NBLB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1051

NBLB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1051

The Tribunal made findings open on the material that there was no real chance the North Korean authorities would learn of the applicant's defection simply because he resided in South Korea and therefore his fear of psychological harm was not well-founded. Even if 'all possible steps' in s 36(3) meant all reasonably practicable steps, the applicant had not shown he could not travel to South Korea and apply for citizenship, and subjective fear about consequences did not affect s 36(3) unless ss 36(4) or 36(5) applied. The Tribunal also did not err by applying a serious harm analysis, because persecution in s 36 is to be treated consistently with s 91R. No jurisdictional error was established.

Jurisdiction
Australia
Judgment Date
01 August 2005
Procedural Posture
Migration Application for Review of Refugee Review Tribunal Decision Under S 39 B of the Judiciary Act 1903 (cth) / Federal Court Hearing of Application Challenging Tribunal Decision Affirming Refusal of Protection Visa
Outcome
Application dismissed with costs.
Legal Topics
['protection Visa' 'refugee Review Tribunal' 'well Founded Fear of Persecution' 'right to Enter and Reside in Third Country' 'all Possible Steps Under S 36(3)' 'serious Harm and Persecution Under Ss 36 and 91 R']
['migration Law' 'administrative Law' 'refugee Law'] ['protection Visa' 'refugee Review Tribunal' 'well Founded Fear of Persecution' 'right to Enter and Reside in Third Country' 'all Possible Steps Under S 36(3)' 'serious Harm and Persecution Under Ss 36 and 91 R']

Case Brief

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Procedural Posture

Migration Application for Review of Refugee Review Tribunal Decision Under S 39 B of the Judiciary Act 1903 (cth) / Federal Court Hearing of Application Challenging Tribunal Decision Affirming Refusal of Protection Visa

Legal Issues

  1. 1 ["Whether the Tribunal committed jurisdictional error in finding that the applicant's claimed fear of psychological harm from residing in South Korea was not well-founded." "Whether the phrase 'all possible steps' in s 36(3) of the Migration Act 1958 (Cth) should be construed as 'all reasonably practicable steps' and whether the applicant's subjective fears made it not reasonably practicable to avail himself of a right to enter and reside in South Korea." 'Whether the Tribunal erred by treating the concept of persecution in s 36(4) as requiring serious harm as described in s 91R.']

Ratio Decidendi

The Tribunal made findings open on the material that there was no real chance the North Korean authorities would learn of the applicant's defection simply because he resided in South Korea and therefore his fear of psychological harm was not well-founded. Even if 'all possible steps' in s 36(3) meant all reasonably practicable steps, the applicant had not shown he could not travel to South Korea and apply for citizenship, and subjective fear about consequences did not affect s 36(3) unless ss 36(4) or 36(5) applied. The Tribunal also did not err by applying a serious harm analysis, because persecution in s 36 is to be treated consistently with s 91R. No jurisdictional error was established.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed.' "The applicant pay the first and second respondents' costs."]