly decided.  However, that is a decision of a Full Court by which I am bound.  It has been followed in a substantial number of subsequent Full Court decisions, although one Full Court, NAGV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 202 ALR 1, expressed disagreement with the principle and considered that the case was wrongly decided.  Nevertheless, it applied the principles, because it considered it was bound by the line of authority in Thiyagarajah and subsequent cases.  More recent Full Court decisions have declined to follow and apply NAGV: see NAEN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 6; and also NAHF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 7.

Effective protection by South Korea

30                  The respondent submits that the applicant cannot succeed because it has been held that South Korea would provide “effective protection” to the applicant if he exercised his right to re-enter.  The respondent referred to the recent High Court decision in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487, where Gleeson CJ and Hayne and Heydon JJ considered that notwithstanding that an applicant may, as a matter of practical reality, suffer harm if returned to another state, nevertheless Australia would not be in breach of its international obligations if it returned the applicant to that state provided that it did not fail to provide a reasonably effective police and justice system.  At [26] their Honours expressed this position in these terms:

“No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence.  Day by day, Australian courts deal with criminal cases involving violent attacks on person or property.  Some of them may occur for reasons of racial or religious intolerance.  The religious activities in which the first respondent engaged between May and December 1998 evidently aroused the anger of some other people.  Their response was unlawful.  The Ukrainian state was obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system.  None of the country information before the tribunal justified a conclusion that there was a failure on the part of Ukraine to conform to its obligations in that respect.”  (Emphasis added)

31                  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 is important to address the above impact of any threat to members of the applicant’s family.

Section 36(3) – “all possible steps”

32                  The next submission made by the applicant is that the RRT erred in deciding that the applicant had not taken “all possible steps”, in accordance with s 36(3) of the Act, to avail himself of the right to enter and reside in South Korea.

33                  The applicant submits that on the evidence it is clear that the “practical reality” is that it is “not possible” for the applicant to relocate in South Korea because of the impact on him of his fears for his family if he does so.  It is said that in a reasonable humane or realistic and practical sense he simply cannot return to South Korea.  In this respect the applicant points to the statement made to the RRT on the hearing that:

“… I cannot go back to Korea because to save myself I cannot risk my family’s life in North Korea, I would rather die, Member, if I have to risk my family’s life.  I can’t take that risk.”

34                  That assertion is reinforced by the post-hearing submission that was made on behalf of the applicant, to the effect that:

“He fears that the North Korean authorities will use the threat of harming his family as a means of forcing him to return, where he will face inevitable imprisonment, punishment and possible torture and death.”

35                  In my view, this submission turns upon a consideration of the words “right to re-enter” and “all possible steps” in s 36(3) of the Act.  On one reading of that sub-section, the use of the expression “possible steps” rather than something like “reasonable steps”, “practicable steps” or “reasonably available measures” would seem to indicate that the section requires an applicant to take every step open to re-enter regardless of the consequences.

36                  Counsel for the respondent submits that if the word “possible” is read down to mean “reasonably available”, or something similar, then the specific and narrowly confined exceptions to s 36(3) that are set out in ss 36(4) and (5) would have very little, if any, work to do.  It is said that in the circumstances referred to in these sub-sections would seem to be covered by the expression “reasonably available steps”, so that where an applicant reasonably fears persecution in a country it would not be a “reasonable step” to expect the person to go back to that country.  Accordingly, it is said that the applicant’s interpretation renders ss 36(4) and (5) otiose.  The same could be said if a country to which an applicant is sent is one where the applicant would be at risk of refoulement.

37                  The expression “all possible steps” in s 36(3) has been the subject of judicial consideration by the Full Court of this Court.  In NAGV, Emmett J considered that s 36(3) would be satisfied:

“… where the non-citizens has failed to take all reasonable steps to avail himself or herself of a right to enter and reside in any other country apart from Australia, subject to the qualification in s 36(4) that the non-citizen will not have a well-founded fear of persecution in that other country.” (Emphasis added). 

38                  The applicant submits, and I consider that there is an arguable case, that the expression “all possible steps” was not intended to be applied in an absolute sense, because this would deprive an applicant from the very protection that Parliament intended to provide: cf. the approach adopted by the House of Lords in Mandla v Lee [1983] 2 AC 548, which was applied by Einfeld J in the Australian Public Service Association v The Australian Trade Commission (1988) EOC 92-228 at 77,162 and Wilcox J in Styles v The Secretary of the Department of Foreign Affairs and Trade & Anor (1988) EOC 92-239 at 77,239.  The point for present purposes is that as a consequence of the RRT refusing to consider the circumstances of the applicant’s family members this important question was not addressed.

Section 36(4)

39                  The RRT, as a consequence of refusing to consider the position of the applicant’s family, also failed to address the provisions of s 36(4) of the Act, which it could be argued, operates in the present case because the applicant is a person with a reasonable fear of being persecuted (by reason of the danger reasonably anticipated to his family if he is sent to South Korea) in a country (South Korea), by agents of North Korea taking action against his family in North Korea for his imputed political opinion.  The action anticipated may be taken in North Korea.  The “harm” is inflicted on the applicant in South Korea and results from sending him there.  Therefore, it could be argued for the applicant that he is not within s 36(3) because he falls within one of the specific exceptions to s 36(3) set out in s 36(4).  The RRT did not consider this question once again because it declined to have any regard to the impact on the applicant of the real possibility of danger to his family as a consequence of his relocation to South Korea.

40                  In the circumstances of this case, where I have found that the RRT fell into jurisdictional error by failing to consider the impact upon the applicant of threats to his immediate family, I do not consider it necessary to make any finding as to the meaning of “all possible steps” for the purposes of s 36(3) of the Act, beyond indicating that it seems to me that it could mean something closer to “all reasonably practical measures” rather than “possible” in an absolute literal sense.  Nor do I need to make a determination on the question whether the applicant is within s 36(4).  That can be considered by the RRT on remittal.

conclusion

41                  In considering the question of costs I have had regard to the fact that there was an Amended Notice of Appeal in this matter but in all the circumstances, having regard to the substance of these reasons, I see no reason why the normal rule should not apply, namely that costs should follow the outcome.

42                  For these reasons this application is granted, the decision of the RRT is set aside and the matter is remitted to the RRT for decision in accordance with law.  The respondent is to pay the applicant’s costs.

Associate:

Dated:              16 July 2004