SZMWO v Minister for Immigration

[2009] FMCA 353

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMWO v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 353

MIGRATION – Review of decision of RRT – where applicant travelled to Australia on a false passport – where Tribunal is not satisfied applicant is credible.

Migration Act 1958, s.424A

SZBYR v Minister for Immigration [2007] HCA 26

Applicant: SZMWO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2754 of 2008

Judgment of: Raphael FM

Hearing date: 15 April 2009

Date of Last Submission: 15 April 2009

Delivered at: Sydney

Delivered on: 15 April 2009

REPRESENTATION

For the Applicant: In person

Counsel for the Respondent: Ms R Francois

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent's costs assessed in the sum of $4,850.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2754 of 2008

SZMWO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who arrived in Australia on 3 February 2008.  He applied to the Department of Immigration and Citizenship for a protection (class XA) visa on 17 March 2008.  On 2 June 2008 a delegate of the Minister refused to grant a protection visa and on 4 July 2008 the applicant applied to the Refugee Review Tribunal for a review of the delegate's decision.

2. Up until the time the applicant attended the hearing before the Tribunal, but not at that hearing, the applicant was represented by a migration agent.  The applicant attended the hearing that took place on 9 September 2008.  On 16 September 2008 the Tribunal determined to affirm the decision under review and handed that decision down on 25 September 2008.

3. The applicant's claim to be a person to whom Australia owed protection obligations arose out of what he alleged to have been his treatment as a labourer in China.  The applicant told how in about 2005 he went, together with some other villagers, from his home town to Xunyang in Shaanxi Province.  He joined a construction team known as the 15th Bureau building a railway tunnel.  He was due to be paid wages and living expenses and for the first year of his work this occurred.  But in the second year the construction company paid no wages, only a very small living away from home allowance.  In March 2007 the applicant was told that his father was suffering from cancer of the oesophagus.  He went to the construction company and he asked whether he could be paid the money that he was owed so that he could send it home and help his father obtain proper medical treatment.  The construction company declined.  The applicant asked to return home to see his father but this was declined as well.

4. In July 2007 as his father's condition deteriorated the applicant was again refused assistance by the construction company so he left the site and went back home.  His father died in August.  He returned to the construction company in September 2007 but was told that he had been dismissed and all his outstanding benefits were confiscated.  The applicant then arranged a protest against the actions of the construction company that some members of his family and other persons who he knew attended at the headquarters of the 15th Bureau in Luoyang City in Henan Province.  The applicant claimed that he thereby came to the attention of the PSB who arrested and detained him for about a month on the grounds that he was causing problems of a political nature around the anniversary of the Communist government and the 17th National Congress of the Communist Party.  He claimed that he was tortured in detention and forced to admit to anti-government feelings.

5. After the month in custody he was returned to the construction site where he was made to work in very harsh conditions for no pay.  In December 2007 he escaped with the help of people around the site and went to Shenzen where he said he had a friend who was in the travel business.  He told that he had saved the life of this friend and that was why the friend agreed to help him, apparently for no charge.  The friend obtained a false passport for the applicant which he gave to him on the day that he was due to leave and the applicant arrived in Australia on this false passport which contained a photograph of the applicant.

6. The applicant produced to the Tribunal an identity card in the name he claims is his own and which appears on the decision record of the Tribunal.  The Tribunal accepted, albeit reluctantly, that the applicant was who he said he was and that he had arrived in Australia on a false passport.  The Tribunal questioned the applicant on his story.  The questioning revealed certain inconsistencies and some explanations for that the Tribunal indicated it found implausible.

7. The Tribunal noted that the applicant applied for entry into this country by way of a business visa application.  At first the applicant agreed that he had signed the application but later said that the signature was not his when the Tribunal showed him the documents. The Tribunal expressed some reservations about the application and the manner in which the applicant's photographs seemed to be attached to both the business visa application and the passport.  The applicant explained this by saying that the friend had taken photographs of him whilst they were together in the construction camp and had manipulated them on his computer.  The Tribunal questioned the applicant about his family and the communications which he had with them.  The applicant had told how his family had been continually harassed by the PSB.  The Tribunal pointed out that in his responses he had only indicated that he had spoken to his family approximately twice. 

8. In its findings and reasons the Tribunal accepted that the applicant was the person he said he was and that he had travelled to Australia on a false passport but did not accept that he had engaged in employment as a construction worker or that the events which he told of had occurred.  It did not consider the applicant a witness of truth.   In relation to the business visa application the Tribunal said at [44] at [CB 116]:  

   “The Tribunal accepts that the signature on the application for business visa is not that of the applicant and that he himself did not make that application.  The Tribunal draws no conclusion adverse to the applicant from the business visa documents.”

9. The Tribunal indicated that it did not find it plausible that the applicant did not know that his friend was going to get him a false passport. It noted that he had given what are described as "confused and at times contradictory evidence" about his work and his wife's work.  The Tribunal found it difficult to understand how, on the applicant's evidence, his family had managed to survive on the very small amount of money that he claimed he had received working for the construction company and felt the part of his story about his escape from the construction site and the method of leaving Australia were contrived. The Tribunal concluded that:

   “There is no plausible evidence before it that the applicant has suffered or will suffer persecution because of his political opinion, his imputed political opinion, because he is a member of a particular social group or for any Convention reason, from Chinese police/authorities or anyone else in this country, either now or in the reasonably foreseeable future, if he returns to China.”

10. On 23 October 2008 the applicant, who claims in this court to speak no English, filed an application under the Migration Act 1958 (the “Act”) which contained three and a half pages of closely argued grounds of application written in the English language.  I assume that this document was prepared for him by a "friend" whose name and qualifications are, regrettably, hidden from us. I accept, however, that they represent the applicant's views about the Tribunal's decision. 

11. The first ground of application appears to me to be no more than a statement of some of the Tribunal's findings and warrants no further comment as a ground.  The second ground sets out why the Tribunal came to the decision that it did and which is set out in the first ground.  Against that is not in itself a ground of an application. It is only in ground three that the applicant commences his complaint. He says that the Tribunal failed to act properly and according to law when it made the finding adumbrated above.  In ground four he argues that the Tribunal failed to deal with an integer of his claim namely that his friend organised his trip overseas including getting the false passport and making the application in relation to the visa on the false passport.

12. These are matters that the Tribunal dealt with in some detail in any event it did not draw any adverse conclusions from the fact that the applicant had not personally signed the business visa application form. Ground five is a further statement of what the applicant says passed between him and his friend.  It is not in itself a ground of application and this also is the case for ground six which continues the story commenced in ground five.  In ground seven the applicant states:

    “The key issue is that the Tribunal failed [to] deal with an integer of my claim; and thus it failed to make a correct finding in my case.”

13. I assume this refers to the facts outlined in paragraphs four to six and as I have said the Tribunal did deal with these matters and whilst it may have come to conclusions that were adverse to the applicant that is not in itself a ground for review.  At ground eight the applicant argues:

    “Secondly, the Tribunal's finding was unreasonable in the Wednesbury sense.”

14. It then sets out a section from the Tribunal's decision found at [45] [CB 116].  At paragraph 9 of the application the applicant argues that the Tribunal does not have even a basic knowledge of the actual situation in China.  This whole paragraph is argumentative and can only be seeking merits review which this court is unable to provide. The argument continues at paragraphs 10 and 11.

15. At paragraph 12 the applicant again quotes from the Tribunal's decision at [46] of [CB 117] and argues that the Tribunal failed to give good reasons why it made that finding about his escape, arguing that the Tribunal failed to make a genuine attempt to consider the applicant's claims independently and fairly.  I am not satisfied that the applicant has shown me that the Tribunal made anything other than a genuine attempt to consider his claims independently and fairly.  The fact that the Tribunal has come to a conclusion unsatisfactory to an applicant is not in itself a ground for judicial review. 

16. In paragraph 14 of the application the applicant argues that the Tribunal failed to consider the evidence properly and fairly and indicated that the Tribunal had raised two questions, the first being how many times he had contacted his family in China and how did he know that his family in China was being harassed.  He provides the answer to both these questions in the application. The paragraph in the Tribunal's decision that the applicant is complaining about is [47] of [CB 117] where the Tribunal says:

    “The Tribunal considers that the applicant changed his evidence to answer the Tribunal's questions about concerns it had with his claims about his family being harassed, because of his own position with the authorities, in China.”

17. The applicant argued that he did not change his evidence and that the Tribunal had not considered his evidence fairly.  Whilst it seems to me open to the Tribunal to have come to the conclusions it did about the applicant's evidence on this point even if it was wrong it would seem that its error was one of fact within jurisdiction rather than one of law.  In any event, without the benefit of a transcript I have only the decision record to guide me as to what was said.

18. Finally, the applicant claims that the Tribunal failed to comply with its obligations under s.424AA or s.424A(1) of the Act by failing to provide him with particulars of the information that the Tribunal considered as a reason or part of the reason for affirming the decision under review. He does not particularise what the information is. When I first read the Green Book I assumed that this was a claim of the type frequently made. The Tribunal did not provide the applicant with a running commentary upon why it was not believing him. The Tribunal's disbelief of the applicant's evidence arising from inconsistencies within it is not information; SZBYR v Minister for Immigration [2007] HCA 26 at [18]. Section 424A is not intended to create a back door route to merits review of the credibility findings made by the Tribunal SZBYR [21]. However, in her helpful written submissions Ms Francois suggests that the applicant might be referring to the use the Tribunal made of the application for the business visa. She says:

    “During the hearing the Tribunal questioned the applicant about whether a photograph and signature on his purported business visa application to travel to Australia were his. (CB 114 [32]). However the Tribunal concluded that it accepted the applicant's evidence in relation to that document and drew no adverse conclusions. Accordingly, there is no breach of s.424A: Applicant VEAL of 2002 v MIMIA & Anor (2005) 225 CLR 88 at [12]; see also SZKLG v MIAC (2007) 164 FCR 578.”

19. In the latter case the Full Bench said at [33]:

    “The obligation to proceed pursuant to 424A arises only if the Tribunal forms the opinion that particular information would be the reason, or part of the reason, for affirming the relevant decision.  The conditional nature of this obligation reflects the fact that the Tribunal must consider the question in advance of its decision, considering the information upon which it would act, should it decide to affirm the relevant decision.”

    The information relating to the business visa application is not information that would be the reason or part of the reason for coming to the decision under review. If I am wrong about the above matter and the information is such that the Tribunal should have given the applicant the requisite notice under s.424A or else complied with the provisions of s.424AA at the hearing then I am of the view that I can exercise my discretion not to grant relief in respect of the failing because failure to comply did not result in any practical injustice to the applicant. It is to be remembered that the Tribunal put all these matters to the applicant at the hearing and he gave his explanation which the Tribunal accepted and no adverse conclusions were drawn. I cannot see that any useful result would inure from the granted relief on this ground.

20. Before me today the applicant said that he thought that the Tribunal had rejected his application because it thought that he used a passport and a false name. He said that his friend had obtained the passport because his name was on the wanted list and he had to use a false name.  He said that his friend only gave him the passport on the day he left and he did not know there was going to be a false passport before that.  These were both matters that were raised with the Tribunal.  To my mind a careful reading of the Tribunal's decision would indicate that it was not the use of the false passport that brought the Tribunal to its conclusion that the applicant did not have any convention based grounds for claiming that he was being persecuted in China.  The Tribunal came to that conclusion because it was unable to be satisfied that the applicant was telling the truth.

21. The applicant then raised the fact that the Tribunal had misunderstood how his family obtained some money and suggested that the Tribunal had misunderstood that his wife was unable to farm after 2000 when in fact she was able to farm until 2005. This matter is discussed at [45] [CB 116-117]. The Tribunal's point is not that there was no opportunity to farm after 2000 but that the applicant had given contradictory and confused evidence concerning this aspect of the matter.

22. For the reasons which I have given above I am unable to assist the applicant by finding that the Tribunal fell into jurisdictional error in the manner in which it came to its decision in this case. I dismiss the application.  I order that the Applicant pay the First Respondent’s costs which I assess in the sum of $4,850.00.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: