SZMON v Minister for Immigration - [2008] FMCA 1483

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMON v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1483

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of the People's Republic of China claiming fear of persecution for reason of religion – credibility – merits review – identity – no jurisdictional error.

Migration Act 1958 (Cth), ss.424A, 424AA

SZEPZ v Minister for Immigration & Multicultural Affairs (2006) FCAFC 107 followed.
Re Minister for Immigration & Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1, followed.
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 followed.

Applicant:

SZMON

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1968 of 2008

Judgment of:

Scarlett FM

Hearing date:

22 October 2008

Date of Last Submission:

22 October 2008

Delivered at:

Sydney

Delivered on:

22 October 2008

REPRESENTATION

Solicitors for the Applicant:

In Person

Counsel for the Respondents:

Ms Clegg

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5500.00.
A copy of this decision is to be forwarded to the Migration Agents Registration Authority.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1968 of 2008

SZMON

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

The matter before the Court is an application for review of a decision of the Refugee Review Tribunal. The Tribunal handed down a decision on 8 July 2008 affirming the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa. One striking feature of the case before this Court is the question about the applicant’s identity.
The applicant arrived in Australia from China on 16 October 2007. He applied for a protection (Class XA) visa on 29 November 2007. He applied for the visa in the name that was on the passport and visitor’s visa upon which he arrived in Australia. His application for a protection visa was prepared for him by a migration agent named Song Tao Lu, whose address is Post Office Box K885 Haymarket, New South Wales.
The Department of Immigration & Citizenship wrote to the applicant on 7 February 2008 asking him to attend an interview on Thursday 21 February. The applicant attended the interview and the Minister’s delegate put to him concerns about his identity. The delegate described those concerns in the protection (Class XA) visa decision record, a copy of which can be found at pages 46 to 52 of the Court book. The delegate noted:
Information received from the Australian Consulate in Guangzhou, China, where the visa was granted, indicates that the person whose passport sized photograph was attached to the visitor’s visa application is different from the applicant. In other words, the visitor applicant is different from the protection visa applicant. At interview, this information was put to the applicant for his comments and he stated it was impossible[1].
[1] See Court Book at page 46
The delegate asked the applicant to submit his passport and identity card for analysis, but at the time of making the decision the applicant had not done so. The delegate was unable to make a finding on the applicant’s true identity, and referred to the applicant by the name which he used to apply for his visa. The delegate refused the application for a visa on 28 February 2008.
The applicant lodged an application for review of this decision with the Refugee Review Tribunal on 31 March 2008. A copy of that application can be found at pages 53 to 56 of the Court book. The application nominates the applicant’s migration adviser as Song Tao Lu of Sydney Migration Education Centre, Post Office Box K885 Haymarket, New South Wales.
The applicant was invited to attend a hearing of the Tribunal to take place on 7 May 2008. He attended that hearing and gave evidence with the assistance of an interpreter in the Mandarin language. The Tribunal, in its decision, records at page 93 of the Court book that the applicant gave a different name from the name that was on the application for a protection visa. The Tribunal asked the applicant about this and the applicant agreed that the name he had given to the Tribunal was different. He stated that his passport was in the original name, and he arrived in Australia under that name, but he gave evidence that the first time that he had revealed his correct name since arriving in Australia was at the Tribunal hearing.
The Tribunal asked the applicant why he did not reveal his true name when he arrived in Australia. The applicant said that he was persecuted in China and was afraid and dared not reveal his true name, but after several months in Australia he felt the Australian government is very democratic and he can reveal his name.
The Tribunal asked the applicant about attending the interview with the delegate and the applicant agreed that he had attended. The Tribunal raised with the applicant that he had an opportunity to tell the department his real name, but the applicant said that he dared not do so at that stage.
The Tribunal, in its decision expressed itself as unable to make a finding as to his true identity. It accepted that he is a citizen of China, but based on the contradictory evidence that he had given was unable to make a finding as to his identity[2].
[2] See Court Book at page 104
The difficulty was compounded by the fact that the applicant has applied to this Court for judicial review of the Tribunal decision in the original name for which he applied for a protection visa, and which he used to apply for review of the delegate’s decision. In other words, he applied to the Court in a name that he had already confessed to the Tribunal was not his real name. This led to a concern by the Court as to the identity of the applicant and whether the applicant before the Court today is indeed the person applying for review of the Tribunal decision.
The applicant was required to give evidence, and gave evidence on oath in the witness box. He disclosed his name to the Court, which was the same name that he had given to the Tribunal, and which he had confessed to the Tribunal was his real name. He was shown the application for review from the Court book, and identified the signature on that application, in Chinese characters, as a signature that he had given. He was shown his application to the Court and his affidavit in support. It will be recalled that those documents were in the name that the applicant has said is not his name. Interestingly enough, the signatures on those documents are hand printed in English characters.
The applicant agreed that he had signed that name in English characters. He reiterated to the Court that the name he gave to the Tribunal as his correct name was indeed his correct name, which was the name he gave to the Court today. However, all of his relevant documents, namely the application for a protection visa, the application to the Refugee Review Tribunal and the application to this Court and accompanying affidavit are in the name which the applicant has now given evidence is not his name.
The Court takes a very serious view of this matter. The Court is extremely critical of people who attempt to mislead it. Indeed, during the course of these proceedings I warned the applicant about the Court’s power to punish for contempt. The applicant told the Court that his application for a protection visa and his application to the Refugee Review Tribunal had been prepared by his migration agent, Song Tao Lu. However, he told the Court that his application to this Court, and affidavit in support, had not been prepared by his migration agent, but had been prepared by a Chinese friend called Long Lin, who has now conveniently returned to China.
I informed the applicant that I did not believe this explanation. I have informed the applicant that his evidence about these circumstances leads to serious doubts about his credibility. However, whilst a question mark remains about the applicant’s identity, I am not of the view that the evidence shows that this applicant before the Court today is not the applicant before the Refugee Tribunal whose decision the Court is required to review.
Whilst the applicant’s identity is still unresolved, and the Court in fact is in no better position than the Refugee Review Tribunal, in my view the Court should proceed with the application for judicial review.
The applicant applied for a protection visa on the basis that he has a well founded fear of being persecuted in China for reasons of his religion. The Tribunal considered his claims against China as his country of nationality on the basis that this was his claim for protection under the Refugees Convention. The Tribunal set out in some detail in its decision record the applicant’s claims to the department, and his evidence to the Tribunal.
I note that at page 102 of the Court Book, in paragraph 82 of the Tribunal decision, the Tribunal raised its concerns about the applicant’s application, not least its concerns about his identity and the Tribunal, from its account in the decision record, clearly set out to apply the procedure set out in s. 424AA of the Migration Act. The Tribunal said:
Towards the end of the hearing, pursuant to s. 424AA of the Act, the Tribunal gave to the applicant particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. The Tribunal informed the applicant of the relevance of the information and the consequences of the information being relied upon. The Tribunal informed the applicant that he may seek additional time to comment or respond to the information. The Tribunal informed the applicant that it had a number of concerns about his application. The applicant had provided a lot of false information in his application for a protection visa, and the applicant admitted that at the hearing, but there were also parts of his statement that were false, including the date he claimed he became a Christian and when he became sick. Although at the hearing he stated that he was now telling the truth, that information was also false. He had had the opportunity since arriving in Australia to reveal that information, and yet waited over six months before telling the Tribunal that his passport was false. The Tribunal informed the applicant that this might lead the Tribunal to conclude that his evidence is not credible and cannot be relied upon[3].
[3] See Court Book at page 102
The Tribunal noted the applicant’s comments in reply and said:
When asked if he wanted additional time, the applicant stated that he cannot say anything to this. The applicant stated that he used the other person’s name to apply and that was wrong, and today he is using his own name to apply. He had nothing further to add[4].
[4] See Court Book at page 102
The Tribunal signed its decision on 25 June 2008 and handed the decision down on 8 July 2008. A copy of that decision was forwarded to the applicant’s migration agent, Mr Song Tao Lu, on that date. The Tribunal affirmed the decision not to grant the applicant a protection (Class XA) visa.
The Tribunal considered the applicant’s claim that he had a well-founded fear of being persecuted for reasons of his religion, but did not accept that claim. The Tribunal made serious findings about the applicant’s credibility:
The reason that the Tribunal finds against the applicant in relation to these matters is that the Tribunal does not accept that he is a witness of truth. There were so many false statements by the applicant in his application for a protection visa, in his written statement and at the Tribunal hearing, that the Tribunal is unable to believe any of his evidence. The Tribunal is satisfied the applicant was prepared to fabricate and to embellish his material claims to invoke refugee protection obligations in Australia. Based on the adverse credibility findings the Tribunal is satisfied that there are reasonable grounds to reject all his material claims. The Tribunal finds that none of the applicant’s material claims to invoke refugee protection obligations in Australia are true[5].
[5] See Court Book at page 104
The Tribunal then went on to set out why it made those extremely strong adverse findings about the applicant’s credibility. The Tribunal did not accept his explanation for applying for a protection visa in a false name. Having comprehensively rejected the applicant’s claim on credibility grounds, the Tribunal found that it was not satisfied on all the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the convention, and affirmed the decision not to grant the applicant a protection (Class XA) visa.
The applicant commenced proceedings in this Court on 30 July 2008 by filing an application and an affidavit in support. Both of those documents, as I said earlier, were in the name that he had already admitted to the Tribunal was not his own. In his application he seeks a writ of certiorari quashing the decision of the Tribunal and an order requiring the Tribunal to re-determine the matter according to law by the different Tribunal member.
I indicated to the applicant that even if the Court were satisfied that jurisdictional error had been made out, and if the Court were minded to grant relief in terms of certiorari and mandamus, the Court would not remit an application to the Tribunal with a direction that a different Tribunal member be appointed. There is clear authority from the Full Court of the Federal Court in SZEPZ v Minister for Immigration & Multicultural Affairs[6] that it is doubtful that the Federal Magistrates Court has the power to make such an order about the constitution of the Refugee Review Tribunal on a rehearing. That is a matter for the principal member of the Tribunal and it is a matter of common knowledge that where applications are remitted to the Tribunal that the principal member does, in any case, appoint another Tribunal member to conduct a further review.
[6] [2006] FCAFC 107
In my view, the decision of the Full Court of the Federal Court in SZEPZ is binding upon this Court, and it is inappropriate for the Court to make the order in the terms that the applicant asks. In any event, before the Court gets to that stage, it has to be satisfied the jurisdictional error has been made out. The applicant sets out in his application three grounds:
(1)The Tribunal failed to consider the real chance of risk of being jailed if the applicant returns to his original country;
(2)It is not reasonable for the Tribunal to deny that I was illegally detained for three years from 2003 to 2006, that I was physically punished after a show trial;
(3)The Tribunal made the finding which is illogical.
The applicant has not filed any written outline of submissions. He told the Court that what he said to the Tribunal was all true, and he did not lie to the Tribunal. He took issue with the fact that the Tribunal did not accept his evidence and told the Court that he would be unable to return to China, his health was very bad as a result of having been persecuted by the Chinese authorities and he feared persecution if he were to return.
In dealing with the three grounds of judicial review that the applicant set out, I would agree with the submission of counsel for the Minister, Ms Clegg, that the grounds appear to be an attempt to seek merits review of the applicant’s claims, and they are generalised and amount to no more than bare assertions.
The first ground complains that the Tribunal failed to consider the applicant’s real chance of being jailed upon his return to China. This is, as has been submitted, a misconception of the real chance test. The fact is that the Tribunal did not accept the applicant’s account of his history in China, and it comprehensively rejected that claim on the basis of the applicant’s lack of credibility. It is well established that credibility decisions are a matter for the Tribunal, they are findings of fact, and so long as there is evidence upon which those findings can be made, there is no scope for intervention by the Court on judicial review. This is a matter that has been well established, including the decision of the Re Minister for Immigration & Multicultural Affairs ex parte Durairajasingham[7] per McHugh J at [67]. The applicant’s first ground fails.
[7] (2000) 168 ALR 407; [2000] HCA 1
The applicant’s second ground is a claim that it is not reasonable for the Tribunal that he had been legally detained for three years and was physically punished after a show trial. Of itself, this is not a ground of jurisdictional error. What it is a challenge to the Tribunal’s factual findings, and is no more than an attempt at merits review. It was open to the Tribunal to make this finding on the evidence that was before it. The applicant’s second ground fails.
The third ground claims that the Tribunal made a finding which is illogical. No particulars are provided to this claim and even if illogicality were a ground for establishing jurisdictional error, the lack of particulars would make it well nigh impossible to make such a finding. On a fair reading of the Tribunal decision, there is nothing illogical about it. The Tribunal did not believe the applicant’s claim. It made comprehensive findings about the applicant’s credibility and in my view the evidence before the Tribunal was of such a state that a credibility finding was open to the Tribunal.
Counsel for the Minister, Ms Clegg, raised with the Court a concern about whether there may appear to be a breach of s. 424A of the Migration Act going back to the issue of the applicant’s identity. The concern that was expressed, and quite properly so, if I may say so, was that the delegate’s decision referred to adverse information concerning the applicant’s original claimed identity. That information was as was set out at page 46 of the Court book, that information received from the Australian consulate in Guangzhou, China, showed that the person whose passport-sized photograph was attached to the visitor’s visa application was different from the applicant’s, and in other words, the visitor applicant was different from the protection visa applicant.
That would have been an issue if the applicant maintained his claim that he was the original person that he claimed to be. True it is that he maintained that claim before the delegate. However, at the Tribunal hearing the applicant told the Tribunal what he said was his real name and that the identity given on the passport and visa was not the applicant’s real identity. The information would most certainly have been adverse to the applicant had he maintained before the Tribunal that he was the person that he originally said he was; but he did not and the Tribunal accepted that he did not.
The end result was that the Tribunal still rejected his application on credibility grounds and it still found itself unable to make a definitive finding as to his identity. For that matter, the Court is in no better position than the Tribunal to make a definitive finding as to his identity, although I am inclined to believe that the name that the applicant told the Tribunal was his real name, which he told this Court was his real name, is more likely to be his real identity than the names on the applications.

In my view, there is not a breach of s. 424A of the Migration Act. The information was adverse to the identity of the person that the applicant originally claimed to be, but which he denied when he went to the Tribunal. Accordingly, on the authority of SZBYR v Minister forImmigration & Citizenship[8], I am of the view that that is not information adverse to the applicant that would lead to a finding of a breach of section 424A of the Migration Act.If I am wrong in this I would be of the view that relief should be refused on discretionary grounds in view of the serious concerns about the credibility of the information that the applicant has given to the department, to the Tribunal, and indeed, to this Court.
[8] (2007) 235 ALR 609; [2007] HCA 26
In my view, jurisdictional error has not been made out. In my view, the Tribunal decision is a privative clause decision and there are no grounds for relief in the nature of mandamus or certiorari. It is my view that the application should be dismissed.
I would comment, however, that the involvement of the applicant’s migration agent, Song Tao Lu, raises serious concerns in the mind of the Court. The fact is that the migration agent prepared documents that were not in the applicant’s real name and the applicant has now come along telling the Court the story that his application and affidavit to commence these proceedings were prepared not by the migration agent but by a friend who has now left the country. The applicant said this in the witness box, and I do not accept the truth of that statement. I have serious concerns about the involvement of this migration agent, and I direct that a copy of the Court’s decision is to be forwarded to the migration agent’s registration authority for that authority to investigate the involvement and activities of that particular migration agent.
The application will be dismissed with costs. In the circumstances, I think this is a suitable matter for a costs order. I accept the fact that there was some additional solicitor/client work that needed to be done, in fact, counsel’s advice needed to be obtained. The amount sought is $5550, which is above the amount provided by the scale. I will allow $5500.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 28 October 2008