NBLC v Minister for Immigration & Multicultural & Indigenous Affairs; NBLB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 272

NBLC v Minister for Immigration & Multicultural & Indigenous Affairs; NBLB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 272

By majority, the appeals were dismissed because the appellants had a right to enter and reside in South Korea and had not taken all possible steps to avail themselves of that right within s 36(3). The words "all possible steps" were not to be read down by reference to reasonableness or consequences of residence. The majority also held that persecution in s 36(4) is to be understood consistently with s 91R, including the requirement of serious harm; the Tribunal therefore did not err in assessing whether feared discrimination or harm in South Korea amounted to serious harm. In NBLC, the Tribunal had considered and rejected on the facts the claim that his psychological state might lead him...

Jurisdiction
Australia
Judgment Date
23 December 2005
Procedural Posture
Migration Appeal Concerning Refusal of Protection Visas / Appeal From a Single Judge of the Federal Court of Australia
Outcome
Appeals dismissed with costs.
Legal Topics
['protection Visa' 'section 36(3) of the Migration Act 1958 (cth)' 'all Possible Steps to Avail of a Third Country Right' 'persecution Under S 36(4) and S 91 R of the Migration Act 1958 (cth)' 'north Korean Applicants With Right to Enter and Reside in South Korea']
['migration' 'refugee Law' 'administrative Law'] ['protection Visa' 'section 36(3) of the Migration Act 1958 (cth)' 'all Possible Steps to Avail of a Third Country Right' 'persecution Under S 36(4) and S 91 R of the Migration Act 1958 (cth)' 'north Korean Applicants With Right to Enter and Reside in South Korea']

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Procedural Posture

Migration Appeal Concerning Refusal of Protection Visas / Appeal From a Single Judge of the Federal Court of Australia

Legal Issues

  1. 1 ['What is meant by the expression "all possible steps to avail himself … of a right to enter and reside in" another country in s 36(3) of the Migration Act 1958 (Cth).' 'Whether persecution in the expression "well-founded fear of being persecuted … for reasons of race, religion, nationality, membership of a particular social group or political opinion" in s 36(4) of the Migration Act 1958 (Cth) is restricted by s 91R of the Act.' 'In NBLC, whether the Tribunal failed to address his claim that he might attract attention in South Korea by discussing his story and criticising North Korea, leading to targeting by North Korean agents.']

Ratio Decidendi

By majority, the appeals were dismissed because the appellants had a right to enter and reside in South Korea and had not taken all possible steps to avail themselves of that right within s 36(3). The words "all possible steps" were not to be read down by reference to reasonableness or consequences of residence. The majority also held that persecution in s 36(4) is to be understood consistently with s 91R, including the requirement of serious harm; the Tribunal therefore did not err in assessing whether feared discrimination or harm in South Korea amounted to serious harm. In NBLC, the Tribunal had considered and rejected on the facts the claim that his psychological state might lead him...

Court Disposition

Appeals dismissed with costs.

Orders

  • ['In NSD 1443 of 2005, the appeal be dismissed.' "In NSD 1443 of 2005, the appellant pay the first respondent's costs of the appeal." 'In NSD 1444 of 2005, the appeal be dismissed.' "In NSD 1444 of 2005, the appellant pay the first respondent's costs of the appeal."]