FEDERAL COURT OF AUSTRALIA

SZQYM v Minister for Immigration and Citizenship [2014] FCA 427

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Magistrate on 7 December 2012 dismissing the appellant’s application be set aside and in lieu thereof:

(a)    there be an order in the nature of certiorari to quash the decision of the delegate of the respondent advised to the appellant by letter of 7 November 2011 that her application for a protection visa lodged on 30 May 2011 is invalid;

(b)    there be an order in the nature of mandamus requiring the respondent to consider her protection visa application lodged on 30 May 2011 according to law; and

(c)    the respondent pay the costs of the appellant in the Federal Magistrates Court as agreed or assessed.

3.    The respondent pay the appellant’s costs of the appeal as agreed or as assessed.

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Magistrate on 7 December 2012 dismissing the appellant’s application be set aside and in lieu thereof:

(a)    there be an order in the nature of certiorari to quash the decision of the delegate of the respondent advised to the appellant by letter of 7 November 2011 that his application for a protection visa lodged on 20 April 2011 is invalid;

(b)    there be an order in the nature of mandamus requiring the respondent to consider his protection visa application lodged on 20 April 2011 according to law; and

(c)    the respondent pay the costs of the appellant in the Federal Magistrates Court as agreed or assessed.

3.    The respondent pay the appellant’s costs of the appeal as agreed or as assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    These appeals were heard together. By notices of appeal filed on 4 January 2013, the appellants appeal from a judgment of Federal Magistrate Smith delivered on 7 December 2012: SZQYM v Minister for Immigration; SZQYN v Minister for Immigration [2012] FMCA 1116 (SZQYM/SZQYN).

2    The Federal Circuit Court of Australia Amendment Act 2012 (Cth) came into effect at midnight on 11 April 2013. The Federal Magistrates Court continues its existence as the Federal Circuit Court of Australia and a Federal Magistrate is now known as a judge of that Court. In preparing these reasons, I have retained the terminology of Federal Magistrate and Federal Magistrates Court for ease of reference.

3    The appellants claimed to be citizens of North Korea. Their separate applications for Protection (Class XA) visas (protection visas) were marked as received on 20 April 2011 (Mr SZQYN) and 30 May 2011 (Ms SZQYM). Neither of the appellants had supporting documentation to substantiate the claims made in their visa applications. Ms SZQYM claimed that she had been born in North Korea on a specified date in 1978. The responses to questions in the application form signed by Ms SZQYM were: (1) her father’s place and date of birth was China at a specified date in 1938; (2) he lived in North Korea; and (3) he was a citizen or national of North Korea “by birth” on the date in 1938. The responses on the form indicated that her mother was a North Korean citizen who had been born in North Korea at a specified date in 1940. In his application form, Mr SZQYN claimed that he was born in North Korea on a specified date in 1968. He gave specified dates in 1935 and 1939 as his father’s and mother’s respective dates of birth and wrote “North Korea” as the place and country of birth for each of them. He did not state the citizenship or nationality of either of his parents and said that they were both “deceased”.

4    By separate letters dated 7 November 2011 in the same format (Delegate’s Letters), a delegate of the respondent (Minister) advised that as the appellants were nationals of the Democratic People’s Republic of Korea (North Korea), by virtue of various laws and case law of the Republic of Korea (South Korea), the appellants were also nationals of South Korea and therefore the protection visa applications were invalid because of the operation of s 91N and s 91P of the Migration Act 1958 (Cth) (Migration Act). Those provisions of Subdivision AK of the Migration Act prevent a person who is a national of more than one country from making a valid application for a protection visa while they are in the migration zone. The letters advised that the protection visa applications would be taken to be an application to the Minister pursuant to s 91Q to exercise his public interest power that s 91P not apply to the appellants. No determination appears to have been made by the Minister under s 91Q.

Subdivision ak of the ACT

5    Section 91N of the Migration Act relevantly provides as follows:

Non-citizens to whom this Subdivision applies

(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.

…

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.

(7)    Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act

6    Section 91P (1) provides:

Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas

(1)    Despite any other provision of this Act but subject to section 91Q, if:

(a)    this Subdivision applies to a non-citizen at a particular time; and

     (b)    at that time, the non-citizen applies, or purports to apply, for a visa; and

 (c)    the non-citizen is in the migration zone and has not been immigration cleared at that time;

neither that application, nor any other application the non-citizen makes for a visa while he or she remains in the migration zone, is a valid application.

7    Section 91P(2) is to the effect of s 91P(1) in relation to a non-citizen who has been immigration cleared.

8    In SZOAU v Minister for Immigration and Citizenship (2012) 199 FCR 448 (SZOAU), delivered on 21 March 2012, the Full Court found that the legal meaning of the word “national” in s 91N(1) is its literal meaning and there is no room for it to be construed as meaning “effective national”. This decision is to the same effect as a decision of the primary judge in SZOUY & Ors v Minister for Immigration & Anor [2011] FMCA 347 (SZOUY) delivered on 3 June 2011. There was no dispute before the court in either of SZOAU or SZOUY about whether the appellants were South Korean nationals according to South Korean law in addition to being North Korean nationals.

9    Buchanan J, at [1]-[7] of SZOAU summarised the issue and its resolution in that case:

[1]    The difficulty for the appellant may be shortly stated. He was born in North Korea of North Korean parents. He is a national of North Korea. Under the law of South Korea, he is also a national of South Korea. He therefore, at least formally, has two nationalities. Under the Migration Act 1958 (Cth) (“the Act”), a holder of dual or multiple nationality may normally not make an application for a protection visa, claiming to be a refugee. Regardless of an applicant’s claims to fear persecution, even in each country of which he or she is a national, such an application would not be valid without a special dispensation from the Minister, which the appellant in the present case does not have.

[2]    Under the Act, only a valid application for a visa may be considered (s 47(3)). The combined effect of ss 91N(1) and 91P(2) of the Act is that the appellant’s application for a protection visa was not a valid application unless written notice had been given to the appellant by the Minister under s 91Q of the Act, which would relieve against the invalidity of his application. No such written notice had been given.

[3]    Despite any assistance which might be available from s 91M in any area of uncertainty in the construction of the relevant subdivision of the Act, there is no ambiguity or lack of certainty in the relevant statutory provisions which apply here, with the result that they must be construed according to their plain meaning.

[4]    That produces a strange result. Section 36 of the Act deals with claims for protection visas. It clearly contemplates that a holder of dual nationality (or someone with rights of entry and residence in more than one country) may be a genuine refugee and may have a well-founded fear of persecution in each such country. Dual, or multiple, nationality is not a bar to the assessment of such an application or to a conclusion that Australia owes such a person an obligation to protect them. The effect of the operation of ss 91N(1) and 91P(1), to which I have referred, is that a genuine claim for protection from a true refugee who holds dual nationality may not even be considered on its merits unless the Minister, in a non-compellable and substantially unreviewable exercise of discretion under s 91Q of the Act, makes a formal determination permitting consideration of the application on the ground that it is in the public interest to do so. That determination must then be laid, with supporting reasons, before both Houses of Parliament. Only in that circumstance may a holder of dual nationality obtain a right to consideration of a claim for refugee status, regardless of the peril of his or her situation.

[5]     The statutory language, which erects this barrier and prevents consideration of a genuine claim, appears to me to be intractable. Parliament must be taken to have intended such an apparently inequitable distribution of rights under the Act.

[6]    In the present case, the application for a visa was not valid. A protection visa could not be granted, or even be considered, regardless of the circumstances of the appellant. The decision of the Refugee Review Tribunal, based on its findings of fact, was therefore correct. No jurisdictional error was committed. The findings of fact were not reviewable in the court below, and are not reviewable in this Court.

[7]    The policy of preventing consideration of the claims of true refugees, who however formally hold dual nationality, unless specific permission is given in individual cases, is a matter beyond the power of this Court to address.

10     An application for special leave to appeal to the High Court was refused on 17 August 2012.

The application before the federal magistrate

11    The appellants filed their applications for judicial review by the Federal Magistrates Court on 14 December 2011. In their amended applications filed on 29 June 2012, the appellants relied upon identical grounds (set out below as written):

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 x91N 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 chance 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

12    The primary judge summarised the case law on the application of Subdivision AK of the Migration Act and, based on the Full Court’s decision in SZOAU, he concluded that the first two grounds were untenable.

13    The primary judge commented that the other grounds were poorly focused. He concluded that the only controversy which remained was whether he was satisfied that the appellants were nationals of South Korea on the evidence before him. It was “common ground” that if the appellants satisfied the primary judge that they were not South Korean nationals, the delegate’s determinations that the appellants’ visa applications were invalid would be vitiated by jurisdictional error of fact, the decision should be quashed and mandamus should issue to require the Minister to address the merits of the protection visa applications.

14    It was also 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: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 (City of Enfield v Development Assessment Commission) at [28], [33]-[38], [60] and Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [57]-[58], [107]-[109]. For this purpose, both parties accepted that the primary judge must make fresh findings of fact as to the relevant effect of South Korea’s nationality laws based on the evidence tendered to him and unaffected by Refugee Review Tribunal findings upheld by him in SZOAU v Minister for Immigration and Citizenship [2011] FMCA 820 and SZOUY: see SZQYM/SZQYN at [10]-[13] and [24]-[25].

15    The primary judge considered that, if he was unable to determine the true nationalities of the appellants, he might be in a position where he could not determine the jurisdictional fact for himself in accordance with the necessary standard of proof. If this was the case, he considered that the appellants must fail because they ultimately bear the onus of proof that the delegate’s action was without statutory authority (relying on Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (SZGUR) at [67] and Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 (Industrial Equity v DCT) at 671-2). He pointed out that the court may have a discretion in such a situation not to disturb a jurisdictional finding of fact by an administrative agency relying on its expertise: City of Enfield v Development Assessment Commission at [50] per Gleeson CJ and Gummow, Kirby and Hayne JJ and [60] per Gaudron J: see SZQYM/SZQYN at [14]-[15].

16    Further, because of the binding nature of a declaration of nationality as between the Minister and the appellants and the gravity of the consequences which flow from that, the primary judge considered that he should apply the standard in Briginshaw v Briginshaw (1938) 60 CLR 336 (Bringinshaw) at 361-362 and have regard to the considerations in s 140(2) of the Evidence Act 1995 (Cth) (Evidence Act). He concluded he should therefore exercise a “considerable degree of caution” in his assessment of the evidence tendered to the Department and the Court: see SZQYM/SZQYN at [16]-[18].

17    The primary judge went on to say that it was curious that neither the Minister nor the appellants had tendered any expert evidence of the effect of the relevant South Korean nationality laws. Rather, the Minister tendered, without objection, English translations of the South Korean Constitution and nationality laws and some relevant judgments of the South Korean Constitutional Court, Supreme Court and High Court. Without objection, the primary judge was invited to make his own determination as to the effect of the relevant South Korean laws: SZQYM/SZQYN at [26] and he considered them at [28]-[34]. The primary judge found that a mother’s nationality would only be relevant if the child was born after 1987 (SZQYM/SZQYN at [31]).

18    Having noted the seriousness of a determination by a Court (as opposed to an administrative decision maker) as to a person’s nationality (SZQYM/SZQYN at [16]-[18]), he said at [27]:

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.

Conclusion of the primary judge

19    The primary judge concluded in respect of each of Ms SZQYM and Mr SZQYN that the visa application provided a legally sufficient basis for the delegate to make the decision that the appellants had dual nationality. Mr SZQYN had made an unequivocal statement that his father was born in North Korea and Ms SZYQYM’s form contained inconsistency but her responses were “open to the interpretation” that she had asserted that her father had acquired North Korean citizenship by birth in 1938 within territory over which both North and South Korea subsequently claimed sovereignty: [62]. The primary judge was not persuaded that the decisions could be quashed on the ground that there was no evidence in the material before the delegate upon which the finding of dual nationality could be made. Nor did he consider the decisions were affected by any denial of procedural fairness or other procedural irregularity: the Department did not have any obligation to seek further information or to raise the issue of dual nationality with the appellants before making its decision: see [63]-[64].

20     The appellants had given evidence at the hearing and been cross examined. He considered the evidence of both appellants unreliable and not sufficient for the Court to arrive at satisfaction one way or the other as to the critical jurisdictional facts bearing on a determination under s 91N and s 91P: he would therefore not make a declaration either that the appellants were not citizens of South Korea or that the visa applications were invalid, as he had he been asked by the Minister: see [69]-[71]. There was nothing final and conclusive about the Department’s decision and it was open to the appellants to ask for redetermination and to present additional evidence and submissions: [65].

21    The primary judge dismissed both applications.

The appeal proceedings

22    Separate notices of appeal were filed for each of the appellants and the appeals were heard together.

Grounds of appeal and notices of contention

23    Ms SZQYM asserted 14 grounds of appeal while Mr SZQYM asserted 10. Ten of the grounds were common (grounds as written).

1.    In the case of SZQYM the Federal Magistrate erred when he held that evidence of the birthplace of her father was new evidence which had not previously been before the Minister and his officers [see judgment and paragraph 2 of the judgment].

2.    In the case of SZQYM the Federal Magistrate erred when he held that positive information sworn ab initio that the birthplace of the father of SZQYM was China, was inconclusive [see judgment and paragraph 17 of the judgment].

3.    The Federal Magistrate erred when he found absence of communication from Minister’s officers (by implication ‘on this point’) subsequent to the positive sworn evidence of the birthplace of her father, was to be held to the disadvantage of SZQYM [see in particular paragraph 42]

4.    The Federal Magistrate erred by misstating that the application form filed by SZQYM ab initio with the Minister’s officers contained some inconsistency when it had clearly stated that her father had been born in China, and that this positive evidence was not an impediment to a finding against SZQYM [paragraph 62 and 63].

5.    The Federal Magistrate erred by holding that the principle in Briginshaw required proof of a negative on the part of the Appellants [see judgment and paragraph 16 of the judgment].    

6.    The Federal Magistrate erred when he found that Section 91N placed a burden of proof on the Appellant to prove a negative, and not on the Minister to consider on the facts available whether they are nationals of 2 or more countries, in this case, North and South Korea [see judgment and paragraph 14 of the judgment].

7.    The Federal Magistrate erred when he held that the absence of proof of the place of the birth of the father of each Applicant was to be held to the disadvantage of the Appellants [see judgment and paragraph 16 of the judgment].

8.    The Federal Magistrate erred when he held that the “difficulties in tracing the present applicants’ fathers to any location at birth” supported the contention that their circumstances were covered by Sections 91M, 91N and 91P [judgment but in particular paragraph 34].

9.    The Federal Magistrate erred when he held that the matter of the birthplace of each Appellant’s father “have not been assessed on their merits by any decision maker” but that this absence of consideration of the facts was to be held to the disadvantage of the Appellants [see paragraph 51]

10.    The Federal Magistrate erred in finding without evidence or submissions that the decision of the Minister’s officers was not affected by “any denial of procedural fairness or other procedural irregularity”, when there had been no “procedure” [paragraph 64].

11.    The Federal Magistrate erred when “he made no finding concerning the location of the birth of the fathers of either of these applicants” but held that to their disadvantage [paragraph 69].

12.    The Federal Magistrate erred when he held the absence of documents to the disadvantage of the Appellants.

13.    The Federal Magistrate erred when he disregarded the evidence of motivation for evidence subsequently corrected.

14.    By reason of the errors identified above, the Federal Magistrate erred by failing to find that the reliance on Sections 91N and 91M was attended by fact or substance.

24    The Minister filed identical notices of contention on 24 January 2013 in relation to the appeals by Ms SZQYM and Mr SZQYN. The notices contended that the judgment of the primary judge should be affirmed on grounds other than those relied on by the primary judge:

1.    The decision of the Federal Magistrates Court should be affirmed on the basis that the Court should be satisfied that, as a matter of fact, the Appellant was a national of South Korea.

The hearing

25    The appellants were represented by the same solicitor before this Court as appeared before the primary judge and he provided written submissions on the appellants’ behalf. The Minister was represented by counsel and provided written submissions. Neither party provided to the Court a transcript of the proceedings before the primary judge. Although the appellants’ solicitor (who is also their migration agent) said that the appellants had attended an interview with the delegate, no evidence of what transpired at that interview was provided to the Court.

Notices to admit

26    On the day before the hearing, the appellants foreshadowed an application to the Court to issue a notice to admit the following facts:

With respect to each of these applicants, having regard to the years of their births, the relevant consideration pursuant to the Laws of South Korea is the birthplace of each of their fathers.

The Minister foreshadowed a notice of dispute of the truth of that fact. At the hearing, the representatives of the parties indicated that they would not be filing the notices.

Further expert evidence rejected

27    Three business days before the hearing of the appeal, the Minister filed an application to the Court to abridge time to file an application to receive further evidence on the appeal. This is the only additional evidence which any party sought to adduce on the appeal.

28    The Minister noted that the primary judge had indicated that he would have been assisted by evidence of this kind. The Minister submitted that the evidence was in support of the Minister’s notice of contention in the event that the Court accepted the appellants’ arguments that the primary judge applied the wrong onus or standard of proof with the result that the Court had to make findings as to the jurisdictional fact of the nationality of the appellants. The delay in filing the application was caused by the fact that the expert evidence had not been received earlier and the difficulty in identifying an appropriately qualified expert.

29    The evidence was two reports by an expert in South Korean law. The reports provided an expert opinion regarding the application of South Korean nationality laws to citizens of North Korea. The Minister relied on the decision of the Full Court in Reece v Webber (2011) 192 FCR 254 at [15] per Jacobson, Flick and Reeves JJ in relation to the considerations relevant to a Court in exercising its discretion to permit further evidence to be adduced on appeal under s 27 of the Federal Court of Australia Act 1976 (Cth):

The result, it is considered, is that the discretion conferred by s 27 to adduce further evidence is thus unconfined by any express limitations. But the discretion is to be exercised in a statutory context where the appeal being entertained is an appeal by way of rehearing for the purpose of determining the rights of the parties in accordance with law. Although not constrained by common law principles, the considerations to which the common law had regard remain considerations relevant to the exercise of the discretion conferred by s 27. The exercise of the discretion conferred by s 27 may be informed by reference to these principles but is not to be constrained by them.

30     In saying this, the Court followed the reasoning of the Full Court in Sobey v Nicol (2007) 245 ALR 389 at [69]-[72] per Branson, Lindgren and Besanko JJ. This reasoning stresses that in exercising the discretion to admit further evidence, the Court must act consistently with proper judicial process and in the interests of justice, but without obliterating the distinction between original and appellate jurisdiction.

31    Although both the primary judge and this Court would have been assisted by up-to-date expert opinion concerning South Korean nationality laws, leave was refused.

32    The Court accepted the appellants’ submission that they had had no time to consider this evidence or to obtain other expert opinion to respond to it: that would involve both cost and delay. Further, the expert who provided the reports to the Minister would be required for cross-examination but he would only be available by telephone and would require the assistance of an interpreter.

33    More importantly, it appeared that the utility of the reports was unclear. In the Court below, both the Minister and the appellants accepted that if the appellants’ fathers were born in North Korea then the appellants would have South Korean nationality under relevant South Korean laws; they would therefore have dual nationality for the purposes of s 91N. The expert evidence which the Minister sought to adduce did not challenge that position although it may have supported the primary judge’s reservations that the issue was not as simple as establishing that the father was born on the Korean peninsula.

34    As the evidence given by the appellants in relation to the place of birth of their fathers is contentious, the circumstances in which South Korean nationality might be obtained through the mother’s line was potentially significant. Both appellants had said that their mothers were born in North Korea. While the reports which the Minister sought to adduce in evidence acknowledged that South Korean nationality could be obtained through the mother, they did not address the finding of the primary judge at [31]-[32] that South Korean nationality could only be obtained by children with a foreign father if they were born after 1987 of a woman who had herself been born on the Korean peninsula due to the transitional arrangements under which nationality through the maternal line had been introduced into South Korean law in 1997.

35    As the reports disclosed possible departure from the agreed position before the primary judge and the materials on the basis of which the primary judge made his findings were supplied by the Minister, the point was well made by the appellants’ representative that this blurred the distinction between the issues appropriate to be considered at first instance and on an appeal. I note that none of the parties provided to the Court the documents considered by the primary judge in making his assessment of South Korean nationality law and accordingly the appeal was conducted on the basis of the primary judge’s findings in relation to that law.

Delegate’s Letters of 7 November 2011

36    The Delegate’s Letters were in the same form save for the addressee and the reference to the date on which the application for a protection visa was lodged with the Department. The letters relevantly provided:

I wish to advise you that the application for this visa was not a valid application. The requirements for making a valid visa application are set out in the Migration Act 1958 (‘the Act’) and the Migration Regulations 1994 (‘the Regulations’).

The following information indicates that you are a national of The Democratic People’s Republic of Korea (North Korea) and The Republic of Korea (South Korea):

•    Although you have not provided any documentary evidence, you have declared that you were born in North Korea, remain a national of that country, and have never held any other citizenship.

•    Various provisions of South Korean law provide that North Korean citizens who were born in North Korea and have not acquired citizenship elsewhere are regarded as South Korean nationals. These laws include, but are not limited to:

-    the Constitution of the Republic of Korea (the Constitution) CISNET Ref CIS 21616

-    Law No 16 Nationality Act 1948 CISNET C1S21623

-    Act on the Protection and Settlement Support of Residents Escaping from North Korea 1997 (The Protection and Settlement Act) CISNET C1S21619

-    Immigration Control Act 1992 CISNET 21622

-    The Nationality Act Case 97 Hun-Ka12 [2000] KRCC 13 (a case from the Constitutional Court of Korea).

Article 2(1) of the Constitution provides “Nationality in the Republic of Korea is prescribed by law”. Article 3 states that the “territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands”. The “peninsula” includes the area known as North Korea.

The Nationality Act case considered the Constitution and the Nationality Act provisions and stated that the Supreme Court has previously ruled that North Korea, as part of the peninsular, is subject to the sovereignty of South Korea, and therefore North Korea residency should not interfere with the acquisition of the nationality of South Korea. The court went on to state that although a person with Korean lineage had already acquired North Korean nationality according to North Korean law, they were still considered a national of South Korea at the time of the Founding Constitution on 17 July 1948.

In that case, the Minister of Reunification made a statement to the court that South Korea does not recognise North Korean nationality and thus a citizen of North Korea is considered to have South Korean nationality.

On 3 June 2011 the Federal Magistrates Court handed down judgment in the matter of SZOUY v MIAC [2011] FMCA 347. The Court found that section 91N(1) of the Act must be interpreted to mean that an application for a protection visa is invalid where an applicant has dual nationality, regardless of whether that nationality is ‘effective nationality’ or whether it allows a right to enter and reside in that country.

Your application is therefore invalid because of the application of sections 91N and 91P of the Act. These provisions prevent persons who are nationals of more than one country at the time of visa application from making a valid application for a Protection (Class XA) visa while they remain in the migration zone.

Submissions

Onus of proof

37    The Minister contends that the principal issue in this appeal is who bears the onus of proof in relation to establishing the nationality of the appellants on an application to the Federal Magistrates Court to have the delegate’s decision quashed or on appeal to this Court. The Minister says that as the appellants say that they are both nationals of North Korea, what is in dispute is the delegate’s factual finding that they are also South Korean nationals by virtue of South Korean law. It is for the appellants as the moving parties to establish on the balance of probabilities that the delegate erred in that factual finding and it is not to the point that this means that the appellants are required to prove a negative. The Minister correctly says that there are numerous authorities which consistently affirm that the applicant bears the onus in judicial review proceedings where jurisdictional error is asserted: see SZGUR at [67] per Gummow J and Industrial Equity at 671-672 which were relied on by the primary judge at [14]; see also Brunetto v Collector of Customs (1984) 4 FCR 92 at 97; R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 at 155 per Dixon, Fullagar and Kitto JJ; Re IBM Global Services Australia Ltd [2005] FCAFC 66 at [27] per Gray, Whitlam and Moore JJ; Maroun v Minister for Immigration and Citizenship [2009] FCA 1284 (Maroun) at [15] per Jagot J; Haque v Minister for Immigration and Citizenship (No 3) [2010] FCA 772 (Haque) per Gilmour J at [26]-[29]; Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 (SZLSP) at [71] per Kenny J.

38    The appellants’ submission is:

His Honour summarises the point he believes needs to be determined at paragraph 11:

“… Whether on the evidence 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 …”

We say, with respect, that His Honour misconstrued the onus on the Appellants in reaching that premise. His Honour thereby held that it is for them to prove that they are not citizens of a country. We said and say, that the onus on the Department in making its administrative refusal … was to convince itself of a fact, not for the Appellants to convince the Department, His Honour, or this Court, of a negative.

39    The appellants say that the primary judge should have held that it was necessary in the first instance for the Department to establish the jurisdictional fact of “whether or not the [a]ppellants are citizens of North Korea and therefore South Korea. Then the Department could conclude whether or not they had rights in South Korea of “re-entry”, protection and so on.” They complain that they are in effect called upon to prove a negative.

40    This issue is brought into sharper focus by two factors. The first is the pro forma nature of the Delegate’s Letters which advised the appellants that their applications were invalid. The Delegate’s Letters rely on the fact that the appellants are North Korean citizens, but do not reveal that the delegate took into account the individual circumstances of their parents, as appears to be required under South Korean law for determining South Korean nationality in accordance with [28]-[34] of the primary judge’s reasons. The second factor is the fact that the primary judge was not able to make a finding about the place of birth of either of the appellants’ fathers and was accordingly unwilling to make a declaration of their nationality or of the invalidity of the appellants’ applications.

Pro forma Delegate’s Letters

41    The issue of the pro forma nature of the letters was not raised in the written submissions provided by the parties before the hearing nor does it appear to have been considered by the primary judge. However, in preparing these reasons, I considered that it was necessary to seek submissions from the parties concerning the fact that the Delegate’s Letters disclose that:

(1)     the delegate accepted the appellants’ claims to be North Korean citizens, born in North Korea and that they made no claims to other citizenship;

(2)    the delegate considered that South Korean laws can operate to recognise nationality of persons born on the Korean peninsula;

(3)    however, it is apparent from the primary judge’s findings at [28]-[34] that the factual circumstances of the parents of individuals born on the Korean peninsula are relevant in determining South Korean nationality under the South Korean laws referred to in the Delegate’s Letters; and

(4)    there is no indication that the delegate gave consideration to the particular circumstances of the parents in making the determination that the applications were invalid by virtue of s 91N and s91P.

42    In SZOAU, it was uncontentious that the appellant’s parents were born on the Korean peninsula and that as a matter of South Korean law, such a person was considered to be a South Korean national. There was therefore no attack on the Tribunal’s finding of fact, which was based on expert evidence: the only issue was the construction of Subdivision AK. As noted by Robertson J at [57], it is well established that a question of foreign law is a question of fact.

43    The Minister submits that any error by the delegate as to the content and application of South Korean nationality laws to the appellants would be an error of fact “within jurisdiction”: the failure to make findings as to the birth place of the appellants’ fathers did not amount to a failure to take into account a relevant consideration. Further, even if there had been a jurisdictional error by the delegate, it was corrected by the proceedings before the primary judge: this flows from the place that the delegate’s decision has in the appeal process. The Minister says that the effect of the High Court’s reasons in City of Enfield v Development Assessment Commission at [50] is that it is the task of the primary judge to determine the question of jurisdiction upon evidence before the Court as opposed to the probative material before the administrative decision maker; it is a hearing de novo of that question. The appellants say that this case may be distinguished because in City of Enfield v Development Assessment Commission the primary judge assessed new evidence on a jurisdictional matter during the appeal. In this case, the delegate failed to exercise jurisdiction at all.

44    The appellants contend that, rather than making a finding of fact, a jurisdictional fact, the delegate of the Minister made an assumption of fact, without any opportunity for the appellants to make a submission concerning the question of whether they had dual nationality for the purposes of s 91N having regard to their particular circumstances. They say that on this basis, the primary judge’s remark at [64] that he was not persuaded that the decision made on 7 November 2011 was affected by any denial of procedural fairness or other procedural irregularity was ill founded. Although s 57 of the Migration Act may only apply to the obligation of the Minister to provide information to an applicant with a valid application about reasons why it might not be granted, equivalent standards should be observed before making a decision that a visa application is not valid.

Consideration

45    As the proceedings in the court below were a hearing de novo at which the appellants had an opportunity to be heard and give evidence, those proceedings cured any of the failures of procedural fairness alleged by the appellants because the delegate did not give the appellants an opportunity to be heard and comment on the issue of the validity of their applications before he issued the Delegate’s Letters: Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 per Mason J; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344 at [32] per Finn, Mansfield and Gyles JJ. I have therefore not otherwise considered the validity of the appellants’ submission concerning any alleged want of procedural fairness in the delegate issuing the Delegate’s Letters without affording the appellants an opportunity to comment or be heard.

46    It is not contentious between the parties that the determination of whether a non-citizen is a national of, or entitled to re-enter and reside in, more than one country is a jurisdictional fact to be determined under s 91N as a precondition to the operation of s 91P in relation to the validity of an application for a visa by the non-citizen. Subsection (6) of s 91N is explicit that the question of whether a non-citizen is a national of a particular country is to be determined solely by reference to the law of that country. While it is undoubtedly true that the content of the foreign law is a question of fact, because its application to a non-citizen is a jurisdictional fact I do not accept the Minister’s submission that any error by the delegate in the determination of the content and application of South Korean law to the appellants is an error of fact “within jurisdiction”.

47    Rather, as also submitted by the Minister, it was the task of the primary judge to determine a question of jurisdictional fact on the evidence before him, and in this case on the agreed basis that South Korean law conferred nationality on a person born on the Korean peninsula dependent on the factual circumstances of where his or her father was born: see SZQYM/SZQYN at [27]. I accept the Minister’s submission that this does not change the onus on the appellants to establish that there has been jurisdictional error: see Maroun at [15] per Jagot J:

As a general proposition, the characterisation of a matter as a jurisdictional fact does not alter the appellant’s onus of proof. The legal onus to prove jurisdictional error by the Tribunal lies with the appellant. The legal onus may be discharged by reference to any and all parts of the evidence, but it does not shift from the appellant merely because the fact in issue may be described as a jurisdictional fact (and thus is a matter a court must decide for itself).

48    The Minister submits that this analysis is not altered by the circumstance in which, to discharge this onus, an applicant must prove a negative. So, in Maroun and Haque where a time limit had expired after service of a notice, the onus was on the applicant to demonstrate on the balance of probabilities that they were not validly served rather than on the Minister to demonstrate on the balance of probabilities that service was effected validly.

49    However, “[i]ssues regarding the burden of proof are not always straightforward in judicial review proceedings”: see Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [55] per Kenny J. It is the task of the judge in an application of this kind to make a determination of whether the jurisdictional fact exists on the evidence presented: so much is clear from the statements in City of Enfield v Development Assessment Commission of Gleeson CJ and Gummow, Kirby and Hayne JJ at [50] and Gaudron J at [60] to which the primary judge referred at [15] of SZQYM/SZQYN:

[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.

…

[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. …

50    In this case, the primary judge accepted that it was his task first to establish what South Korean law is in relation to nationality (to satisfy s 91N(6)), and then how it applied to a person in the circumstances of the appellants according to the evidence presented to him: see [25]. However, I consider that the primary judge erred when he accepted that in order to discharge the onus of proof of error by the delegate in his finding of jurisdictional fact the appellants had to prove that they were not South Korean nationals: see [11]. This conclusion is not mandated by the statement of Gummow J in SZGUR at [67] (citations omitted):

An applicant in the Federal Magistrates Court for judicial review of the Tribunal’s decision, as the moving party, bears the onus of establishing jurisdictional error on the part of the Tribunal. Nothing in the Migration Act displaces the usual position that it is for the moving party to make out its case. In Industrial Equity Ltd v Deputy Commissioner of Taxation, Gaudron J made a similar point with respect to the ADJR Act. We are not concerned here with questions of a presumption of the regularity or validity of administrative action. Rather, the point to be made is that it fell to the first respondent to establish a basis for drawing the inference necessary to make out the alleged jurisdictional error. There was certainly no burden upon the Minister to demonstrate the positive proposition that the Tribunal had indeed considered the request.

51    In City of Enfield v Development Assessment Commission, the High Court envisaged that a reviewing judge may give weight to the findings of an administrative body. At [47] and [50] Gleeson CJ, Gummow, Kirby and Hayne JJ said (citations omitted):

The weight to be given to the opinion of the tribunal in a particular case will depend upon the circumstances. These will include such matters as the field in which the tribunal operates, the criteria for appointment of its members, the materials upon which it acts in exercising its functions and the extent to which its decisions are supported by disclosed processes of reasoning. A similar view appears to be taken by the Supreme Court of Canada.

…

… 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.

and at [60] Gaudron J said:

… 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 the 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.

52    In this case, it is not clear that the delegate did perform the task of considering the appellants’ circumstances by reference to a detailed consideration of the requirements of South Korean nationality law: the inference open from the Delegate’s Letters is that in light of the decision in SZOUY, the “effective nationality” issue was no longer an impediment to treating any person of admitted North Korean nationality as a dual citizen of South Korea. This was not the agreed position of the parties at the hearing before the primary judge nor is it correct having regard to the primary judge’s findings on the nationality laws of South Korea based on the documents which were provided to the primary judge by the Minister. Further, since the factual application of South Korean nationality laws to the applicants/appellants in SZOUY and SZOAU was not in issue, those cases do not stand for the proposition that s 91N is engaged simply because an applicant for a visa was born in North Korea.

53    There are no other findings of the delegate apparent in the Delegate’s Letters and it is not evident from the primary judge’s reasons that he was provided with evidence of the delegate’s fact finding over and above that the appellants were North Korean citizens. Certainly none was provided to this Court on appeal. On this basis, once the primary judge had found that the place of birth of the appellants’ parents was a relevant factor in determining whether either of them was a South Korean national, it would not have been appropriate to apply any presumption in favour of the validity of the delegate’s decision: it was an issue for the primary judge to determine on the evidence before him.

54    At [62], the primary judge accepted that the appellants’ visa forms had been a “legally sufficient” basis for the administrative decision concerning dual citizenship. At [63] he says that he is not persuaded that the delegate’s decisions of 7 November 2011 can be quashed because there is no evidence to support them; at [64] he says that he does not think the decisions were affected by lack of procedural fairness or other procedural irregularity and at [65] he notes that there is nothing final and conclusive about the delegate’s decisions because it is open to Ms SZQYM and Mr SZQYN to reapply to the Department if they wish and present additional evidence.

55    This reasoning is more apt to judicial review of a decision such as that to be made under s 65 of the Migration Act where the administrative decision maker is called upon to reach a state of satisfaction that criteria set out in the Migration Act for the grant of a visa have been met, failing which a visa must be refused. The question before the primary judge was not whether the delegate’s decision was reasonably open to him or whether there was any evidence upon which he could form the view that he did. It is not even a case of the better expertise of the delegate in relation to migration matters appropriately prevailing in a case where reasonable minds could differ as to the conclusion to be reached. There is no reason to think that the delegate had any greater expertise than the primary judge in respect of these matters. Both would undoubtedly have benefited from detailed expert opinions in the interpretation of South Korean law which addressed all issues relevant to the question of whether the appellants would be considered South Korean citizens even though they had never entered that country, including the circumstances in which South Korean nationality can be obtained through the maternal line, any relevant qualifications to those circumstances and whether more than birth on the Korean peninsula before 1948 is required to establish a father’s Korean nationality.

56    The question was whether, upon the evidence presented to the primary judge, the appellants were nationals of South Korea according to the law of that country. If, as he said at [27], the primary judge could not make a confident finding of the places of birth of the fathers of the appellants (and any other requirements that South Korean nationality law may require), then it was necessary for him to find that the preconditions to s 91N and therefore to the application of s 91P had not been made out. Contrary to what the primary judge said at [14], in that circumstance the appellants had discharged the onus of proof or persuasion because it demonstrates that the delegate made the decision of invalidity of the appellants’ applications without statutory authority.

57    I consider that the primary judge misinformed himself when he accepted at [27] 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”. While it is undoubtedly true (on the basis of South Korean law as found by the primary judge) that the appellants would not be South Korean nationals in that case and therefore unsurprising that it was common ground between the parties, it was not the test. For s 91N to apply to the appellants it was necessary for the primary judge to find, on the balance of probabilities, that the appellants’ fathers were born within the Korean peninsula and thus that a necessary precondition to the operation of s 91P had been made out.

58    It was the primary judge’s view that evidence bearing on a person’s foreign nationality should be approached with caution in arriving at findings “for or against” the existence of foreign nationality, even on the balance of probabilities, having regard to the principles in Briginshaw and s 140(2) of the Evidence Act because the Court’s decision is binding on the Minister and applicant alike and can affect applicants and even their progeny with unforeseeable consequences: see [14]-[18]. I accept that it is necessary to have clear evidence to establish that a person has a foreign nationality according to the laws of a foreign state. In this case, such a finding would have the effect under s 91N and s 91P of invalidating the appellants’ protection visa applications, however much in need of protection they may be. However, by making the application to have the delegate’s decisions set aside, the appellants exposed themselves to that consequence. They are, after all, already suffering the consequences of an administrative determination that their protection visa applications are invalid. That is a serious consequence which would not follow if the Court finds insufficient evidence to establish that the appellants have more than one nationality.

59    The test is the ordinary civil standard. I do not agree that the Briginshaw standard needs to be met in making a determination that a foreign nationality has not been established merely because an administrative decision maker found that it did. Nor do I consider that deference to the administrative decision can be justified on the basis that it remains open to the appellants to make further applications should better evidence arise; the pro forma nature of the Delegate’s Letters does not invite the hope that the Department would have given to a later application a more sophisticated consideration of the circumstances of the applicant’s parents, as appears to be required from the primary judge’s review of South Korean nationality law.

60    I will turn now to consider the evidence in relation to each of the appellants.

Ms SZQYM

61     In the case of Ms SZQYM, the primary judge found that the only overtly ascertainable facts were that she appears to be an ethnically Korean woman of uncertain age who can converse in the Korean language: at [36]. Her visa application states that she was born in North Korea in 1978 and the attributes of her father are that he was born in “China”, his residence was North Korea and he was North Korean “by birth” in 1938. Noting that “by birth” and the date were written in a different hand, the primary judge drew no inference from this given that Ms SZQYM signed the declaration attached to the visa application which was witnessed by her solicitor: at [40].

62    I agree that there is “some tension” between these assertions and it is not apparent from the evidence how they are to be reconciled. At the hearing Ms SZQYM withdrew the claim that her father was North Korean by birth, asserting that she had made it on the basis that she thought it would more acceptable to the Australian government. No clarification was given as to the exact place of birth of her father and her best evidence was that she “had heard” that her father was born in China: [41] and [48]. She has never seen a birth certificate for herself or either of her parents: at [47]. Her affidavit evidence is that she is not South Korean, has never been to South Korea, nor does she understand herself to have a claim to be a South Korean national: [45].

63    The primary judge speculated as to how Ms SZQYM’s father might be a North Korean citizen “by birth” given her claim that he was born in China, but noted that “[t]hese 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”: [41]. I agree that these explanations are speculative: I do not consider that they are sufficient to establish the place of birth of her father within the Korean peninsula or to ground an administrative decision that s 91N applies to Ms SZQYM, as suggested by the primary judge at [62]. The primary judge found that Ms SZQYM’s opinion that she does not have South Korean citizenship “appeared to have no reliable basis”: [49]. It is, however, evidence that she does not claim South Korean citizenship.

64    I do not consider that there is sufficient evidence to ground a finding that Ms SZQYM is a South Korean national on the balance of probabilities nor do I consider the delegate’s decision that she was a South Korean national to be safe. Ms SZQYM’s visa application stated that her father was born in China and that has been her consistent evidence. While there are possible explanations, there is no evidence of how a person born in China can be a North Korean “by birth”. She specifically disclaims being a South Korean national. It is notable that her visa application was made before SZOUY or SZOAU were decided, so it is difficult to see how it could have been crafted to take account of them, although some suspicion about her evidence before the primary judge would be open.

Mr SZQYN

65    Mr SZQYN’s visa application indicated that both he and his parents had been born in North Korea but did not indicate his parents’ citizenship or nationality. By his affidavit, Mr SZQYN also denies that he is or has a claim to be a South Korean citizen; at best this is evidence that he does not claim to be a South Korean national. His evidence at the hearing before the primary judge was that he said his parents were from North Korea because he feared he would be sent to China if he said his parents were Chinese. He gave vague evidence of his family background which was unsatisfactory in circumstances where he lived with his father until his father’s death when Mr SZQYN was 29.

66    The primary judge found Mr SZQYN to be an unsatisfactory witness and his evidence unreliable. Where there are no documents to support a claimed identity, the Department and relevant tribunals dealing with review and appeals have no choice but to act on the claims made in the visa application. However, like the primary judge, I find the evidence insufficient to make a finding that Mr SZQYN is a South Korean national and I share his concern as to whether the simple fact of the birth of a father on the Korean peninsula before 1948 is enough to establish South Korean nationality on the basis of nature of the materials to which the primary judge had access.

Conclusion

67    I have considerable sympathy for the position of the primary judge in the absence of any real attempt by either the Minister or the appellants to provide reliable expert opinion of South Korean nationality law in relation to the specific circumstances of the appellants.

68    The primary judge’s concern that there was no official document on the basis of which either the Department or he could establish the identity of the appellants is valid. However, I consider that the primary judge erred in finding that in the face of the dearth of evidence he had a basis for upholding the administrative decision taken by the delegate that the appellants had dual nationality. Whatever the content of South Korean nationality law, it is plain that the mere fact that the appellants claimed to be North Korean nationals is not enough to engage the operation of s 91N. The pro forma Delegate’s Letters were not a sufficient basis to throw the onus on the appellants to prove that they are not South Korean nationals once the primary judge was satisfied that South Korean nationality laws are more complex than the summary given in the Delegate’s Letters.

69    As neither the primary judge nor I have been able to find evidence which satisfies either of us, on the balance of probabilities, that either of Ms SZQYM or Mr SZQYN is a South Korean national, their appeals should be allowed, the decisions of the delegate advised in the Delegate’s Letters should be quashed and writs of mandamus should issue requiring the Minister to consider their applications for protection visas according to law. The Minister should be ordered to pay the appellants’ costs of the appeal in this Court and in the Federal Magistrates Court.

Associate:

Dated:    1 May 2014