FEDERAL COURT OF AUSTRALIA

SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court made on 15 March 2019 be set aside and in lieu thereof, subject to order 4 below, the Court orders that:

(a)    the decision of the Administrative Appeals Tribunal made on 30 October 2018 be set aside;

(b)    the matter be remitted to the Tribunal for decision according to law; and

(c)    the first respondent pay the applicants’ costs.

3.    The first respondent pay the appellants’ costs of the appeal.

4.    Any party seeking to vary order 2(c) or 3 above, file and serve two pages of written submissions by 4pm 17 June 2020, any submissions in response to be filed and served by 4pm 19 June 2020 and the question thereafter to be dealt with on the papers.

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

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court made on 15 March 2019 be set aside and in lieu thereof, subject to order 4 below, the Court orders that:

(a)    the decision of the Administrative Appeals Tribunal made on 30 October 2018 be set aside;

(b)    the matter be remitted to the Tribunal for decision according to law; and

(c)    the first respondent pay the applicant’s costs.

3.    The first respondent pay the appellant’s costs of the appeal.

4.    Any party seeking to vary order 2(c) or 3 above, file and serve two pages of written submissions by 4pm 17 June 2020, any submissions in response to be filed and served by 4pm 19 June 2020 and the question thereafter to be dealt with on the papers.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1    The resolution of these two appeals turns on considerations of a narrow character. That said, the breadth and nature of some of the matters raised in the appeals have caused me considerable concern. That concern arises from how the appellants have been treated by or in (if I may use the phrase) “the process” of their applications and from the human consequences to them of the rejection of their applications for protection – the risk of being returned to North Korea.

2    In the matter of SZQYM and another, the appellants are a mother and son. I will refer to them as Ms M and Master M. Ms M arrived in Australia in 2011 and sought protection by application received on 30 May 2011. Master M was born in December 2012.

3    The appellant in the matter of SZQYN, to whom I will refer as Mr N, also came to Australia in 2011, applying for protection on 11 April 2011. Ms M and Mr N do not claim to be personally related; but there was a suggestion by Departmental officers said to be based on things said by Mr N, which suggestion was taken up by the Tribunal member, as to Mr N being the father of Master M. The matters were heard by the same Tribunal member, and the judicial review proceedings and appeal have proceeded together for reasons unrelated to this suggestion.

4    The common treatment of their applications arose from the approach taken by the first delegate dealing with their applications. Based on what they had put in their applications about where they and their parents were born, each was treated by a delegate of the Minister as a national of the Democratic People’s Republic of Korea (North Korea) and of the Republic of Korea (South Korea). Various provisions of South Korean law were relied upon to draw the conclusion that South Korean law viewed North Koreans as South Korean nationals. Thus, it was said that, through the combined operation of ss 91N and 91P of the Migration Act 1958 (Cth) (the Act), both applications were not valid.

5    Unsuccessful challenges were made to these decisions before the Federal Magistrates Court. The applications were brought by a common solicitor. The appeals to this Court were successful: SZQYM v Minister for Immigration and Citizenship [2014] FCA 427; 220 FCR 505 (Farrell J). Without fully recounting the decision of Farrell J, it suffices to say that it was important for there to be some clarity in findings as to the operation of s 91N, that is, as to relevant jurisdictional facts that led to the legal conclusion that the two applications were invalid. Relevant to that finding – that the applicants had South Korean nationality – were the places of birth of the parents of Ms M and Mr N. It was not enough that the applicants were born in North Korea for there to be South Korean nationality (by South Korean law). For each applicant (Ms M and Mr N) it was important to know where their fathers were born. Ms M’s visa application stated that her father was born in China, but also that he was a citizen or national of North Korea “by birth”. Mr N’s visa application stated that his parents were born in North Korea. It is unnecessary to be precise or to identify the legal basis for the conclusion, but it would appear that a North Korean born applicant with a father born in China and a mother born in North Korea will be a North Korean national, but may not be a South Korean national. On the other hand, a North Korean born applicant with both parents born in North Korea may be both a North and South Korean national. One of the errors of the Federal Magistrate found by Farrell J was the proposition that it was for the applicants to prove that they were not South Korean nationals: 220 FCR at 519–520 [50]. It is important, however, to appreciate that the Federal Court did not find that the appellants were North Korean or born in North Korea. Though, there does not appear to have been any doubt raised about this in the first dealings with their applications.

6    The matter was remitted to the Minister for reconsideration. As to both applications (of Ms M and Mr N) there were two decisions made by two delegates. On 4 September 2015 a delegate (the same for both applications) once again found the applications invalid by the operation of ss 91N and 91P. The delegate stated in notifications, each dated 4 September 2015:

Sections 91N and 91P of the Act provide that a non-citizen who is a national of two or more countries is unable to lodge a valid Protection visa (PV) application (the s91P bar).

On the basis of the information you have provided in support of your Protection visa application, and in light of available evidence from authoritative sources, it can be concluded that you, and your son, [Master M], are nationals of the Democratic People’s Republic of Korea [North Korea] and The Republic of Korea [South Korea].

7    Notwithstanding this, the Department, through another officer (the second delegate to whom I will refer in a moment), did in fact examine the position of the applicants. In November 2015, the lawyers for Ms M and Mr N communicated in somewhat tense terms to the first delegate as to the necessity to examine the applications on their merits, stating the following:

You have been ordered by the Court to consider these visa application[s] according to law.

There is no evidence that contradicts the fact that these Applicants … are refugees from North Korea who do not have any right of refuge in South Korea.

The fact that you are considering the matter at all reinforces that fact. That is because, if they had [a] right of refuge in South Korea, they could not make a valid visa application for you to consider.

We have not been shown any assertion that they have any right of citizenship anywhere else. Therefore they cannot be “returned” anywhere else.

If such latterly discovered assertions are made, then we need to see what they are.

Failing that, we respectfully submit that failure to grant the applications would be a direct defiance of the Court’s Judgment. You have been ordered to consider it according to law. If such an act occurs, we will bring the matter immediately back before Farrell J.

The communication also raised a matter of a personal nature:

Due to a baseless claim that has been made by more than one officer of the Department on a number of occasions, we need to stress a fact about [Ms M] and [Mr N]. They do not know each other. The only characteristic they have in common is that that [sic] are coincidentally represented by this firm, having been referred by a charity, in view of the similarity of their predicaments.

Therefore the statement by more than one of your colleagues that [Mr N] is the father of [Ms M]’s baby, is absurd and false. Please record that on the file. The fact that more than one officer has made this prejudicial and false claim, indicates that there is a false entry on the file that must be corrected.

8    Two weeks later, on 30 November 2015 the second delegate sent notifications to Ms M and Mr N of refusal of their applications for protection visas. On this occasion the delegate was not satisfied that either was North Korean. As to Ms M the delegate stated:

Given the following country information, it is reasonable to consider the applicant should have been able to demonstrate knowledge reasonably expected of a North Korean citizen. The country information indicates that the North Korean government forcibly propagates a nationalist ideology based upon the cult of personality surrounding both Kim Il Sung and his son Kim Jong Il. All citizens are required to adhere to this belief system, often called Juche, or face onerous fines and penalties. Every North Korean wears a lapel pin of the Great Leader, and students are required to study and memorise the “Ten Principles for the Establishment of the One-Ideology System of the Party.” Each North Korean community reportedly maintains a “Kim Il Sung Research Center” or similar institution where local citizens are required to attend weekly meetings to watch propaganda films, listen to educational sessions and engage in public self-criticism sessions.

During the Protection visa interview the applicant was given opportunity to demonstrate that she was a North Korean citizen and has resided in North Korea until departing from China. The applicant did not demonstrate knowledge of North Korea that it would be reasonable to expect from someone who claims to have been born in North Korea on xx/xx/1978, was raised in North Korea, was educated in North Korea, was employed in North Korea until departing for China on 03/09/2003. Therefore I cannot be satisfied that the applicant is a North Korean citizen.

(Footnotes omitted.)

9    As to Mr N the delegate stated:

There is no documentation before the Department indicating that the applicant is a citizen of North Korea. Therefore during the Protection visa interview I explored the applicant’s knowledge of North Korea.

During the Protection visa interview the applicant was given opportunity to demonstrate that he was a citizen of North Korea and had resided in North Korea. The applicant demonstrated a basic degree of knowledge of North Korea (for further details refer to the recording of the Protection visa interview folio 15 CLF2014/135524). However, knowledge by itself does not establish a fact as information as can be learned for the purpose of a Protection visa interview. With the absence of documentation and a language analysis I am unable to be satisfied without reasonable doubt that the applicant is a North Korean.

10    The delegate, however, “to err on the side of caution,” did assess each assuming she and he to be North Korean. On this hypothesis, it was considered that each had a right to enter and reside in South Korea, not on the basis of nationality or citizenship which might found an application of s 91N, but on the basis of country information that there was a long-standing policy of South Korea giving protection and settlement assistance to North Koreans, thus engaging the operation of s 36(3) of the Act.

11    Ms M and Master M, and Mr N applied to the Administrative Appeals Tribunal for review of these decisions. The same Member heard both applications. The applications and the hearings were separate; though there was some common important evidential material put forward in support of both applicants Ms M and Mr N.

12    Ms M attended two hearings before the Member, on 18 October 2017 and 20 April 2018; Mr N attended one hearing, on 20 October 2017. Both Ms M and Mr N have made complaints about how they were treated at the hearing. Both asserted that the Member displayed such an attitude that she revealed apprehended bias. No claim of actual bias was made. After over seven hours of interview (on the two separate occasions) Ms M was distressed and sobbing at the end of the second hearing. During his four hour interview Mr N seemed to become (at least when one listens to the recording) exasperated or frustrated.

13    The Tribunal handed down its decisions on 30 October 2018.

14    Applications for judicial review of the Tribunal’s decisions were made to the Federal Circuit Court. These applications were founded upon asserted apprehended bias of the Member, and upon an asserted breach of s 424 of the Act. The applications set out the following grounds for review:

1.    That it was not at law a competent decision under the Act.

2.    That The Tribunal’s Decision was encumbered by characteristics which would lead a reasonable person to apprehend bias, and was thus not an effective decision that is protected by Section 474.

3.    The Tribunal breached Section 424.

4.    Such other grounds as this Honourable Court deems fit.

15    The applications were both dismissed by the Federal Circuit Court on 15 March 2019: [2019] FCCA 489 and [2019] FCCA 490. During the hearings of the applications, the judge listened to parts of the recordings, but rejected significant portions of an affidavit of Ms Ford, the migration agent of both applicants, who had attended the hearings. Ms Ford is an experienced migration agent and a former member of the Migration Review Tribunal and Refugee Review Tribunal. Some of the rejected parts were clearly inadmissible. Some, however, was evidence of observation about which it will be necessary to refer to s 78 of the Evidence Act 1995 (Cth). An illustration can be found in [8], rejected by the primary judge (see the Respondent’s Appeal Book in NSD496/2019 p 769):

I witnessed throughout the course of all hearings that the Tribunal Member adopted a demeanour of aggression towards the Applicants. … By aggression, I mean what I have confirmed in the dictionary to define that word: feelings of anger or antipathy resulting in hostile or violent behaviour; readiness to attack or confront. I have attended hearings of the Tribunal since 2011 when I became a Migration Agent, and I attended them … when I was a member of the Tribunal from 2007 to 2010 … I have not previously witnessed in all that experience, behaviour that could be described as “aggression” as I describe it herein. I do not say, in that connection, however, that the Member engaged in violent behaviour.

(Italics in original.)

16    The primary judge also rejected a detailed schedule of annotated transcript references as to relevant complaints: see the Respondent’s Appeal Book in NSD496/2019 p 933–955.

17    Ms M and Master M, and Mr N appeal to this Court.

18    The amended notices of appeal raised a number of grounds. The first ground covered apprehended bias: that the judge rejected evidence as to the conduct of the hearing, in particular Annexure 3 to Ms Ford’s affidavit (ground 1); and that the judge failed to consider compelling evidence supporting a finding of apprehended bias and failed to find apprehended bias (ground 2).

19    The second ground of appeal (in ground 3) concerned the Tribunal’s asserted error in stating that the appellants “may” be from China.

20    The third ground of appeal (in ground 4) complained about a failure to apply Farrell J’s decision properly.

21    Two other grounds were the subject of an amendment: grounds 4A and 5. They were expressed as follows:

4A    His Honour erred in finding that there was no jurisdictional error on the part of the Tribunal in that the Tribunal relied upon a fundamental error of fact as to terms of the report by Dr Lee so as to incorrectly assert that the report found the appellant could be a Chinese national of Korean ethnic origin which error was incorrectly used to impugn the credit of the appellant.

…

5    His Honour erred at [47] by failing to find that the Tribunal engaged in jurisdictional error by failing to identify and assess a ‘receiving country’ for the purposes of s 36(2)(aa) to which the appellant would likely be sent by the Minister under s198 of the Act.

22    Ground 4A is a new ground not argued below. Ground 5 was faintly put below.

Summary of my approach

23    Leave should be granted for ground 4A to be raised. In my view, it is made out. The Tribunal plainly misinterpreted an important piece of expert evidence of Dr Lee which was directed to a central issue (the North Korean origins of both Ms M and Mr N). The mistake was, textually, understandable at a first reading, but any ambiguity would have been plainly resolved by any sensible and fair reading of Dr Lee’s report. The essence of Dr Lee’s report was that he was “highly certain that [Ms M and Mr N] are from North Korea.” The slightly ambiguous, and plainly misread sentence in the previous paragraph, permitted or encouraged the Tribunal to consider that Ms M and Mr N may be ethnic Koreans living in China – so Chinese with a Korean ethnicity. This misunderstanding of central and tolerably plain language, read in its context, can be seen to infuse the questioning at the hearings, and threw into legitimate doubt any reliability about the credit findings. Even if it be the case that the proper conclusion was that there was a degree of ambiguity about the sentence, it was impermissible to use one possible reading of one sentence as necessarily correct in the face of the tenor of the whole report.

24    In the light of this conclusion, it is strictly unnecessary to deal with the apprehended bias claim. It is generally appropriate, however, to deal with such a claim, and to deal with it first, since it is an allegation of a form of unfairness. I have, however, considered the affidavit evidence of Ms Ford, the whole of the transcript of the Tribunal hearings, and significant portions of the recordings of the hearings. Those matters, together with the approach of the Member in her reasons and the history of the applications, leave me with significant concern as to the reliability of the conclusions that these appellants are not North Korean and a significant concern that the appellants themselves may doubt legitimately, in their own minds, the fairness of what has happened to them. That said, though I am significantly troubled by the approach to the hearings, in particular, some of the questions asked by the Member of Ms M, and some of the findings on credit, I am not prepared to conclude that a fair-minded lay observer reading the transcripts, listening to the tapes and reading the reasons (if the last consideration, being the form of the reasons, can legitimately be taken into account: Michael Wilson & Partners v Nicholls [2011] HCA 48; 244 CLR 427 at 446–447 [67]–[68]; CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 375 ALR 47 at [20] per Kiefel CJ and Gageler J and at [135] per Edelman J; cf [68]–[69] per Nettle and Gordon JJ; cf NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264) might reasonably apprehend that the Tribunal might not bring (or have brought) a fair, impartial and independent mind to the task.

25    The whole approach of the Tribunal also raises an important, and not straightforward, question as to the operation of s 36(2)(aa) of the Act in ground 5. This ground should also be upheld.

The expert evidence of Dr Petrov and Dr Lee obtained before the Tribunal hearings

26    The Tribunal came to examine the claims of Ms M and Mr N in the light of the second delegate not being satisfied that she and he were North Korean. That conclusion in respect of Ms M had been founded (see [8] above) on a perceived lack of ability of her to demonstrate, to the delegate in November 2015, knowledge reasonably to be expected of a North Korean citizen.

27    It was no doubt for that reason that those acting for Ms M and Mr N retained Dr Petrov and Dr Lee to give reports on this issue. Dr Petrov was a Korean Studies Researcher at the Division of Pacific and Asian History, School of Culture, History and Language, College of Asia and the Pacific, from the Australian National University. The report dealt with both applicants, Ms M and Mr N. Dr Petrov conducted interviews in Korean, using video conference technology. He detailed the method used, as follows:

A socio-linguistic method of cultural identification was used during the interview. Socio-linguistics is concerned with language in social and cultural context, especially how people with different social identities (e.g. gender, age, ethnicity, class etc.) speak and how their speech changes in different situations. Its methodology and interpretation are based on research by Milroy & Gordon (2008) and Deckert & Vikers (2011).

Both interviews were conducted in Korean. The participants were asked ten various questions about their past and present life with the purpose to identify their ethnic, regional, and cultural background. Both clients appeared to be of North Korean origin, were prone to use the northern provincial dialects, and demonstrated excellent knowledge of everyday life in the Democratic People’s Republic of Korea (DPRK).

28    Dr Petrov said the following about Mr N:

Mr. [N] (born 1968) claims to be a native of Ryanggangdo province, Kim Hyonjik (Huchang) county, the most-northern part of North Korea. He crossed the DPRK-PRC border in 2003 and spent eight years in China, residing in the Korean Autonomous Prefecture of Yanbian. Perhaps, the time spent among the ethnic Koreans in China had affected his counting habits (at the interview he pronounced the “year 2003” like Chinese Koreans do). He understands the North Korean dialect and speaks with a distinct northern accent. He also demonstrated a great knowledge of North Korean everyday life in the province and also in Pyongyang, the capital of city [sic], which he visited in 1982. His usage of specific terms and slang leaves no doubt that he had spent a considerable part of his life in the DPRK.

29    Dr Petrov said the following about Ms M:

Ms. [M] (born 1978) claims to be a native of Hamheung, the eastern port city in Hamgyeong-Namdo Province of North Korea. She crossed the DPRK-PRC border in the same 2003 and spent eight years residing in China’s northeast Liaoning Province. This fact may explain her excellent knowledge of Mandarin and relatively uncorrupted Korean. She understands the North Korean dialect and slang, but tries to use the standard Korean pronunciation (Pyojungmal) adopted in South Korea and among the Korean community in Australia. Her description of the city of Hamheung and other places in North Korea are consistent with the realities of life in the DPRK before 2003.

30    His unequivocal conclusion about both was expressed as follows:

In the process of interviews, I have become convinced that both Mr. [N] and Ms. [M] hail from North Korea. They lived in different provinces of the DPRK during the 1980s and 1990s and left the country shortly after the market-oriented reform began to be introduced in 2002. These findings are consistent with their knowledge of vernacular speech, geographic names and realities of everyday life in North Korea at that time.

31    An offer by Dr Petrov of a more detailed report was not taken up by those acting for Ms M and Mr N. In the light of the way the report was treated by the Tribunal, it would be important to understand from Dr Petrov whether in his opinion someone not from North Korea, presumably of Korean extraction, having lived in China (or indeed elsewhere), could have learnt the matters dealt with in the interviews while in Australia in the previous 12 months. This is particularly relevant to Dr Petrov because his conclusions were not just based on knowledge, but also on speech.

32    A report was also obtained from Dr Isaac (Dong Bae) Lee of the School of Languages and Comparative Cultural Studies at the University of Queensland. Dr Lee is a highly published academic whose research interests are Korean language textbooks, Korean ethnic identity and the Korean language. I would infer from his first name that he is of Korean background. He obviously speaks Korean. Given the issue it is important to set out the whole of the report:

I am writing this letter to present the result of the interview of the original background of [Mr N] and [Ms M].

I have interviewed [Mr N] and [Ms M] on December 20th, 2016 on the phone to find out whether they are from North Korea or not.

I am certainly convinced that they are from North Korea. I have been conducting my research on North Korean education and their textbooks, in particular their political ideologies which embedded in their everyday lives.

During the interview, I asked questions that are related to the contents of their textbooks, and extracurricular activities. Pupils in schools are forced to participate in the small group activities called sojo activities, and Youth pioneer in North Korea. They use special slogan[s] they shout at their meetings, and promote Kim as the deity person, instilling their political ideologies. They were well aware of those.

In addition, the North Korean students also learn Kim Il-Sung’s anti-Japanese guerrilla activities and, I asked several questions regarding to this content, they answered correctly. If they weren’t from North Korea, or ethnic Korean who live in China, they would not be able to answer correctly to all the questions I have asked.

Therefore I am highly certain that they are from North Korea. I hope you accept them as refugees.

If you have any inquiry, please do not hesitate to contact me.

(Emphasis added.)

33    The (emboldened) last sentence of the fifth paragraph, if read in isolation, could bear two meanings, bearing in mind the double negative within it: (1) If they were not North Korean or if they were not ethnic North Korean who live in China, they would not have been able to answer the questions. In other words, only North Koreans or ethnic Koreans who live in China would have been able to answer the questions; or (2) If they were not North Korean, or if they were ethnic Korean who live in China, they would not have been able to answer the questions. In other words, only someone from North Korea would have been able to answer the questions.

34    The use of the double negative (separated by a positive phrase without a verb) leads to this ambiguity, read in isolation. Looking to the sentence in context, however, there can be no reasonable doubt that the intended objective meaning is the second, not the first above. The purpose of the inquiry was to find out whether Ms M and Mr N were “from North Korea or not”: second paragraph; Dr Lee said that he was “certainly convinced that they are from North Korea”: third paragraph; and that he was “highly certain that they are from North Korea”: sixth paragraph. The reading of the last sentence of the fifth paragraph as an expression of the view that ethnic Koreans who live in China could have answered the questions is contrary to the whole report and its enquiry and expression of conclusion as to whether Ms M and Mr N are “from North Korea or not [from North Korea].”

35    Dr Lee did not base his conclusions upon language or speech as Dr Petrov had in part. Nevertheless, if it were to be asserted that Ms M and Mr N were not from North Korea it would be important to understand whether the knowledge exhibited by them that convinced Dr Lee that they were from North Korea could have been learnt in Australia in the previous year by persons of Korean ethnicity, who had lived in China or elsewhere, but were not from North Korea.

The decisions of the Tribunal

The decision concerning Ms M and Master M

36    The decision was 46 pages and 220 paragraphs of single spacing.

37    The decision began with a summary of the history. In [7] of the decision reasons, the Tribunal referred to the Federal Magistrate considering that the visa application form contained an inconsistency as to her father’s birthplace. As will be seen in due course, this assertion of inconsistency was important. Later, in [9] of her reasons, the Member stated the following about the issue and the Federal Magistrate’s reasoning:

At the hearing before the FMC the applicant withdrew the written claim that her father was North Korean by birth, asserting that she had made it on the basis that she thought it would be 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. She has never seen a birth certificate for herself or either of her parents.

38    Given the importance of this issue of inconsistency to the Tribunal and the emphasis that it was given in submissions it is perhaps best to deal with this at the outset: There was no inconsistency. In the protection visa application form, question 11 asked for the country of birth and citizenship of close relatives. Ms M, through the writing of an interpreter, wrote (on 19 May 2011 – before any focus of debate of the place of parental birth) “China” adjacent to “Country of birth” and immediately below it “North Korean” adjacent to “Citizenship”. As to her mother and sister, she wrote “North Korean” and “North Korean” in the equivalent adjacent boxes. About a week later, Ms M, with interpreting and legal assistance, filled out another form which required her to state her father’s “place and country of birth” and in two adjacent boxes, “Citizenship” and “Date granted”. She wrote in the hands of, I infer, the lawyer and the interpreter: “China” (as to place of birth of her father, in the lawyer’s hand), “North Korea” (as to citizenship of her father, in the lawyer’s hand) and “By Birth xx/xx/1938” (as to date granted, in the interpreter’s hand).

39    Ms M filed an affidavit in the Federal Magistrates Court. She said nothing in it about her father’s birthplace. She was, however, examined and cross-examined on the question. The evidence concerned the ascertainment of, or uncertainty about, the jurisdictional fact thrown up by the possible application of s 91N, being or including the birthplace of her father. In answering in chief to a question whether she knew where her parents were born she said (through an interpreter): “They are in North Korea, but I’m not quite sure where they were born. … I have heard that my father was born in China, but my mum is in North Korea but I wasn’t sure where she was born.” When asked, in chief, to confirm that she was not sure, she said “Yes I just heard.” There was then a reference by the lawyer to a “page 51”. She was asked to look at it and was asked “you said on page 51 that they were born in North Korea, why did you write that?” She answered, “Because that’s what I heard so I just wrote it down that way.” That was plainly incorrect as she had not written that about her father. The lawyer recognised the mistake in the question immediately (he had been looking at the part of the form concerned with brothers and sisters), and he withdrew the question. Ms M then said about her parents and herself that she had never seen any birth certificates.

40    In cross-examination the following exchange took place:

MR GODWIN: In your application form you said that your father had North Korean citizenship by birth; why did you say that?

THE INTERPRETER: I wrote it that way hoping the Australian government would help me if I write it that way.

MR GODWIN: It is your understanding that your father was a North Korean citizen by birth, isn’t it?

THE INTERPRETER: No, my father was not born in North Korea. I have heard that he was born in China.

41    There was plainly no inconsistency in this exchange or in saying that the father was born in China, but was of North Korean citizenship “by birth”. The reason Ms M gave as to why she wrote it bespoke no dishonesty or inconsistency. She did not withdraw anything. The last two questions quoted above reveal only a confusion between cross-examiner and Ms M. She thought she was being asked where her father was born. That place and any citizenship because of it, in particular in the light of many Koreans from the north fleeing to China in the 1930s from the Japanese invasion, is readily explicable in connection with someone such as her father if he had returned to North Korea. The quote at [37] above and, in particular, the implication of dishonesty in the first sentence that was developed later in the decision are without rational foundation.

42    The Tribunal then summarised Ms M’s claims in her visa application form; recounted what she had said in an undated statement submitted with her application in May 2011; referred to documents submitted to the Department on her behalf; referred to the Departmental interview about her identity and her use of a fake Chinese passport, provided to her by her broker before she passed through immigration on arrival in Sydney; recounted the first decision of the delegate and submissions made on her behalf thereafter; described the birth of Master M in December 2012 and his dependent claims; and described submissions explaining why she had no documents identifying herself. At [33] of the decision, the Tribunal referred to the complaint by the agent of the references made by Departmental officers that Mr N was Master M’s father.

43    The Tribunal then turned (at [34]–[38]) to the protection visa interview with, and the decision record of, the delegate. At [36]–[37] of the decision the Tribunal stated:

The delegate noted that during the interview the applicant had been given an opportunity to demonstrate that she was a North Korean however it was considered that she did not do so, when having regard to her claimed circumstances. The delegate was not satisfied on the evidence presented that the applicant was a North Korean citizen (nor that her claims in that regard were true).

The delegate noted that the applicant consented to a language analysis of the voice on the recording of the protection visa interview. This appeared not to have been done, as the delegate stated that, given the country information in relation to South Korea, there is no need to determine whether she is or is not North Korean through language analysis because even if the applicant was North Korean, she does not have a well-founded fear of persecution in South Korea [the applicant later provided her own reports on language analysis to the Tribunal].

44    After dealing with certain submissions of the agents as to the effect of the Federal Court’s decision, the Tribunal said that it considered that it was open to it to consider Ms M’s nationality, including possible Chinese nationality.

45    From [60]–[154], over 18 pages, the Tribunal criticised the credit and truthfulness of Ms M, concluding at [154] by stating:

On the basis of all of the above, the Tribunal is not satisfied that the applicant is a witness of truth in relation to claims made about herself, and her child.

46    From [157]–[161], the Tribunal discussed the difference in the extent of knowledge at the delegate’s interview and the Tribunal hearing.

47    From [162]–[175], the Tribunal discussed the evidence of Dr Petrov and Dr Lee.

The credibility findings

48    The comprehensiveness of the findings can be seen from [60] of the decision:

In relation to the credibility of the applicant, the Tribunal is not satisfied that the applicant is a credible witness. The Tribunal considers that, on their own, many of the concerns raised about the applicant’s credibility would not be a reason for affirming the decision under review, but that even if some were omitted from consideration, there is still a significant cumulative basis for finding that the applicant is not a truthful witness in relation to her claims or claimed background or the father of her child. The Tribunal has concerns with her inconsistent, not credible and/or changing evidence in relation to family and background details, past events of persecution, and future fears.

49    The first body of asserted defects was in relation to Ms M’s parents. In [62] the Tribunal noted that some precise details were given at the hearing about her father: his job; his date of birth (which she had put in her visa application); and a precise location of his birth.

50    The first asserted inconsistency at [64] was between her father being born in China and what was on the application form. As I have shown, there was no such inconsistency. The second inconsistency was the giving of the detail of the father’s place of birth, when at the Federal Magistrates Court hearing she had given the evidence that I have recited above. The Tribunal said the following at [66]–[68]:

At the first hearing, the Tribunal put to the applicant its concern that, if the detail she provided about her father’s precise place of birth at the Tribunal hearing was true, then she would not have said to the FMC that she was not quite sure where he was born. In response, the applicant said that she had told the FMC where her father was born.

The Tribunal put to the applicant that it was reading from the transcript, and the transcript did not record that she had said that her father had been born in [Location 1]. The applicant then said she “thinks” that she said that, and since she was young she has been very well aware of where [her] father was born. The Tribunal put to her that if this was the case, it would have thought she would have told the FMC this when giving her evidence. She responded that she thinks that she did, and she knows very well where her father was born.

The relevant information was put to the applicant after the first hearing pursuant to s.424A of the Act. She responded that she had said that her father was/is a North Korean citizen at birth because that is where he lived. The Tribunal does not find this to be a persuasive explanation for saying to the FMC that she had “heard” that he was born in China but she was unsure where he was born, given her evidence to the Tribunal that she had known ever since she was a child that he was Chinese at birth, that he was born at a precise, known location in China, and she had suffered discrimination at school for a long period because her father was Chinese. The Tribunal considers that this changing evidence undermines the applicant’s credibility and her claims about where her father was born.

51    The only change was greater detail as to the place of birth of the father. She had always said that he was born in China. On one occasion, at a formal and perhaps intimidating court hearing, she had been unsure. The greater detail may call for human explanation, but there was no changing of evidence as to the country of birth of her father.

52    At [69]–[72], the Tribunal made much of Ms M’s application form, as follows:

Further, the Tribunal was also concerned with the inconsistency in the applicant’s application forms about her father’s place of birth. As noted above, she had claimed in her forms that her father was a North Korean citizen by birth. Elsewhere in the form however she claimed that he had been born in China. As noted above, when the Tribunal put to the applicant at the first hearing that she had claimed that her father was a North Korean citizen by birth, she had responded that he was born in China. The Tribunal put to the applicant that if this was the case, it did not make sense that she claimed in her form that he was a North Korean citizen at birth. She said that she thinks that is just a mistake in the document and she has never said that and she does not know English and she only knows the North Korean language. The Tribunal noted that, according to the form, her application form had been translated for her, using an interpreter (and she was legally represented). In response she said that it was just incorrectly stated, he was born in China so he could not have been born in North Korea.

The s.424A response also suggested that the reference in the application form to the applicant’s father being a North Korean citizen by birth was an error that the agent did not pick up. It was stated to be the interpreter’s “fault” (although it is not said that the applicant never said this to the interpreter). The Tribunal accepts that mistakes can be made, but having regard to the contradictory assertion made by the applicant below, it is not prepared to accept that the different evidence provided by the applicant was a mistake as claimed.

Further, the Tribunal was concerned with the assertion by the applicant in her oral evidence to the Tribunal and her written s.424A response that the claim in the application form that the applicant’s father was a North Korean citizen at birth was an error. This is because her explanation is inconsistent with her evidence at the FMC:

Mr Godwin: In your application form you said that your father had North Korean citizenship by birth, why did you say that?

The interpreter: I wrote it that way hoping that Australian government would help me if I write it that way.

That evidence indicates that, given her claim to the Tribunal that she has always known her father was Chinese, she intentionally, falsely, claimed that her father was a North Korean citizen at birth in her application form in order to obtain a beneficial immigration outcome. The Tribunal put its concern at the first hearing with her inconsistent reasons for claiming that her father was a North Korean citizen by birth. In response, she said it is genuine that her father was born in China. The Tribunal did not consider this to be a persuasive explanation for her inconsistent evidence. Relevant information was also put in the s.424A letter and she did not respond to this other than to assert that her claim that her father was a North Korean citizen at birth was an error; she again did not offer an explanation for her inconsistent reasons for claiming that her father was a North Korean citizen at birth, nor in particular why she told the FMC that she had made (what she claimed was) false claims about her father’s citizenship at birth. The Tribunal considers that these matters undermine her credibility and her claims about the birthplace and provenance of her father.

53    I find the treatment of this whole topic puzzling and troubling. The application form was filled out with information that clearly stated her father was born in China, but had “by birth” “North Korean” citizenship. She did not want to put that her father was a citizen of China: understandably so. She knew him to be North Korean, he having returned to North Korea. That she put “by birth” hardly matters. It can be seen to be an obvious error. The DPR of Korea did not exist in 1938. He had returned to North Korea. To assert that all this confusion reflects on her credit is, with respect, absurd. That is not to say that a question might be asked how she recalled the detail of the place of birth of her father, if she was lacking in sureness of the topic in 2012 in the Federal Magistrates Court.

54    From [73], the Tribunal doubted Ms M’s fears while living in China given her father had family there. At [74], the Tribunal said:

Given her significant connections, the Tribunal asked why she did not make use of her various sources of assistance over these eight years to make any enquiries as to whether she could be registered as a Chinese citizen through having a Chinese father. The Tribunal put to her that it would have been reasonable for her to have thought about this option, during her eight years in China, and considering her contacts and resourcefulness, she could have made efforts to ascertain whether she was entitled to Chinese citizenship. In response, the applicant said that she had not thought about this because she was born in North Korea. The Tribunal considered it to be highly unlikely that she would not have turned her mind to the possibility of making enquiries about whether she had any rights based on her father being Chinese, given her claimed difficult circumstances and her resourcefulness in finding people to assist her (and her claim that she had relatives of her father who were living in China). The Tribunal considers that this undermines her credibility and claims.

55    Nowhere did Ms M accept that her father was Chinese or of Chinese nationality or citizenship. He was born there. He had family there. He had returned to North Korea. If she was North Korean, she faced the risk of repatriation to North Korea. Understandably this concerned her. To say this undermines her credibility is not reasoned nor founded on evidence. There was no basis to think, or that she could think, she could be registered as a Chinese citizen.

56    The topic continued at [75]–[76]:

The Tribunal had a further concern when she then changed her evidence from saying she had not thought about this, and it had not occurred to her at all, to saying that, anyway, the Chinese authorities do not give citizenship to persons born in North Korea. The Tribunal put to her that this indicated that this assertion indicates that she had thought about it; further, if this was her view, she would have told the Tribunal this when first asked. In response she said it is her opinion she would not be given citizenship. The Tribunal is not satisfied that this explains her changing evidence, and her failure to make enquiries about any claim to Chinese citizenship though her father, given her resources and her desire to vastly improve her dire situation over an eight year period.

The Tribunal was concerned that the applicant gave inconsistent and not credible evidence concerning her father being born in China and whether or not she had considered any rights this may have given her. The Tribunal considers that the above undermines her credibility and claims.

(Emphasis in original.)

57    The distinction made in [75] does not form the basis for any coherent or rational comment on Ms M’s credit. She says she did not consider enquiring about Chinese citizenship – a matter entirely understandable if her father had returned to North Korea; but said from her knowledge that she would not have been entitled to it. It does not show, in any way, that she had likely thought about it previously. To call this changing evidence is very difficult to grasp. To say that it undermines her credibility appears to lack a reasonable foundation.

58    The Tribunal also expressed concern about Ms M’s ability to give a precise place of birth of her mother in North Korea when her evidence in the Federal Magistrates Court lacked certainty or precision.

59    At [80]–[85] the Tribunal turned to a perceived inability to explain matters in her statement. The first matter was an inability to expand on human rights in South Korea. The complaints as to this matter, with respect, lack realistic coherence; the inconsistences are more apparent than real; and, when the relevant transcript is examined, come as much out of the stilted and difficult questioning as any other source.

60    Then from [86]–[91] the Tribunal dealt with evidence about approaching the South Korean Embassy when she was in China. The paragraphs really do not disclose much inconsistency at all. From a common-sense viewpoint, it does not seem unreasonable for a North Korean in China to be hesitant about going to the South Korean Embassy to enquire about emigration. The so-called inconsistency between 2006 and 2007 in a recollection years later could be of no moment. I am left troubled by this part of the decision.

61    From [92]–[96] the Tribunal dealt with what was said to be “changing and inconsistent evidence” about her circumstances when she arrived in China. It can be accepted that there were perceived inconsistencies, many over small matters.

62    At [97]–[101] the Tribunal found inconsistencies in her evidence about attending church in China. With respect, the matters referred to do not strike one as revealing of lack of truthfulness.

63    At [102]–[106] the Tribunal discussed the somewhat confused evidence (reflected in the confused questioning in the transcript) about whether the members of the congregation of the church in China would have known she was North Korean, in the light of Dr Petrov’s evidence about her identifiable language. The recounting of the matters in the decision does not reveal true inconsistency, nor matters that would objectively strike at Ms M’s truthfulness.

64    At [107]–[109] the Tribunal turned to the father of Master M. The Tribunal appears to use her evidence that she assumed he was South Korean, but that he did not know she was North Korean as objective evidence that she could not be detected as a North Korean. To the extent that this conclusion, derived from her somewhat confused evidence, was to be employed as outweighing expert evidence tendered, that approach is surprising and concerning.

65    The matter was taken further at [110]–[114] where the question of what she thought about people recognising her as North Korean, what she said or did not say to people and in what circumstances, what other people such as the pastor said, and Dr Petrov’s and Dr Lee’s reports are mixed together to form a skein of inconsistency, which does not really exist, damaging to her credit. Once again the approach is concerning.

66    At [115]–[128] the Tribunal discussed Ms M’s asserted lack of knowledge at the delegate’s interview when compared with later knowledge. The Tribunal took up the topics that were recounted in the delegate’s decision about North Korea: compulsory youth organisations, indoctrination, the Youth Pioneer Corps, a particular book in the school syllabus, and the Ten Principles. It can be accepted that the investigation and testing of knowledge of North Korean life was central to the task of the Tribunal. The Tribunal stated the following at [128]–[129]:

The Tribunal has taken into account the applicant’s subsequent evidence at the second hearing (discussed later) about her knowledge of other matters relevant to North Korea as well as the descriptions of her knowledge of North Korea by the experts (subsequent to the delegate’s interview); this does not however overcome the Tribunal’s concerns with the applicant’s lack of knowledge of a range of matters that she was given the opportunity to talk about at the delegate’s interview in November 2015. The Tribunal considers that this undermines her claim to have grown up and lived and worked in North Korea, and indicates that she has not been truthful about her background.

The Tribunal is conscious that matters of knowledge are subject to the subtleties of interpretation and the questions asked. The applicant did not however provide evidence to the Tribunal (for example from the interview recording) showing that her evidence had been misconstrued or wrongly interpreted. In the circumstances, and having regard to the other concerns, the Tribunal is not satisfied that her lack of knowledge is explained by interpretation errors. The Tribunal considers that the above shows a lack of knowledge by the applicant of some matters which could otherwise support a claim that she had been born and raised in North Korea, and that this undermines her credibility and claims.

67    These matters made the reports of Dr Petrov and Dr Lee central to the ultimate decision on the matter.

68    At [130]–[137] the Tribunal turned to what was described as Ms M’s “changing evidence about her Chinese language ability, depending on the questions she was responding to.” At [130]–[131] the Tribunal stated:

Ninthly, the Tribunal was concerned that the applicant gave changing evidence about her Chinese language ability, depending on the questions she was responding to. The support letter from Dr Petrov dated 22 December 2016 stated that the applicant had an “excellent knowledge of Mandarin” when he spoke with her, for 20 minutes, on 20 December 2016. However, at the second hearing, when it appeared that she was suggesting that she can’t read or write Chinese, the Tribunal asked for confirmation of this and she said, that is true, “I don’t know Chinese at all”. This appeared to undermine the support letter from the expert she relied upon.

The Tribunal put to her that it was difficult to understand how Dr Petrov could say that she had “excellent Mandarin”. She then said she had not met Dr Petrov. It was only when the Tribunal explained that according to his letter he had had a conversation with her and was her supporting expert that she changed her evidence and said that she can speak in Chinese, but “not the details”. When the Tribunal asked what that meant, she said she can’t say difficult things. The Tribunal noted this appeared different to Dr Petrov’s claim of her “excellent knowledge of Mandarin”. The Tribunal considers that her changing evidence undermines her credibility and the support letter.

(Emphasis in original.)

69    Ms M had stated in her application that she spoke Mandarin, but did not read or write Chinese. That is consistent with what she later said and with what Dr Petrov stated. The asserted inconsistency is developed in [132]. When one examines the conclusion of inconsistency, it turns on an unspecified ability to read some signs in China. This is hardly inconsistent with not being able to read or write Chinese, but being able to speak Mandarin. The matters raised as important in [133]–[135] of the decision are deeply unpersuasive of a lack of credibility. This is so, in particular, because it has not been demonstrated, contrary to what is stated at [136], that Ms M changed her evidence about her Chinese language ability.

70    At [138]–[151] the Tribunal discussed what is said to be inconsistent and changing evidence about the father of Master M. This material included asserted statements to the Department by Mr N that he was the father. The whole body of evidence was confused. Mr N later denied his paternity of Master N. It is difficult really to make too much of this, given its peripheral relevance to the central question of Ms M’s identity and credibility. It is difficult to understand why it detained the Tribunal for so long.

71    Finally at [152]–[153] the Tribunal said Ms M had not been truthful about her work history. The matters relied on are puzzling. She had a right to work and eligibility for a Medicare card. Yet her evidence seemed founded on her own understanding that she could not work. Such may reflect on her own confusion of her legal status; it hardly evokes a conclusion of untruthfulness.

72    The Tribunal expressed concern (at [157]) that Ms M may have subsequently to the delegate’s interview acquired knowledge to the level considered to be of a standard referred to in the expert reports. Then at [163]–[166] the Tribunal refers to Dr Lee’s report. At [164]–[166] the Tribunal states as follows:

The Tribunal notes that the applicant had over one year from the time of the delegate’s interview on 16 November 2015 (and decision on 30 November 2015 where she was found not to be North Korean) and her interviews with her experts (Dr Lee on 20 December 2016 and Dr Petrov on 20 December 2016) to gain knowledge. It has recorded, above, concerns with her evidence showing a lack of knowledge of some matters at interview compared with her good knowledge of North Korean matters one year later (with the experts), as well as with her changing and unreliable evidence about her accent and whether or not she could be recognised as a North Korean, both of which the Tribunal considered undermined the opinions of the experts and the pastor that she is identifiable as a North Korean. Concerning the opinion of Dr Lee, as noted above, the Tribunal was also concerned specifically with her Youth Pioneer Corps evidence at interview.

The Tribunal also considers that Dr Lee also provided an important qualification to his opinion of the applicant’s provenance. He stated that she would not have been able to answer correctly all the questions he asked “if [the applicant] was not from North Korea, or ethnic Korean who lives in China” and “therefore I am highly certain that [she is] from North Korea” (emphasis added). The Tribunal put to the applicant at the second hearing that this report suggests that her ability to answer questions about North Korea could indicate that she is a Chinese citizen of Korean ethnicity (she denied this and said she is North Korean).

In the circumstances, the Tribunal does not consider that the letter of Dr Lee is persuasive evidence that the applicant was born and raised in North Korea as claimed. It also does not overcome the concerns of the Tribunal with the applicant’s credibility. His letter leaves open that she may be a Chinese citizen of Korean ethnicity.

(Emphasis in original and footnotes omitted.)

73    The importance of the (mis)understanding of Dr Lee’s opinion can be seen in [165]. It was a matter of importance that was put to Ms M at the hearing. The (mis)understanding allowed the Tribunal to approach Ms M’s whole evidence with the confidence that all her evidence of familiarity with North Korea could be explained by her not being North Korean, but someone living in China of Korean ethnicity.

74    At [167]–[171], the Tribunal dealt with Dr Petrov’s evidence. One of the reasons for dismissing or giving little weight to Dr Petrov’s evidence was the (mis)understanding of Dr Lee’s report.

75    Also relevant to giving little weight to Dr Petrov’s and Dr Lee’s reports (other than the (mis)understanding of Dr Lee’s report) was the view that Ms M had learned of matters since the delegate’s hearing; in effect, both experts had been fooled by her preparing for their interviews. Given the way they both expressed themselves, it is difficult to see how this could not be a necessary question for them. But that question itself was bound up with the (mis)understanding of Dr Lee’s report, as revealed by [174] of the decision of the Tribunal which uses the report of Dr Lee in fact to support the conclusion that she is not North Korean (a use utterly contrary to the import of his report (and Dr Petrov’s report)):

The Tribunal has considered that the evidence of both experts can support a finding that the applicant is of Korean ethnicity, but the concerns with her evidence mean that the Tribunal is not satisfied that she was born and raised in North Korea as claimed.

76    Later in [174] of the decision, the Tribunal referred to country information which was seen as consistent with the (mis)understanding of Dr Lee’s report. The country information concerned language of Koreans in China:

In this regard the Tribunal has also taken into account country information about the language of Koreans in China, as well as the history of Koreans in China:

Language of Koreans in China

Most ethnic Koreans in China speak Mandarin Chinese and many also speak fluent Korean as their mother tongue. Most Chinese of Korean descent have ancestral roots and family ties in the Hamgyong region of North Korea and speak the Hamgyong dialect of Korean according to North Korean conventions.

Koreans use one set of words when speaking to an older person and another set of words when speaking to a younger person. The same is true when a person of high status converses with a person of low status. Korean also use one set of words when speaking to members of their family members and a different set when speaking to outsiders. There is even a whole set of words reserved for speaking to Korean royalty. Different regions of Korea have different dialects with distinct pronunciation and vocabulary. Hangul, the Korea's phonetic alphabet, is perhaps the world's clearest and most logical alphabet. It is consists of 24 phonetic symbols and 40 elements that are linked with sounds in the Korean language. Unlike English, there are no tricky spellings or unclear pronunciations.

History of Koreans in China

The ancestors of the Koreans in China today are Koreans who settled in northeast China from the Korean Peninsula, which is south of northeast China to the south of the Yalu and Tumen Rivers. The earliest Korean settlers can be traced back to more than 300 years ago. Many emigrated from Korea during the 19th century, and again during the Japanese Occupation in the early 20th century. In the 1860s, a series of natural disasters struck Korea, leading to deadly famines. Along with the Qing dynasty's loosening of border controls and acceptance of external migration into Northeast China, this pushed many Koreans to migrate. By 1894, an estimated 34,000 Koreans lived in China, with numbers increasing to 109,500 in 1910. [Source: ~ Wikipedia]

Koreans in both China and Korea suffered during the Japanese occupation of northeast China and Korea. They were forced to speak the Japanese language and adopt Japanese surnames and some were put to work as forced labor in mines and factories. After the Japanese were forced out of Korea and China in 1945, there was a resurgence of cultural awareness among the Koreans. Newspapers in the Korean language sprang up, including the Jilin Daily (later renamed the Yanbian Daily), Heilongjiang Daily and the Liaoning Daily. In 1947, the Yanbian Korean Publishing House was founded in Yanji, and the Yanbian People's Radio went on the air. Special Korean programs are also aired by the Central People's Broadcasting Station and the Heilongjiang People's Broadcasting Station. [Source: China.org]

(Footnotes omitted.)

77    Such country information would be of added force if one understood Dr Lee to be saying that which the Tribunal thought.

78    The findings of the Tribunal about Ms M and her credibility were expressed at [206]–[214]. She was not believed in any material respect: [206]. The Tribunal did not accept that she was North Korean, finding that North Korea was not her country of nationality or her place of former habitual residence. At [207]–[208] the Tribunal stated:

The Tribunal finds that North Korea is not the applicant’s country of nationality or her place of former habitual residence. Given the lack of credible information before it, the Tribunal is not able to make a positive finding on the applicant’s nationality, and because she has made claims that she faces harm because of her North Korean nationality, this is not a case where it is necessary for the Tribunal to do so.

The Tribunal notes that the applicant’s claims in relation to South Korea and China are predicated upon her being a North Korean national, which the Tribunal does not accept. If the applicant were a citizen from either of these countries, South Korea or China (which is denied by the applicant), the Tribunal would not be satisfied that on the evidence before it, she faces a real chance of serious harm or a real risk of significant harm if she returned (with the second applicant) to either of these countries. Further, she has not claimed to be stateless, and the Tribunal does not accept that she is.

79    As to the possibility of Ms M being Chinese of Korean ethnicity the Tribunal said the following at [210]–[213]:

At the second hearing, the Tribunal put to the applicant that it may not be satisfied as to her claims about her nationality as North Korean. It was concerned that she could be a Chinese citizen of ethnic Korean background. The Tribunal put to the applicant if this was the case, the Tribunal has considered the DFAT Report and it would appear that she would return with her child to China (who would appear to be a Chinese citizen born to a Chinese parent overseas having regard to Article 5 of the Nationality Law); the DFAT Report did not indicate that there would be problems upon return for ethnic Korean Chinese citizens, and although the report indicates that, upon return, persons may be asked questions about what they were doing in Australia, it would appear plausible that the applicant would say that she had been working (the Tribunal considers it difficult to accept that she has not worked at all in Australia) and trying to raise her child here. The applicant did not agree.

The Tribunal is not satisfied that, even if the applicant is a Chinese national of Korean ethnicity, she faces a real chance of serious harm or a real risk of significant harm if she was returned (with the second applicant) to China. However, the applicant has denied that she is a Chinese citizen of Korean ethnicity. Although the evidence may seem to point to the applicant possibly being a Chinese citizen of Korean ethnicity, the Tribunal is unable to make a positive finding in this regard.

The Tribunal has found a lack of credible information as to the applicant’s nationality.

Therefore, for the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.

(Footnotes omitted.)

80    As to the possible operations of s 36(2)(aa) the Tribunal stated at [214]:

Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal does not accept that the applicant is a national of North Korea or a habitual resident of North Korea. Therefore the Tribunal does not accept that North Korea is the applicant’s “receiving country” for the purposes of s.36(2)(aa). The applicant has only made claims in relation to North Korea (by way of nationality). Therefore the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that she will suffer significant harm. Therefore the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

81    It is unnecessary to deal with Master M.

The decision concerning Mr N

82    The decision was some 37 pages and 165 paragraphs of single spacing.

83    The decision began with a summary of the history of the matter. At [27]–[29] the Tribunal summarised the written claims of Mr N, and the submissions put on his behalf.

84    At [31] the Tribunal referred to the initial interview between Mr N and Departmental officers at which the following was noted:

•    He provided his parents’ names and dates of birth and death. He recalls having documents relating to his identity in the past, but these were lost or thrown away.

•    He worked in various towns in China between 2003 and 2011. He was returned to North Korea in 2005, and then escaped and returned to China. He paid a person 64,000RMB to help him gain entry to Australia using a Chinese passport at the airport.

•    He first presented to the Department on 30 March 2011, having been driven there. He was told to enter the building and just say he was North Korean. He had no identity documents when he presented. It was noted that he had a hearing aid and he said that he had been assaulted in North Korea. He is not seeing any doctors to treat his hearing loss. He gets some flashbacks when he is being asked questions.

85    At [33], the Tribunal referred to the issue of the paternity of Master N:

In addition to the assertion referred to in paragraph 20. above, in the letter of 16 November 2015 the agent asserted that more than one officer of the Department had claimed, on a number of occasions, that this applicant and Ms [M] (the other applicant whose case was heard at the same time by the FMC and the Federal Court) know each other, and that this applicant is the father of Ms [M]’s baby. It was submitted by the agent that the only characteristic that these two applicants have in common is that they are represented by the same firm. The agent also submitted that the assumptions about the relationship are absurd, false and baseless.

86    From [34]–[36] the Tribunal referred to the interview with the delegate; and from [37]–[39] to the decision of the delegate. At [37] the Tribunal stated:

The delegate noted that although the applicant showed a degree of knowledge of some aspects of North Korea, information can be learned for the purposes of a protection visa interview and the delegate was not satisfied on the evidence presented that the applicant was a North Korean citizen (nor that his claims in that regard were true).

87    The delegate had recorded the following about the knowledge of Mr N:

•    Due to the claim that the applicant is North Korean (and the applicant not having any proof of this) I explored this matter, in part, with the following that includes knowledge of North Korea and life in North Korea:

The applicant advised that he had been a member of the Young Pioneer Corps and later the Kim II Sung Socialist Youth League.

The applicant discussed what occurred in gym classes when he was a youth.

The applicant advised what food he received when at kindergarten and the associated praise that they had to give to the leader.

The applicant discussed self-criticism sessions.

In relation to the Ten Principles for the Establishment of the One-Ideology System the applicant at first advised that he could not remember them. (The regulations reign supreme over the everyday lives of the North Korean people, proposed by Kim Young Joo in 1967 and officially announced by Kim Jong Il in 1974) The applicant later spoke in general about the principles.

The applicant was asked how citizens of the United States are depicted in North Korean movies and posters and he advised with large noses.

The applicant was not aware of the Flower Girl, a revolutionary opera allegedly penned by Kim Il-Sung that was turned into a movie, the most popular one in North Korea. However the applicant spoke of other songs and movies.

(Emphasis in original.)

88    It was in this context that the delegate stated what is set out at [9] above.

89    From [61] the Tribunal expressed concerns about the credibility of Mr N. The first subject concerned the asserted inconsistent evidence about his parents and grandparents. The applicant’s visa application documents, filled in by his advisor, stated that his father was born in North Korea. The place of birth of his father became an issue by reason of the question of the initial application of ss 91N and 91P. Before the Federal Magistrates Court he said that he was not sure whether he was born in China or North Korea. The Tribunal described the evidence before it on this subject at [65]–[67]:

The Tribunal was also concerned that while the applicant’s initial evidence to the Tribunal about his father’s place of birth was also vague, his evidence then changed and became very specific: when asked by the Tribunal, he first said that his father’s hometown was in China, but he doesn’t know where in China and he is guessing his father is Chinese. He said that his grandfather was North Korean but had left North Korea during Japanese occupation to go to China because the conditions at that time were so bad in North Korea. When the Tribunal asked why he thinks his father was born in China, he said because when he was growing up he hears [sic] that his father left Palrogun in China in 1949 for North Korea where he joined the North Korean Army. After he told the Tribunal that his father had served in the North Korean Army, the Tribunal asked him how could he serve in the North Korean Army if he was Chinese, and he said that is a good question; after the applicant left middle school and he was working, his father told him that ethnic Korean Chinese born in Palrogun were deployed in the North Korean Army. When the Tribunal sought his confirmation that his father had explained to him that the reason his father could serve in the North Korean Army was because his father was an ethnic Korean Chinese born in Palrogun, China, the applicant agreed.

The Tribunal put to the applicant however that his current evidence that his father was born in Palrogun, China, was inconsistent with his written materials where he had specified his father was North Korean, born in North Korea. In response the applicant said that his grand(father) was born in North Korea, so that is his father’s hometown however even now he is not sure about his father’s hometown. The Tribunal put to the applicant that it did not understand his explanation, given that he had just told the Tribunal that he had had a discussion with his father whereby his father confirmed that he was born in Palrogun, China. The Tribunal again gave the applicant further opportunity to explain, asking why he would have written that his father was born in North Korea if he was born in China. His responses included silence; and that when he (the applicant) was born his father had North Korean nationality and after he graduated from school he thought that his father was North Korean. The Tribunal put to him that this was different to his earlier evidence to the Tribunal that after he graduated from school he knew his father was Chinese-born. He said rather than China-born, he just knew that his father left Palrogun in China to come to North Korea. The Tribunal put to the applicant that this was different to his earlier evidence that he knew from his discussions with his father that his father was ethnic Korean born in China. In this regard the Tribunal said it was trying to understand why he wrote in his forms that his father was born in North Korea. He responded that because he was North Korean he thought that his father was also North Korean and in North Korea there is not anyone who is born overseas. The Tribunal asked what he meant by saying that no one in North Korea was born overseas, and he then changed his evidence and said that he is not saying there is no one born overseas in North Korea but they simply don’t know about that and it doesn’t come to their mind at all.

The Tribunal was concerned that the applicant’s changing evidence and explanations undermined his credibility and claims.

90    The Tribunal also expressed concern about what was said to be inconsistent evidence as to why he had claimed in his application that his father was born in North Korea. At [70]–[71] the Tribunal stated:

Secondly, the Tribunal was concerned with the applicant’s inconsistent evidence as to the reason why he claimed in his written materials that his father was born in North Korea. His oral evidence at the Tribunal hearing, when offering explanations for this, suggested that he had written that his father was born in North Korea because he was acting honestly (he believed he was a North Korean citizen). The Tribunal sought confirmation of this and he agreed. This however was inconsistent with what he told the FMC in his evidence:

MR McARDLE: … Why did you say your parents were born in North Korea?

THE INTERPRETER: When I first went to the immigration department I feared that I might be sent to China if I say that my parents were born in China.

Thus, the evidence to the FMC indicated that he had deliberately given false information in his written materials about his parents’ place of birth. The Tribunal put to the applicant at hearing that the explanation he gave to the FMC (that he deliberately chose to give false information about his parents’ place of birth in his written forms) was inconsistent with his numerous explanations to the Tribunal (above) that his claims in his written materials had been made with honest intentions. In response, he said that as he was born in North Korea and his parents were North Korean citizens he thought they were North Koreans and he does not think he said what he is recorded as saying at the FMC.

91    It might be open to doubt whether these matters truly tell against the underlying issue of Mr N’s claims to be North Korean.

92    At [73]–[75] the Tribunal referred to Mr N’s knowledge of his grandfather:

Thirdly, the applicant also gave inconsistent evidence about his knowledge of his grandfather. As noted above, he told the Tribunal specific information about his father’s father, namely that his grandfather was North Korean but had left North Korea during Japanese occupation to go to China because conditions were bad. The applicant’s evidence in the FMC, set out below, however, was:

MR GODWIN: Did you ever meet your grandfather on your father’s side?

THE INTERPRETER: No, never.

MR GODWIN: Do you know where your grandfather on your father’s side lived?

THE INTERPRETER: I don’t know.

MR GODWIN: Did you never talk to your parents about your grandparents?

THE INTERPRETER: Because we were just busy in every day life – North Koreans do not talk about the families and things like that at home.

The Tribunal was concerned that the applicant gave different evidence in different proceedings; telling the FMC that North Koreans do not talk about families (thus explaining his lack of knowledge about his grandparents), but telling the Tribunal details about his grandfather (and about his father’s history having been born in Palrogan in China). This was put to the applicant at hearing pursuant to s.424A of the Act. In response, he said that at the time when he was responding to the question about his grandparents, he didn’t know where their hometown was or other details, and although he had heard that his grandfather had lived in China, he just said to the FMC that he didn’t know. The applicant’s written s.424A response was the same as to the other information (referred to above) including a general assertion that there may have been a mistake. It was also stated in response that he has consistently known his parents lived in North Korea and it is where he grew up with them and where they died; the inconsistent evidence is “in no way” a contradiction of his nationality.

The applicant did not suggest that he had somehow learned information about his family between the time of giving evidence to the FMC and the Tribunal hearing. The Tribunal does not find the explanations to be persuasive reasons as to whether he did or did not discuss (and know) things about his family. The Tribunal considers his evidence and explanations undermine his credibility and his claims about his family background.

93    At [76]–[79] the Tribunal referred to evidence about where his mother was born:

Fourthly, the Tribunal was concerned that he gave inconsistent evidence about his knowledge of where his mother was born.

When the applicant gave evidence before the FMC on 30 October 2012, he asserted he did not know where in North Korea his mother was born:

MR McARDLE: And where was your mother born?

THE INTERPRETER: As far as I know, my mother was born in North Korea.

MR McARDLE: Do you know where your mother was born?

THE INTERPRETER: Not quite sure.

This, however, was inconsistent with the precise location of birth he provided to the Tribunal, namely Raju-Ri Kimhyungjic-goon in Yang Gang province. When the Tribunal asked him how he knew this was her place of birth, he said that he knows; this is his hometown.

The Tribunal was concerned that these responses were different; when this was put to him at hearing, he agreed he had given these different responses. When the Tribunal asked him to explain why, he said he doesn’t know: even now it is his first time in these proceedings, and going to the court makes him very nervous. The Tribunal also put this to the applicant pursuant to s.424A of the Act after the hearing. In response, he said that he has consistently known his parents in North Korea and it is where he grew up with them and where they died. The inconsistent evidence is “in no way” a contradiction of his nationality. Further this may be a “mistake” (as discussed further below). The Tribunal has not found these to be persuasive explanations for the changing evidence as to where his mother was born, which it considers undermines his credibility and claims.

(Footnotes omitted.)

94    At [80]–[84] the Tribunal dealt with his evidence of when he was first exposed to the Chinese language. I will not set out the whole of these paragraphs. The questions of “exposure” (with all the ambiguity of such an expression) to Chinese and whether his father sometimes spoke to him in Chinese do not impress one as significant issues upon which to base serious credit findings.

95    From [85]–[94] the Tribunal dealt with a number of small inconsistencies in his evidence, including the issue of the paternity of Master M and what Mr N is supposed to have told Department officers.

96    From [95]–[105] the Tribunal dealt at length with his knowledge of North Korea, which the Tribunal found inadequate.

97    It was in this context that one comes to the opinions of Dr Lee and Dr Petrov at [121]–[124] and [125]–[132]. Once again the Tribunal noted that the applicant had a year to learn matter after the delegate’s interview and before speaking with Dr Lee and Dr Petrov.

98    The (mis)understanding of Dr Lee’s report played a similarly important part in this decision as it did in that of Ms M. At [123]–[124] the Tribunal stated:

The Tribunal also considers that Dr Lee also provided an important qualification to his opinion of the applicant’s provenance. He stated that he would not have been able to answer correctly to all the questions he asked “if [the applicant] was not from North Korea, or ethnic Korean who lives in China” and “therefore I am highly certain that [he is] from North Korea” (emphasis added). The applicant’s own expert report suggests that his ability to answer questions about North Korea could indicate that he is a Chinese citizen of Korean ethnicity (he has denied this and said he is North Korean).

In the circumstances, the Tribunal does not consider that the letter of Dr Lee is persuasive evidence that the applicant was born and raised in North Korea as claimed. It also does not overcome the concerns of the Tribunal with the applicant’s credibility. His letter leaves open that the applicant may be a Chinese citizen of Korean ethnicity.

(Emphasis in original.)

99    The assessment of Dr Petrov’s evidence was likewise affected by the (mis)understanding of Dr Lee’s report. At [129]:

The Tribunal also takes into account the assertion of Dr Lee to the effect that an ethnic Korean who lived in China would be able to answer questions in the way in which the applicant did. In the circumstances, while giving some weight to the opinion of Dr Petrov who spoke to the applicant for 20 minutes, who noted that the applicant counted like a Chinese Korean (which could be because he spent time there), the Tribunal considers that Dr Petrov’s opinion does not overcome the concerns of the Tribunal that the applicant has not been telling the truth about his background, and the Tribunal considers that although he is of Korean ethnicity, this does not mean that he is a North Korean defector as claimed.

100    The Tribunal at [158] comprehensively disbelieved Mr N and his claims. It did not accept that he was North Korean, stating at [158]–[160]:

The Tribunal does not accept that the applicant is a witness of truth in relation to the majority of the matters relevant to his claims and background. His most significant claim is that he was born and raised in North Korea; the Tribunal is not satisfied as to this claim. It does not accept that he has been truthful in relation to his place of birth, where he was raised, his parents’ and grandfather’s places of birth and where they were raised. The Tribunal does not accept that he lived and worked in North Korea, nor that he escaped North Korea, nor that he was ever held captive in China nor that he ever returned to North Korea and was detained and escaped, nor that he remained in China in fear and unlawfully. For the reasons set out above, the Tribunal is not satisfied that he is a North Korean citizen or national nor that North Korea is his place of former habitual residence.

The Tribunal is prepared to accept that he is ethnic Korean, and that he resided in China for a significant period of time. The applicant said that he arrived in Australia from China, holding a Chinese passport, in March 2011. He claims that he no longer has the passport, and that it was a false passport as he does not suggest that he is a Chinese citizen.

The Tribunal finds that North Korea is not the applicant’s country of nationality or his place of former habitual residence. Given the lack of credible information before it, the Tribunal is not able to make a positive finding on the applicant’s nationality, and because he has made claims that he faces harm because of his North Korean nationality, this is not a case where it is necessary for the Tribunal to do so.

(Footnotes omitted.)

101    As to the consequences of this the Tribunal dealt with the possibilities at [161]–[165]:

The Tribunal notes that the applicant’s claims in relation to South Korea and China are predicated upon him being a North Korean national, which the Tribunal does not accept. If the applicant were a citizen from either of these countries (which is denied by the applicant), the Tribunal would not be satisfied that, on the evidence before it, he faces a real chance of serious harm or a real risk of significant harm if he returned to either of these countries. Further, he has not claimed to be stateless, and the Tribunal does not accept that he is.

Although the evidence may seem to point to the applicant possibly being a Chinese citizen (including his evidence that he arrived on a Chinese passport) of Korean ethnicity, the Tribunal is unable to make a positive finding in this regard.

The Tribunal has found a lack of credible information as to the applicant’s nationality.

Therefore, for the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.

Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal does not accept that the applicant is a national of North Korea or a habitual resident of North Korea. Therefore the Tribunal does not accept that North Korea is the applicant’s “receiving country” for the purposes of s.36(2)(aa). The applicant has only made claims in relation to North Korea (by way of nationality). Therefore the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm. Therefore the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

The claim for apprehended bias in respect of Ms M

102    The test for apprehended bias is whether “a fair-minded lay observer might reasonably apprehend that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] is required to decide”: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at 344 [6]. See also ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35]–[36] and the authorities there cited. A finding of apprehended bias is not to be reached lightly: Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 371. It is an open, and not an empty, mind that must be kept: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at 531 [71]. The apprehension is of a lack of an open mind or prejudgment, not that the case will or may be determined adversely: Barakat v Goritsas (No 2) [2012] NSWCA 36 at [40] (Basten JA, with whom Young JA and Sackville AJA agreed).

103    There was no ground of appeal that the decision was legally unreasonable or illogical by reason of particular attacks on the credit findings: cf Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; 250 FCR 309. Some aspects of the Tribunal’s approach have, nevertheless, caused me concern. It was necessary to consider the credit findings in the context of how the bias claim was put. I have considered whether they reveal, or might reveal, to a reasonable observer, an insistent determination to find fault in the evidence of Ms M. That, however, would verge on an enquiry about, or a finding of, actual bias, a matter not asserted. This approach of examining the reasons in support of an apprehended bias case throws up the difficulties adverted to in Michael Wilson v Nicholls 244 CLR at 446–447. If, as here, it was generally submitted that the credibility findings support a finding of apprehended bias, that should be better the subject of focus of a claim of legal unreasonableness. In Michael Wilson v Nicholls 244 CLR at 446 [67] Gummow A-CJ, Hayne, Crennan and Bell JJ said:

An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” [(2010) 243 FLR 177 at 200 [91]] impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made.

(Emphasis in original.)

104    For these reasons it may be seen to be not permissible to seek to use what I have said about the fact finding to enhance any asserted inappropriate conduct at the hearing. On this basis, the approach in the decision of NADH 214 ALR 264 may not be sound. I note, however, the comments of Chief Justice Kiefel and Justice Gageler (otherwise in dissent) in CNY17 v Minister 375 ALR at 53 [20]:

The question whether conduct has resulted in a breach of the bias rule falls to be determined in light of the totality of the circumstances that exist at the time when that question arises. Where the question arises for determination after the Authority has made a decision on a review, the totality of the circumstances includes the decision and the reasons that the Authority has given for the decision.

(Footnotes omitted.)

and Justice Edelman (otherwise in the majority) at 77 [135] (referring to British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; 242 CLR 283 at 316 [83]):

Apprehended bias must be assessed by reference to all the circumstances existing at the relevant time of enquiry. If apprehended bias is assessed at the conclusion of the hearing, as the appeal in this case requires, then the reasons for decision might reveal matters relevant to the consideration of whether a reasonable apprehension exists. It would be absurd if, on the one hand, remarks made by the decision maker during the course of a hearing could be considered as part of an assessment of the presence of the reasonable apprehension of bias but, on the other hand, remarks at the conclusion of the proceeding could not.

(Footnotes omitted.)

105    Justices Nettle and Gordon in CNY17 v Minister 375 ALR at 64 [68] set out and relied on the passage of the majority in Michael Wilson v Nicholls.

106    The resolution of the views of the three justices in CNY17 v Minister (two in dissent, one in the majority) with the views of the majority in Michael Wilson v Nicholls and two of the justices in the majority in CNY17 v Minister is not straightforward. I will approach the matter on both bases.

107    In Webb v The Queen [1994] HCA 30; 181 CLR 41 at 74, Deane J, who was not dissenting on this point, outlined four overlapping categories of apprehended bias. The appellants’ submissions focused on the second category: cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The appellants referred to both the content of particular questions asked by the Tribunal, as well as the manner in which the questions were asked and the Tribunal member’s overall demeanour, as well as the reasons.

108    After reading the transcript and listening to the recordings of the Tribunal hearings, and also after reading the decision, I am concerned by a number of questions asked by the Member of Ms M. I have already expressed my concerns as to the credit findings, especially as to Ms M.

109    Questions 36–59 of Ms M at the first hearing on 18 October 2017 concerned the identity of the father of Master M and, in particular, his (the father’s) immigration status. Early in this questioning Ms M told the Tribunal that Master M does not have any contact with his father, she met the man three times, and she was not aware of the man’s basis for being in Australia. The Tribunal then, at questions 44, 54, 55 and 57, repeatedly asked Ms M why she did not make enquiries about the man’s immigration status. In response to the first time this question was asked, Ms M stated:

Initially because of my own status here, yeah, I didn’t ask anything about that and he also didn’t know that I came from North Korea … regarding enquiring about his status, yeah, I didn’t know about those things and also no, we didn’t sort of say let’s sort of date or anything so I didn’t ask for him what he was doing and his status and things like that.

I find the insistent questioning in this regard, puzzling and concerning in circumstances where Ms M gave a reasonable answer to the question in the first instance. The insistent questioning proffered answers that would have, understandably, made Ms M feel uncomfortable and left a reasonable person questioning the relevance of the exchange.

110    Towards the end of the first hearing, the Tribunal enquired about Ms M’s claim that she was Christian. The following exchange took place:

Q276    What did you repent about?

A    For me about living day by day meaninglessly. And as to save North Korean people from war as soon as possible.

Q277    I missed that last bit, sorry? To save them from war and something?

A     (INT) As soon as possible.

Q278    You repented about that. How can you repent about that?

A     (INT) That was my wish.

Q279    I’m sorry my question was just about repenting. What did you repent about?

A    (INT) Just to like when I am living my life day to day I didn’t live according to his words and, yeah, I just say yesterday these things happen to me and yesterday I couldn’t attend church. I missed Wednesday’s church service and please forgive me. So I don’t know how to pray very well but, yeah, this is sort of how I do.

Q280    Anything else that you repent?

A    (INT) Just occasionally I scold my child. Yeah, I’m living with my child and sometimes he doesn’t listen to me so I scold him and so when that happens I just, yeah, say, yeah, I did this to the baby and please help me to – just to stay strong.

Q281     So is that – I’m sorry.

A    (INT) So I don’t know how to pray very well but I just pray, you know, whatever comes to my head at the time.

Q282     So is it just things like that, that’s how you repent, is that right? That’s what you repent about?

A    (INT) Yes.

Q283    Because, see, you said that it’s against the teachings to enter into theft, for example.

A    (INT) Yes.

Q284     I guess it would also be in the teachings to be involved in fraud, would you say that? Is it against your Christian teachings to be involved in fraud?

A    (INT) Yes. Yes, they’re all against the teaching.

Q285    So if you had obtained a false – a fraudulent Chinese passport and used it to go through countries, then I’m wondering why you wouldn’t repent about that?

A    (INT) Yeah, that’s against the teachings but I – when I left China I acknowledged my, yeah, mistakes and I was suggest to thinking about what I have been repenting here, so you know, that one didn’t occur to me.

Q286    So, look, another concern that I have is that if the country information is such that people who leave North Korea put their family members at risk, then I think that would be something that you probably, you know, would have repented about? So you said that you’ve breached the law by leaving North Korea and that you’ve put your family members at risk, I’m just wondering why you didn’t say that you repented about that?

A    (INT) The fact that I left North Korea is, yeah, against North Korean law but in North Korea we cannot leave there speaking even a single word freely. I didn’t pray regarding that because North Korean law is terrible law – worst law in the world.

111    The Tribunal returned to the topic of Ms M’s faith during the second hearing. The Tribunal asked a series of questions about Ms M’s relationship with her pastor, who appeared as a witness during the second hearing. In this context, the following exchange occurred:

Q56    So what does the Reverend think about your -you having had a child out of wedlock, have you discussed that with him?.  

A    (INT) I did not understand out of wedlock.

Q57    Without being married.

A    (INT) When I went to see him I was pregnant and because I was in difficult time and she [sic: he] did not ask me much details. He comforted me. Because I was very ashamed of the fact that I was pregnant. Very much shameful.

112    The lines of questioning set out above were, with respect to the Member, hardly appropriate. However, I would not characterise them in the same way as the Tribunal’s conduct in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]–[4]. That said, I would emphasise, as fundamental, what I said in that case at [5]:

The fair treatment, and apparent fair treatment, of an applicant called to give evidence and present arguments in a hearing under the Migration Act 1958 (Cth), s 425(1) involves the recognition of the dignity of the applicant (the subject of the exercise of power) in how the hearing is conducted. That recognition is an inhering element of fairness. Fairness, and its appearance, is (subject to clear statutory qualification, in the light of Parliament’s “assumed respect for justice”: Jarratt v Commissioner of Police (NSW) [2005] HCA 50; 224 CLR 44 at 56-57 [26], and to any impinging Constitutional consideration) an inhering requirement of the exercise of state power.

113    Taking these considerations into account, I do not consider that the transcript of questioning nor the form of the questions would raise in the fair-minded lay observer a belief that the Tribunal member may not be bringing a fair and open mind to bear on her task. Though my reading of the reasons raises some concerns in the stringency and available basis of some of the credit findings I do not consider that they, read with the transcript and having heard the recordings, amount to a demonstration to a fair-minded lay observer that the Tribunal may have not brought a fair and open mind to the task.

114    The appellants’ submissions on apprehended bias also referred to the demeanour of the Tribunal member. In fairness to the Member, apart from the lines of questioning identified above, I do not perceive in the evidence of recordings and transcript any inappropriate behaviour at the hearing.

115    I have considered the affidavit of Ms Ford, and in particular those parts rejected by the primary judge, including Ms Ford’s opinion at [8] that the Member “adopted a demeanour of aggression” towards the appellants. I have also listened to the recording of the hearings. I do not accept that there is sufficient evidence of a demeanour and an attitude that would cause the fair minded lay observer to think that the Tribunal might not be bringing or have brought other than an open mind to bear.

116    The Member was searching in her questions (and sometimes insistent), sometimes sharp in delivery, and to a degree bringing some scepticism to the evidence. Some of the questioning was less than clear and had a capacity to confuse. This is, however, an inquiry into whether apprehended bias was revealed, not a performance review.

117    Much of the evidence in Annexure 3 to Ms Ford’s affidavit was argumentative of the kind of questions asked, effectively a form of submission. I have addressed the nature of the questions asked by the Tribunal above.

118    These conclusions upon the whole of the evidence proffered make it unnecessary to deal with the question of admissibility of the parts of the affidavit of Ms Ford that were rejected. Much of the evidence was assertion and argumentation.

119    If evidence of demeanour and body language and voice is to be led about a Tribunal member’s apparent attitude there may be grounds for its admission, including under s 78 of the Evidence Act: see Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352 at 368–377. The opinion of “aggressive” must be based on what was seen, heard or perceived. The facts from which the impression or opinion was derived may or may not be identified. They should be able to be the subject of some evidence, however much there may be limits of text and expression in giving that evidence. It is probably not necessary that the facts from which the impression or opinion was derived be the subject of the evidence: Lithgow City Council v Jackson 244 CLR at 376 [57]; though the absence of evidence of those facts may make it more difficult to show that the opinion is “based” on perception, and it may affect the weight of the evidence.

120    Here, given the sweeping generality of the affidavit and the absence in Annexure 3 of true primary perceptions, I would not conclude that the primary judge had erred in rejecting the affidavit and Annexure 3, in particular considering s 136 of the Evidence Act and the evidence’s capacity to mislead or confuse. In circumstances where a Tribunal of the character of this is to be said to have so conducted itself as to raise in a hypothetical fair-minded lay observer a legitimate concern of a closed mind and more is sought to be said than what flows from an examination of the recording and transcript, a party should normally identify with clarity what body movements or gestures or non-verbal cues occurred to ground any stated impression or opinion. If the expression of such is not reasonably contemporaneous there may be legitimate concerns about satisfaction of s 78, or about the operation of s 136, of the Evidence Act.

The ground of apprehended bias in respect of Mr N

121    I have listened to the recordings and read the transcript of the hearing. I do not consider that a fair-minded lay observer might think from those that the Tribunal might not bring an open and fair mind to bear on her task. There was a degree of exasperation and frustration in Mr N. I found that understandable, to a degree. Some of the questioning was insistently particular. One example was the almost absurd insistence on the words used by Mr N and his Chinese interrogators in 2005 (12 years earlier) when Mr N gave what appeared to be a reasonable precis of that exchange. This level of insistence led on a number of occasions to exasperation in Mr N and what appeared perhaps to be a quiet anger. With respect, it was justified. Some of the questioning was just confusing; other parts verged on the absurd in their particularity. The questioning about when he considered that he might go to South Korea, about which confident and damaging findings were made in [88] (set out below), was very confused and was not in some respects a proper basis for the conclusion. For instance, the response of Mr N in the third last sentence of [88] of the reasons, rejected in the next sentence, had much to commend it when one examines the transcript.

Intention to travel to South Korea: The Tribunal noted that he had claimed in his statement that he wanted to go to South Korea, and asked the applicant why he had wanted to go to South Korea. In response he said that the Chinese authorities arrest a lot of North Korean escapees and return them to North Korea so he had a fear and he wanted to go to South Korea. The Tribunal noted that he had a fear of North Korean spies in South Korea, so it did not understand why he was prepared to go to South Korea. He then said if the Tribunal is referring to when he was prepared to go to South Korea in 2005, at that time he did not know how many North Korean spies there were in South Korea. It was in 2005 and after that he met some other escapees and he watched the news and learned that there are a lot of spies in South Korea. After learning all that he did not want to go to South Korea in 2005. The Tribunal asked if he was sure that it was in 2005 that he wanted to go to South Korea and he agreed. The Tribunal put to the applicant that his claim in his statement that on a precise date in 2007 ([in] October), he intended to go to South Korea appeared difficult to understand given his evidence that ever since 2005 he was aware of all the North Korean spies in South Korea and did not want to go there. His response was to assert that the Tribunal did not ask him when he wanted to go to South Korea. Given the discussion set out above, the Tribunal does not accept this explanation. The Tribunal considers that his changing evidence undermines his claims and credibility.

122    As with Ms M’s decision, the appeal is not put on the basis of legal unreasonableness by reason of the credit findings. I make these comments to indicate that there were difficulties and problems in the reasoning, at times the making of the Tribunal’s approach and questioning as much as any other possible reason; and to explain perhaps why Mr N became so exasperated. It does not, however, amount to apprehended bias.

Grounds 3 and 4 of the amended notices of appeal

123    Grounds 3 and 4 were in the following terms in each amended notice of appeal:

3.     His Honour erred in holding that the Tribunal had not committed jurisdictional error, by relying on the assertion that the first Appellant “may” be from China, this not being evidence at all, capable of being relied on by the Tribunal.

Particulars

i.        Section 420

ii.        Section 424

iii.        Section 430, in particular (1) (b)

…

4.     His Honour erred in his assessment of the Judgment of this Court concerning the First Appellant and Appellant SZQYN, delivered by Her Honour Justice Farrell on 1 May 2014, having citation SZQYM v Minister for Immigration and Citizenship [2014] FCA 427. In so doing, His Honour repeated the error which was corrected by Justice Farrell on 1 May 2014.

         Particulars

i.        Her Honour’s reference to the need for a “detailed consideration” in order to satisfy the Act, inter alia Section 47 (inter alia, paragraph 52 thereof).

ii.        Her Honours [sic] finding that evidence of a person’s nationality should be approached with caution having regard to the Briginshaw principle (paragraph 58), including that “…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……”

iii.        Paragraph 59: “…I do not consider 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…”

iv.        Paragraph 68, including sentence: “……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 ……”

v.        The Judgment considered in toto.

124    As put, the argument did not fully conform with the terms of these grounds. The terms of the judgment of Farrell J and their proper assessment by the Tribunal were not the source of any error of the Tribunal as put in oral address. Rather, it was submitted that the refusal of the Tribunal to find a nationality, together with the finding that they were not North Korean by finding of a lack of credibility “on matters which did not go to their North Korean nationality” meant that the Tribunal had not approached its task in accordance with the Act.

125    I do not accept this submission, at least to the extent that it denies to a tribunal the capacity to remain unpersuaded of nationality by reason of credibility. If a tribunal is so unpersuaded by the evidence of persons whom it considers to be telling untruths on all issues, it may remain unpersuaded as to essential facts. One such essential fact here was the nationality of each of Mr N and Ms M. On the material, however, there was no suggestion of any possible nationality other than North Korean, or Chinese of Korean ethnicity. In places in the decision the Tribunal said it was unpersuaded that Mr N and Ms M were North Korean; in other places it found they were not North Korean. The latter was the substance of the findings. If they were not North Korean, it is difficult to avoid a finding that they were Chinese of Korean ethnicity.

126    In submissions by the Minister it was put that there were other alternatives. But no other rational alternative suggested itself to anyone – the delegates or the Tribunal. The whole denial of North Korean nationality was constructed around disbelief as to their histories of being North Korean and the existence of Chinese of Korean ethnicity being able to answer questions of the kind posed by Dr Lee. If they weren’t North Korean, what were they? The only hypothesis thrown up by the evidence was that they could be Chinese. No one asserted that they were not of Korean ethnicity; indeed it appeared accepted even by the Tribunal that they were of Korean ethnicity. No one suggested they were South Korean. They had certainly come to Australia on flights from China.

127    This is not a case of a person unwilling to identify him or herself who may come from any number of countries, but who will not assist with enquiries as to identity. These people are of Korean ethnicity; no one suggests they are South Korean; Ms M can speak Mandarin, but she does not read or write Chinese, or so she says; there is no basis to think that Mr N has any fluency in Chinese; they seem to be either North Korean or Chinese. No one has done a language analysis other than Dr Petrov.

128    There has been no want of cooperation as in Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; 265 CLR 285. These people have put a full account to the Department and the Tribunal. They have, however, despite that, been comprehensively disbelieved. They have been found not to be North Korean, but it is said that it cannot be concluded on the material that they are Chinese of Korean ethnicity, being the only rational possibility thrown up by the material.

129    The process of a tribunal such as this should not result in a conclusion that can be described as I have. I am deeply troubled by the comprehensive credit findings on the kinds of asserted inconsistencies relied upon by the Tribunal, especially in respect of Ms M. The submission was put that the decision, leaving, as it does, the nationality of the appellants up in the air was arbitrary and capricious and against the weight of the evidence.

130    The difficulty with the submission that the conclusion was against the weight of the evidence is that there was no full frontal attack on the credit findings: cf CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109; and Gill 250 FCR 309.

131    There is more force in the submission that the Tribunal has failed to deal fully with the review of the applications. It is said that the material does not permit a conclusion that Ms M or Mr N is Chinese, but it is said they are not North Korean, largely (though crucially influenced by the (mis)understanding of Dr Lee’s evidence) because they are said to be untruthful. On the available material if they are not (untruthful) North Koreans, they at least appear to be (untruthful) Chinese. If they cannot be said to be Chinese that may necessarily tell one something of their nationality. It may cause one to conclude that some lack of truthfulness or accuracy or reliability of memory may not destroy the reality or probability that they are North Korean.

132    It is unnecessary to reach a conclusion about this matter because I am of the view that ground 4A should succeed. That ground (to which I will come next) assists in understanding the difficulty that I am presently addressing. Dr Petrov and Dr Lee were certain that both Ms M and Mr N were North Korean. This evidence was discounted and given virtually no weight partly because of a misinterpretation or misunderstanding of Dr Lee’s report, partly because of country information about ethnic Koreans living in China, and partly because of a disbelief of the evidence of the applicants. Indeed, Dr Lee’s evidence was used to support the contrary of what it actually stood for: see [75] above. The gravamen of the misunderstanding was that the Tribunal thought that Dr Lee was saying that ethnic Koreans living in China could have answered his questions. If one so construed Dr Lee’s evidence, it ruled out other possibilities: they were either North Korean, or Chinese of Korean ethnicity, and not other. Yet the Tribunal felt unable on the material to make a finding of Chinese nationality.

133    Thus there is room to conclude that a conclusion that is inconsistent with available material that the appellants are North Korean or Chinese, in that the Tribunal finds they are not North Korean, but says that there is insufficient basis to say they are Chinese, is arbitrary or capricious, or at least the task has not been completed.

134    The vice may lie not in the conclusion that the material is inadequate to conclude that Ms M or Mr N is Chinese, but in the adamant confidence and certainty of the untruthfulness of two people after successive questioning on different occasions, before different people, through different interpreters, and the drawing of conclusions about inconsistency, some of which were, to say the least, doubtful.

Ground 4A

135    Ground 4A was set out at [21] above.

136    The Minister objected to the new point being raised. Reference was made to a number of decisions where judges of the Court have considered the question of allowing a fresh point to be run on appeal that was not seen below. The matter was addressed by the Full Court in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at 438–440 [34]– [39]. Care needs to be taken in seeking overly to conceptualise or categorise matters which, in any particular case, may be seen to affect the interests of justice, into categories of consideration to be objectively applied as some kind of rule or set of rules in all future cases: cf Han v Minister for Home Affairs [2019] FCA 331 at [4]–[21]. The interests of justice are not limited to fair and efficient procedure, but extend, in the proper case, to the potential vindication of a just outcome. Certainly, if the new point could by any possibility have been dealt with by the calling of evidence at the trial such will generally disentitle the matter being raised: Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7–8 and the discussion in Branir 117 FCR at 438–439 [34]–[37]. Despite a suggestion of that in submission, this was not the case here. The country information dealing with the topic of persons of Korean ethnicity living in China was dealt with by the Tribunal. It is difficult to understand how reference to more of such material at the trial could or would have had any effect upon the point at all. The point was, and is, that the Tribunal misunderstood and misstated a central piece of evidence, going to the central issue of the nationality of each appellant; the misinterpretation permitted a perceived latitude in the architecture of the objective framework of the decision into which the credit assessments of both were placed. More country information of the kind to which the Tribunal referred could not possibly have affected the importance of the evidence, if not misunderstood, which went the other way.

137    The ultimate question in permitting a new point to be raised on appeal is the interests of justice: Branir 117 FCR at 439–440 [38]–[39]. There are a number of considerations here that make it just and proper and in the interests of justice to allow the point to be argued. The meaning of the evidence (that is, what Dr Lee was saying) was objective and central. Properly understood it was utterly contradictory of the adamantly certain credit findings made on the central issue of nationality; indeed, the misunderstood evidence was in fact used by the Tribunal to support those findings. Not to permit it to be raised in circumstances where these two people have been disbelieved – called untruthful, in part using this material by way of misstating its effect, would be an affront to the interests of justice. That affront is to be recognised as having some greater force when one appreciates the fragility of some of the foundations for the adverse credit findings.

138    The point is a simple one. I have described it already. There is not merely some mistake of fact in respect of which the Tribunal can be seen to have authority to make. Sometimes the identification of how, and in what respect, a tribunal can be seen to have erred, is just to reveal a mistake within authority or within jurisdiction.

139    The assessment of evidence and material before it is the essence of the task of the Tribunal. Part of that task is to assess the credibility of applicants. That task is now affected by s 423A of the Act. The importance of credibility, and the relationship of findings about such to central claims of applicants, makes important the proper appreciation of all material to which the Tribunal must have regard. I refer to and adopt what was said in Gill 250 FCR 327–332 [46]–[66] (recognising that the statutory regime in that case was Part 5, not, as here, Part 7 of the Act) about fact-finding and judicial review. The expression of principle concerning the review of illogical or irrational or legally unreasonable findings of fact of the sufficiently clear and extreme character referred to in ARG15 v Minister 250 FCR at 122 [47] (repeated in Gill 250 FCR at 331 [62]) and in CQG15 253 FCR at 508–509 [38] (repeated in Gill 250 FCR at 331–332 [64]), also applies here. The critical misunderstanding of Dr Lee’s evidence was fundamental. The meaning of Dr Lee’s report cannot be doubted, in my view, when it is read and considered as a whole. The fact that it was not so read earlier by those acting for Ms M and Mr N after the decision became available, was a point made by the Minister to lessen the character of the misinterpretation as one that was open. I disagree. There are many aspects of these decisions that no doubt taxed the skill and energy of those who framed the case in the Court below. The English language and context is not without its nuance and difficulty. I cannot speak for others, but in my view the meaning of Dr Lee’s report is so plain, in full context, as to demand the conclusion that the error was not open and that the views of Dr Lee have not been given consideration or there has not been regard to them, because they have been misinterpreted, misunderstood and misapplied.

140    Here the mistake was of central evidence as to a central fact: see Gill 250 FCR at 333 [72]. It was employed in questioning two people. It played a not unimportant part in the findings as to their nationality and as to their credibility. The mistake was of such gravity that it could not be seen to be authorised as part of the jurisdictional task of the Tribunal: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at 132–133 [22]–[25].

141    Another way of putting the matter may be that the Tribunal failed to have regard to Dr Lee’s report or, at least, the information in it. The obligation to have regard to relevant information before it is both implicit and explicit (see for example s 424) in the task of review under Part 7. This obligation carries with it a meaningful content: see for example Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; 109 FCR 152 at 163–165 [52]–[59]; Tickner v Chapman [1995] FCA 987; 57 FCR 451 at 462 and 495; Jia Legeng 205 CLR at 540 [105]; Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; 190 FCR 248 at 271 [61]–[62]. The necessity for realistic or genuine consideration, or intellectual engagement with the information that the words and structure of the Act require, is not limited to a rejection of insouciant, careless or superficial examination of information. Information should be taken to mean here that which it is not open for a tribunal to misunderstand from a report such as that of Dr Lee. Dr Lee’s report, that is the information in it, cannot be said to have been considered and it cannot be said that the Tribunal has had regard to it, in circumstances where it has been fundamentally misunderstood in a way that was not reasonably open. Another example might illustrate the point: If an important piece of information – a document – clearly contained a statement of fact X and a tribunal read the document but did not see the statement and thereafter used the absence (wrongly thought, from clear misreading) of the statement of fact X in the document as the or a reason for disbelieving the applicant on an important issue, it could not sensibly be said that the tribunal had had regard to the document or to the information in it. So here: where Dr Lee’s report has been completely misunderstood, in a way that was not reasonably open.

142    If the misinterpretation had not occurred the evidence of Dr Petrov and Dr Lee could not have been dealt with as it was by any fair and open-minded tribunal. A fair and open-minded tribunal would have been required to consider the question as to how these two experts could have come to the view they did. There could have been no reasonable or fair and open-minded justification for brushing aside their conclusions on the basis of a year’s opportunity to learn knowledge about North Korea. After all, whether that was possible, would or might depend on the views of the two experts. Just as a psychiatrist takes a history, Dr Petrov and Dr Lee assessed what they were told. If it is to be concluded that they were duped by the applicants, a fair and open-minded tribunal could and would not so conclude without seeking their views as to that possibility. One expert, Dr Petrov, listened to their speech patterns. Before a fair and open-minded tribunal dismissed their views as the duped product of dishonest applicants being Chinese of Korean ethnicity, effectively learning their lines about North Korean life and mimicking North Korean accents, vernacular or patterns of speech, it would, out of fairness and a reasonable and open-minded approach, put these matters to witnesses of the calibre and background of Dr Petrov and Dr Lee, who were available for their views to be taken: cf Devaney v The Queen [2012] NSWCCA 285 at [88].

143    It was submitted that the error was not material. The country information was said to support the findings that were made. That, however, is not to give the evidence the important character it bears. Of course the country information reveals many Chinese of Korean ethnicity in North East China. That population has been there for 300 years, with a recent influx during the upheaval and devastation of the Japanese invasion of Korea and China in the 1930s. That is the point, however: the evidence, properly understood, was that they were from North Korea, not Chinese of Korean ethnicity.

144    The error concerned important evidence going to a central issue in the exercise of jurisdiction. The error was material. A proper reading of the evidence by a fair and open-minded member could have made a difference to the decision: Hossain 264 CLR at 134–135 [30]–[31]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 433 [2]; and EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; 268 FCR 299 at 308–310 [35]–[39]. The evidence had to be confronted; it could have sown doubt, by its clarity, in the consistent certainty of the credibility findings. No prediction of irrelevance of the evidence of Dr Lee, properly understood, could be made to the consideration of a fair and open-minded fact-finder.

145    None of the reasoning of the Tribunal was adequate or sufficient to permit a conclusion that the evidence, properly understood, could not reasonably have made a difference to the outcome.

Ground 5

146    Ground 5 was set out at [21] above.

147    This ground was faintly put before the primary judge. It bears a relationship to the third and fourth grounds as argued.

148    Sections 36(2)(a) and (aa) are in the following terms:

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)     a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;

149    Section 36(2)(aa) is referable to where the person will or may be sent under s 198. Section 36(2)(a) calls for an inquiry in consideration with the nationality of the person: s 5H. The “receiving country” for s 36(2)(aa) may, in any given case, be this same country, or it may be a country other than that of nationality. It may be a country yet to be decided upon by the Minister.

150    Here, the Minister had, first, maintained Ms M and Mr N were North Korean and thus citizens of South Korea. That would suggest that the receiving country would be South Korea, assuming (as was submitted by the Minister’s counsel with some force) that the Government of Australia would never send them back to North Korea as the receiving country.

151    The Minister, then, through his delegate, was unpersuaded that Ms M and Mr N were North Korean, but erring on the side of caution assessed them (as North Korean) by reference to their being sent to South Korea as a receiving country.

152    The Tribunal has found that the appellants are not North Korean. Its attempts to grapple with the consequences of its findings are set out at [210]–[214] in respect of Ms M’s decision and [158]–[165] in respect of Mr N’s decision (see [79]–[80] and [101] above, respectively).

153    With respect, it is difficult to see why the Tribunal was not required to posit China, and South Korea, as likely possible receiving countries. They are two possibilities most directly thrown up by the facts and findings.

154    In [211] of Ms M’s decision there is an unreasoned and somewhat half-hearted conclusion as to a lack of “a real chance of serious harm or a real risk of significant harm”. This language echoes both para (a) of s 36(2) read with s 5J(4)(b) – “real chance of serious harm”; and para (aa) of s 36(2) – “real risk of significant harm”. The finding engages with none of the possible risks involved. If she and her son were returned to China would China accept them as Chinese on the finding of the Tribunal? Would not this call for the prudent qualification: “What if I am wrong?” The Tribunal had before it a 20 page expert report prepared by Dr Bluth, a Professor of International Relations and Security with research experience in the security policies of North and South Korea. This report provided detailed information as to the risks faced by North Korean defectors in China and South Korea. If the Chinese authorities viewed Ms M as North Korean, she would face the risk of removal to North Korea, with or without her son. If she were to be sent to South Korea would she or her family in North Korea be safe, and would she be safe in South Korea if viewed by North Korean agents as North Korean? None of this was assessed. The conclusion in [214] that she will not be sent to North Korea, does not exhaust the available receiving countries on the material.

155    Likewise in relation to Mr N. The terms of [161] do not engage with the risks that he might face if he were regarded by Chinese authorities, or by North Korea, as North Korean. He may then face the risk of removal to North Korea by China (if the Tribunal were wrong about his nationality) or he may face danger in South Korea if he was viewed by North Korean agents there as North Korean. None of this is dealt with.

156    Further, [165] does not deal with the other possible available receiving countries: China or South Korea.

157    To the extent that the submissions went so far, I do not accept that the Tribunal must keep its decision-making process open and unfinished for however long it takes for the Minister to make a decision as to where to send Ms M or Mr N. It should, however, to complete the review function before it, decide upon matters relevant to the operation of s 36(2)(aa) by reference to the identifiable possible receiving countries thrown up by the material before it.

158    The Tribunal failed to complete its task of dealing on a reasoned basis with s 36(2)(aa) in respect of both Mr N and Ms M.

Orders

159    Given how the matter was argued and has fallen out, I will give the parties an opportunity to deal with costs by applying to vary the standard order that costs follow the event. In each matter, I will make the following orders:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court made on 15 March 2019 be set aside and in lieu thereof, subject to order 4 below, the Court orders that:

(a)    the decision of the Administrative Appeals Tribunal made on 30 October 2018 be set aside;

(b)    the matter be remitted to the Tribunal for decision according to law; and

(c)    the first respondent pay the applicants’ costs.

3.    The first respondent pay the appellants’ costs of the appeal.

4.    Any party seeking to vary order 2(c) or 3 above, file and serve two pages of written submissions by 4pm 17 June 2020, any submissions in response to be filed and served by 4pm 19 June 2020 and the question thereafter to be dealt with on the papers.

Associate:

Dated:    12 June 2020