Concealed by the Falling Snow

Case NSD460 of 2005 (Australian Court Review)

Today it is my hope to bring to you the joy that comes from reading an Australian court record.

I provide brief highlights, but if you have more time, the whole document makes for fascinating reading.

This, then, is a glimpse into the life in North Korea, and the escape from it, of an applicant for asylum.

* * * * *

“… in late 1976, while resident in North Korea, [the applicant] visited some friends who were listening to a radio program broadcasting from South Korea.” I imagine them huddled together around a single radio in the wintertime, hungry for a voice from the outside world.

“Shortly afterwards, those friends were arrested and imprisoned.” Did the authorities’ monitor receive frequencies? Was the house bugged? I also wonder where these friends are now, and what they remember from the broadcast that night.

The applicant himself was questioned, and remained under close surveillance for the next two years. He was denied entrance to the military.

A view of North Korea from the Chinese border (photo credit Flickr user ming1967)

“Along part of the border is a river that freezes during winter, such that it is possible to walk over the river. In December 1997, on a night on which it was snowing heavily, he fled to China across the river, concealed by the falling snow.” From this I get another great image courtesy of the inimitable New South Wales District Registry NSD460 of 2005. The guards are huddled in their barracks, perhaps with backs turned to take the brunt of the wind across the river, and in the thickly falling snow a shape moves unnoticed behind them.

The refugee had intended to work in China and send money back to his wife and children in North Korea, but soon decided to go back and help them escape as well. They did so—apparently on a similarly snowy December night three years later—and they all made it to Yun Kil city in Yun Kil province.

“In about March/April 2002, as a result of the Chinese authorities’ repatriation to North Korea of numerous North Koreans living illegally in Yun Kil city, I decided to send my wife and children to live with a distant cousin in a place known to me as Huek Ryong Kang Sung.”

He has not heard from them since. He stayed for a while, working in Yun Kil city, and then left China.

* * * * *

“Under the constant supervision of various people smugglers, the applicant arrived in Australia by way of Hong Kong, Malaysia, Vietnam and New Zealand.” The immediate question for most people will be: why Australia? Why not the obvious choice, South Korea? Here the argument of the case begins.

 “The applicant said that he did not wish to go to South Korea and stated that, if it was a choice between death and South Korea, then he would choose South Korea but that he did not consider South Korea to be a real option for him.”

He tells the Tribunal his beliefs:

“I would never go to South Korea, as doing so will place:

(i) my brother (and his family);

(ii) my wife and children (if they have been repatriated);

(iii) my cousins, uncles, aunts and in-laws (and their respective


in danger of persecution in North Korea.

The North Korean authorities have agents in South Korea.  Such agents will notify the North Korean authorities of my presence in South Korea.

Further, if I am forced to go to South Korea, I too will suffer persecution.

… I believe that the guilt from the knowledge that my relatives are

being persecuted (or are at risk of persecution) due to my forced

residence in South Korea, will cause me to become mentally

imbalanced and lead me to suffer severe psychological harm.

Secondly, I believe that the agents of North Korean authorities in

South Korea will seek to harm me.”

His fear is obvious, but The Tribunal cannot believe it to be a fear well-founded. It finds no evidence that North Korean spies operate in South Korea, nor does it believe that they would even be aware of a low-profile defector.

“[The applicant] contended that there was no evidence before the Tribunal that the North Korean authorities only target, or seek to identify, high profile defectors in South Korea or that, with such a rigidly totalitarian state as North Korea, there was even a concept of a defector with a profile.”

A worthy point! But the Tribunal is unmoved:

‘Taken together the applicant’s absence of profile and specific adverse interest to the North Korean authorities, his limited family connections in North Korea and his vagueness as to his anticipated psychological harm the Tribunal does not accept the applicant’s claimed fear of psychological harm, in terms of increased concern for this family’s safety by his residing in South Korea, is well-founded.’

The judge in review of the case cannot resist a sardonic aside: “That sentence has some syntactical peculiarities.” However, “in essence, the Tribunal was clearly recording its conclusion that the applicant’s claimed fear of psychological harm from residing in South Korea is not well-founded.” I love our judge’s mordant wit.

The applicant objected, which objection the judge recorded in his own involuted way:

“Accordingly, so it was said, in so far as the Tribunal made the findings summarised above, by relying on the alleged lack of profile on the part of the applicant, the Tribunal failed to exercise its jurisdiction because its satisfaction was based on findings not reasonably open on the evidence before it.”

What a wonder of a sentence! If you don’t read these for the content, at least the style is unmatched in most other literature.

In the end, the judge—though unable to resist a last dig at the Tribunal—decides:

“I do not consider the first general ground has been made out.  While the passage cited above as giving rise to this ground is not expressed as felicitously as it might be, it is clear enough what the Tribunal was saying.” In the Australian court’s opinion, there was no real chance that the North Korean authorities would find the applicant, and this is reassuring.

The applicant is denied asylum, and ordered to pay the court’s fees.

* * * * *

I hope the judge was right. I hope the applicant made it to South Korea, and that he lives there now without significant fear of the punishment of anyone close to him. The refugees I met in South Korea were afraid for many reasons, and they had good ground to be afraid in the past. But I am with the judge. I think that most of these fears are no longer necessary, in South Korea—the overstretched North Korean government can’t be everywhere. And in the eyes of some of the refugees I met, you can see the fears receding. Which is an encouraging thought.

Thus ends our first investigation of an Australian court record!


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