SZBOV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1407

FEDERAL COURT OF AUSTRALIA

SZBOV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1407 SZBOV v Minister for Immigration and Multicultural and Indigenous Affairs AND REFUGEE REVIEW TRIBUNAL N 745 of 2005 JACOBSON J 30 SEPTEMBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 745of 2005

BETWEEN: SZBOV

APPELLANT

AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 30 SEPTEMBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 745of 2005

BETWEEN: SZbov

APPELLANT

AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: JACOBSON J

DATE: 30 SEPTEMBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1. This is an appeal from a decision of Federal Magistrate Barnes given on 3 May 2005 dismissing an application for review of a decision of the Refugee Review Tribunal ("RRT") handed down on 16 September 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 2. The only issues which arise on the appeal are whether the Federal Magistrate fell into error in the construction and application of section 91R of the Migration Act 1958 (Cth) ("the Act").

Background 3. The history of the matter is set out in full in her Honour's reasons and it is unnecessary to repeat what was said. 4. Briefly, the appellant is a citizen of South Korea who defected from North Korea. He claimed that he was mistreated in South Korea and that he suffered discrimination because of his former North Korean nationality. 5. He was granted South Korean citizenship in February 1998 but his complaint in the present matter included his reference to the fact that he was only granted a passport valid for one year whereas citizens born in South Korea received passports for a period of five years. The RRT referred to the appellant's complaint on this issue in the following passage:- "At the hearing, the applicant placed considerable emphasis on the fact that he was only granted a passport valid for one year, whereas citizens born in South Korea would receive one valid for five years. He asked if that was not a clear case of discrimination. The Tribunal agreed that it was discriminatory, but said that all discrimination was not persecution. He said that, in fact he was only issued with a second passport so that the Korean Government could deny persecuting him." 6. The RRT accepted without reservation the appellant's claims about his experiences prior to his arrival in South Korea. These experiences included the fact that the appellant and his family were classified as "reactionary elements" in North Korea, with adverse consequences to them. 7. The RRT also accepted that after his arrival in South Korea in August 1997 he was detained and interrogated and as part of that process he was physically assaulted and verbally abused. However, the RRT found that after the appellant was granted South Korean citizenship in 1998 he was not at risk of further interrogation. This was because, by granting him South Korean citizenship the authorities accepted that he was a bona fide defector and not a North Korean spy. 8. The RRT also found that the appellant had been denied public sector employment in South Korea but not as a consequence of his North Korean background. Nevertheless, the RRT did find that the South Korean authorities were discriminatory in their treatment of North Korean defectors and of the appellant in particular. These findings may be summarised as follows: