SZLZM v Minister for Immigration - [2008] FMCA 887

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLZM v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 887

MIGRATION – RRT decision – Chinese applicant fearing persecution for political opinion – entered Australia on fraudulent Japanese passport – Tribunal’s reasoning based on its examination of his travel arrangements – refugee claims disbelieved – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), s.424A

A v Minister for Immigration and Multicultural Affairs [1999] FCA 227
Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472
Wickramasinghe v Minster for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 30

Applicant:

SZLZM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 370 of 2008

Judgment of:

Smith FM

Hearing date:

18 June 2008

Delivered at:

Sydney

Delivered on:

18 June 2008

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Ms E Baggett

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 370 of 2008

SZLZM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant entered Australia on 25 March 2006, by presenting a Japanese passport bearing his photograph, with an attached electronic travel authority issued to a Japanese tourist agency, and including a stamp indicating departure from Narita Airport in Tokyo, and no other stamps. When the passport was later examined by document examiners in the Department of Immigration, they reported that it contained “All of the manufacturing and security features that would normally be available in a Japanese passport of this series”, that there was “no evidence of tampering or alterations having occurred”, and that “the base document is a genuine Japanese passport of this series”. When the Narita Airport stamp was investigated, the applicant was able to present to the Tribunal another document also stamped with the Narita Airport stamp to prove that it was counterfeit, and the document examiners confirmed this.
On 8 May 2006 an application for a protection visa was lodged by a migration agent, Priscilla Yu, on behalf of the applicant. For the first time, the applicant claimed to be a citizen of the People's Republic of China. He presented a copy of a Chinese identity card, bearing a photograph very similar to that in the passport. The Department's document examiners gave opinions about the apparent genuineness of this document in the same terms as they had reported on the Japanese passport.
A statement attached to the application set out a history explaining why the applicant claimed protection in Australia against return to the People's Republic of China. He said that he had been in business distributing "aquatic products" to restaurants and hotels, and had established his own aquatic farm. He claimed that in 2004 he was pressured to make payments to corrupt officials, who had wrongly charged him for expenses of a bird flu influenza program, and also required him to purchase "various kinds of preventative medicine" for use in his farm. He claimed that in May 2005 this medicine wiped out his aquatic farm stock “in one night”. He said:
My aquatic farm was not the only victim; and as a matter of fact, many other companies including aquatic farms, chicken farms or even some of pig farms, suffered from similar disasters.
He claimed to have sought compensation unsuccessfully, and then to have organised other victims to send petitions to governments. Although a special investigation group was set up, its report was not supportive, due to corrupt influences. He said that in November 2005:
I organised nearly 100 people, who had run small private business like me and suffered from the same disaster as mine, to have sit-in protest in front of Fuqing Government.
But this was immediately suppressed, and he was arrested “as a major organiser” and detained for about one month from November to December 2005. In detention, he was subject to “inhuman mistreatment”. He was released on bail for medical treatment, and required to report to the police, and not allowed to appeal. After his release he was continually subjected to persecution by police. The PSB often came to his home and, after he escaped overseas on his false Japanese passport, the police had come to his home many times and had questioned his father and wife and taken his father into detention.
The application was refused by a delegate on 21 July 2006. The delegate formed the view that the applicant's claims were unsubstantiated and lacked credibility. He said: “the absence of verifiable detail leads me to believe the applicant's situation is not as claimed”. The delegate referred to the absence of any evidence about the business entities which were referred to by the applicant, or of the events concerning his business losses. The delegate also referred to other reasons for doubting the applicant's claims.
On appeal, the applicant was further assisted by his agent. He attended a hearing held by the Tribunal on 18 October 2006, and at the hearing was given the tapes. He has not presented the Court with a transcript of what was said. According to the Tribunal, he presented three documents with translations, which purported to be official Chinese documents bearing numerous official stamps, corroborating the applicant's arrest, release on bail, registration of a company, and a medical certificate of “deafness caused by external injury".
It is apparent from the Tribunal's description of the hearing, and from its subsequent correspondence with the applicant and his agent, that it sought to test his veracity by closely examining his travel from China to Australia, in particular, what had happened at Tokyo Airport and how he had travelled there from China. The absence of any exit stamp from China in the Japanese passport which the applicant strongly maintained he had used to exit China, was a matter clearly put to the applicant at the hearing and in the course of three subsequent invitations for written comment. In the third of those letters, the Tribunal told the applicant that the information it put to him:
Is adverse to you, because the lack of a China (PRC) exit stamp on the fraudulent Japanese passport may lead the Tribunal to infer that your claim, that you did not leave China (PRC) using a China (PRC) passport in your own name, is false. It may lead the Tribunal to infer that you have used a China (PRC) passport in your own name, which you have not disclosed to the Tribunal or Department.
The letter warned the applicant that this might cause it to disbelieve his other claims, and to find that he was not a witness of truth. He was told that, if the Tribunal found that he did leave China on a valid Chinese passport in his own name, the Tribunal might conclude that he left China unhindered, and was not a person of adverse interest to the Chinese authorities.
It was this reasoning which ultimately the Tribunal relied upon, when it published its decision on 22 January 2008 to affirm the delegate's decision.
In its statement of reasons, the Tribunal recited all the claims made by the applicant, and the correspondence it had had with the applicant and his responses. It referred to general information that Chinese authorities check all outgoing passengers against an alert list, and that border authorities at every border checkpoint in China stamp the passports of travellers entering and exiting the country.
In its findings and reasons, the Tribunal said that it was satisfied that the applicant was actually a citizen of China. It referred to its examination of the method of the applicant's arrival in Australia, and his use of the Japanese passport, which it accepted was fraudulent. It concluded:
The Tribunal has deduced from Country Information that if the applicant had used the Japanese passport (as he has adamantly insisted) then it would have contained the necessary China (PRC) exit stamp - which was not, in fact, present on the document. There is no logical reason why the applicant would not have had an official exit stamp on the false Japanese passport if he used it as claimed. He has adamantly insisted that he did not exit China (PRC) using a China (PRC) passport. He claimed that to depart China (PRC) using a China (PRC) passport in his own name would have been dangerous because of his prior adverse history with the PSB. The Country Information above confirms his observation.
The Tribunal finds that when juxtaposed with the Country Information the applicant’s explanation to the Tribunal of his entry into and departure from Dalian airport is unconvincing and not credible. The China (PRC) law and protocol indicates that he would have been required to enter a separate queue to that used by China (PRC) citizens and then he would have faced a number of other protocols.
The context of the Tribunal's reference to “There is no logical reason” shows that it was not referring to notions of formal logic, but was using the word ‘logical’ in the sense of ‘reasonable’ or ‘acceptable’ to the Tribunal (compare the discussion of references to "no evidence" in Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 479-80, also A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 at [1] and [18-23], and Wickramasinghe v Minster for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 30 at [18]).
This becomes clear in the present reasons, because the Tribunal closely examined the applicant's attempts to explain the absence of a Chinese exit stamp in his passport, and it explained why it did not accept them. He had claimed that his friends had been able, through corruption, to get him on to the aircraft without an exit stamp in his Japanese passport. The Tribunal said about his explanations, and its further conclusions:
The Tribunal does not find the explanation of the applicant to be either particularly clear or persuasive. The applicant only raised the explanation of the use of “connections” when pressed by the Tribunal to explain his lack of a China (PRC) exit stamp. The Tribunal does not accept (on the basis of the Country Information) that a person could simply walk through the airport customs gate without hindrance without being required to have his passport (the Japanese fraudulent one) stamped with the required exit stamp. The applicant has claimed his path was smoothed by his friend nodding to the official and his accomplice had ‘connections’. But the Tribunal observes that the fact that he denied seeing the exit stamp placed in his passport would directly contradict the strict airport procedures set out in the Country Information. This includes a prohibition on the use of identity cards as formal identification at airports.
The Tribunal can only conclude that if the applicant did not have his false Japanese passport stamped he must have used an undisclosed passport, as an identity card was not acceptable to the China (PRC) authorities. The only other passport the applicant could have used was a China (PRC) passport or an undisclosed “alien” passport. Either way the applicant has not satisfied the Tribunal concerning his manner of exiting China (PRC). The Tribunal finds his explanation is unsatisfactory when juxtaposed with the reliable Country Information and that he did not use his false Japanese passport to exit China (PRC) and that he is, therefore, an unreliable witness.
The Tribunal finds that it is highly likely that (if he did not use the false Japanese passport as claimed) that instead he can only have used another (undisclosed) passport to exit China (PRC). The Tribunal reaches this logical conclusion because the applicant has been unable to give a satisfactory explanation as to why (in the light of country information) he did not have the appropriate China (PRC) exit stamp on the false Japanese passport he claimed he used to depart China (PRC). As he had been found by the Tribunal not to be a reliable witness and he was unhindered in his departure from China (PRC) the Tribunal concludes that he had no adverse history with the China (PRC) authorities and was not on any ‘watch list’ of China (PRC) citizens for those reasons.
This reasoning of the Tribunal persuaded it that the applicant was generally an unreliable witness, as were the documents corroborating his claimed events in China. The Tribunal did not accept any of the elements of persecution which he claimed had been suffered by him and his family. It found that he had not been hindered in his exit from China, but travelled out of China on an unknown passport, and was not a person of adverse interest to the Chinese authorities. It found that he did not have a well founded fear of persecution for a Convention reason if he returned to China.
The applicant asks the Court to set aside the Tribunal's decision, and to send the matter back to the Tribunal. I have power to do this only if I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's refugee claims should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant's application relies upon general contentions of jurisdictional error, which are explained in eight argumentative paragraphs. His arguments attack the Tribunal's reasoning which was based on the absence of an exit stamp in the Japanese passport and the Tribunal's rejection of the applicant's explanations. It is argued:
5.As a matter of fact, it is owing to strong helps and careful arrangement of my friends that I could leave China on Japanese passport. There were many explanations or various reasons why there was no exit stamp on the Japanese passport. It might be for the reason that they did not want to left any records with computer system at the airport. However, no matter what had really happened, it would be impossible for me to make any explanation about it. Again, my departure was carefully arranged by my friends, and what I had done at that time was just following their instruction to depart China through a particular gate at the custom.
It is contended in the application, and the applicant repeated this strongly to me today, orally, that the Tribunal has not properly considered that the “very corrupt system in China made it possible that I could depart China with strong helps of my friends”. It is then contended that there were four jurisdictional errors:
-making a finding on the ground of misstating my claims;
-failing take a genuine attempt to consider my claims;
-failing to consider properly and fairly or ignoring my important evidences; and
-making a decision including a reasonable apprehension of bias.
It is also contended in the application, and this was further explained in oral submissions today, that the Tribunal failed to comply with obligations under s.424A(1), because the Tribunal did not put to the applicant or give the applicant an opportunity to explain, in writing, the possible implications of the absence of a Chinese exit stamp in the Japanese passport, and the reasoning which the Tribunal developed from that omission.
In my opinion, none of these contentions identifies jurisdictional error on the part of the Tribunal. The Tribunal was in a difficult position when assessing the truth of the applicant's presented history, because, on his own account, he was a person with access to cleverly manufactured official documents and good advice about how to use them.
In my opinion, in this situation, it was open to the Tribunal to test the truth of all his claims by closely examining the details of his travel and, in particular, his claim that he was not able to leave China on a Chinese passport, but had to rely on a fraudulent Japanese passport.
The alternative hypothesis from the applicant’s travel documents pointed strongly towards his having travelled out of China without difficulty on a different passport to the Japanese passport, and that he had been given that passport, containing a counterfeit departure stamp and an Australian visa, while waiting in the transit lounge at Narita Airport.
It was a matter for the Tribunal to decide whether it preferred that hypothesis rather than the account given by the applicant. It was open to it to test both hypotheses by examining the applicant’s explanations for being able to leave China without any stamping of his foreign passport, and to be assisted by the general information to which it referred.
I do not consider that the Tribunal's reasoning reveals that it misstated any of his refugee claims, nor that it did not attempt genuinely to consider all of his claims, nor that it did not assess the relevant evidence according to law. I can find no evidence before me that the Tribunal's decision, or its proceedings, might give rise to a reasonable apprehension of bias.
The applicant's contentions in relation to s.424A(1) have no merit, in my opinion. The Tribunal was not obliged to put its reasoning processes to the applicant, although it was required to explain the relevance of the information which it identified in relation to travel documents, at least to the extent that that information was not in documents given by the applicant to the Tribunal for the purposes of the review.
However, in my opinion, on the Tribunal's description of its hearing, and in the three letters sent to the applicant, it fully complied with all its obligations relating to procedural fairness. I am unable to identify any particular defect which could give rise to a breach of s.424A(1), or any other provision, of the Migration Act.
I am not persuaded that the Tribunal's decision was affected by jurisdictional error. I must therefore dismiss the application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 7 July 2008