SZOGL v Minister for Immigration

[2010] FMCA 562

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOGL v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 562

MIGRATION – Review of RRT decision – applicant a citizen of China who lived on borders of China and North Korea and claimed to have assisted North Koreans fleeing that country – where Tribunal did not accept that applicant had arrived in Australia on a false South Korean passport, in part, because applicant produced copy of a Chinese passport with the relevant exit stamp – whether Tribunal failed to consider applicant’s explanation for the inconsistency.

Applicant: SZOGL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 610 of 2010

Judgment of: Raphael FM

Hearing date: 26 July 2010

Date of Last Submission: 26 July 2010

Delivered at: Sydney

Delivered on: 26 July 2010

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 610 of 2010

SZOGL

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 19 April 2007 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 28 July 2009.  On 20 August 2009 a delegate of the Minister refused to grant a protection visa and on 25 August 2009 the applicant applied for review of that decision from the Refugee Review Tribunal.  The applicant attended a hearing before the Tribunal and provided it with certain documents.  On 24 February 2010 the Tribunal determined to affirm the decision not to grant the protection visa.

2. The grounds upon which the applicant claimed he was a person to whom Australia owed protection obligations were the Convention grounds of religion and political/imputed political opinion.  The applicant arrived in Australia on a South Korean passport.  He remained in this country without problems until 8 April 2009 when he was detained by officers of the Department of Immigration & Citizenship.  During his time in Villawood he was asked about his nationality and he revealed that he was in fact a national of the PRC who lived on the borders of China and North Korea.  In order to establish the truth of this statement he contacted friends in his home town and was provided with an extract of his Chinese passport.

3. The applicant told the delegate and the Tribunal that he has relatives in North Korea and he visited them regularly from 1992 to 2000 and also travelled to North Korea for business between 2000 and 2002.  In 2002 he was asked for the first time whether he could help a family fleeing North Korea into China and he did so.  He was in contact with a church missionary and through that gentleman assisted a family of six to escape in June 2002.  Unfortunately, these people were later caught and the applicant told that he was detained for approximately six months and subjected to a RMB 10,000.00 fine.

4. The applicant did not undertake any further activities of this type until 2006 and 2007 when he was contacted by an American missionary who asked him to assist.  He agreed to do so and he helped some people in September 2006 and three further persons in February 2007.  In March 2007 he learned that the PRC authorities had arrested some church missionaries and he feared that he would be revealed as assisting them.  So he arranged to leave for Australia, having obtained a false South Korean passport.

5. The applicant also told that his wife was a Christian and that he was also interested in the religion to the extent that whilst he did not go to Church in China he had been going to Church in Australia for approximately two years.  He told the Tribunal that his wife had brought home some North Koreans who had been attending Bible study courses and he put them up overnight in his home before transferring them to a local town.  This was a matter that was not mentioned in his PVA.  The applicant feared that if he returned to China he would be arrested for his activities.

6. The passport that the applicant produced from PRC or, more accurately, the extract from the passport which he produced, indicated that he had left the PRC through Dalian, on the same day that he purported to have left the country through using his South Korean passport. The applicant had not produced the South Korean passport which he used to enter Australia so the Tribunal was not able to ascertain whether that document indicated where he had departed from.  The Tribunal questioned the applicant upon his claims and having considered his evidence accepted that he was a Chinese businessman who had been involved in trade with North Korea and that he had had some association with the smuggling of North Korean refugees into China, but it found that much of his evidence was lacking in candour and that he had not provided the Tribunal with the fullest possible information. As a result, it was unable to determine with confidence whether the applicant’s motivations for any assistance that he did give to North Koreans were altruistic, commercial or a mix of these and other factors.

7. The Tribunal was prepared to accept that the applicant had some involvement in helping North Koreans with overland transport and short-term lodgings in or near his home, certainly in 2002 and possibly on some occasions after that.  It accepted that it was plausible that the applicant may have been detained for these activities although it was not convinced that that had happened.  It took all these matters into consideration and concluded that it did not believe that there was any real chance that the applicant would be involved in the type of activities that he had described in the future.

8. The Tribunal also came to the conclusion that the applicant could not satisfy it that he had a well-founded fear of persecution.  It did this for three reasons, which it describes at [CB 96 – 99].  The first related to the passport and travel.  The Tribunal concluded that the applicant’s evidence concerning his passports involved inconsistencies which indicated that he could not be regarded as a witness of truth.  In particular, he had at first denied having a PRC passport when, in fact, he did have one; but perhaps more importantly, the Tribunal found that he had used the PRC passport to depart from China, given the exit stamp that was in it and it believed that, having left the country, the applicant then swapped the PRC passport for the South Korean one and entered Australia on the South Korean passport. 

9. The Tribunal found that in these circumstances the applicant had no real fear of problems in China because he was able to obtain and keep a passport, to travel upon it and in particular to leave the country for Australia.  The Tribunal rejected the argument put up by the applicant’s adviser, that he would not have sought a copy of his passport which bore this exit stamp that was damaging to his case if, in fact, the situation was that he had actually utilised it.  In other words, the applicant was suggesting that the stamp had been placed into his passport by others.  The Tribunal also relied upon the fact that the applicant had not applied for a protection visa from April 2007 until July 2009 as evidence that he did not have a subjective fear of being returned to China.  It did not accept his explanation that he was not aware of protection availability in this country. 

10. The Tribunal noted that the applicant was a businessman who had had considerable dealings with immigration matters in his own country; that he had had resources to arrange such essentials as accommodation and employment in Australia and that, given his contact with brokers and the common knowledge that exists among the Chinese community in Australia, this explanation was not tenable. The Tribunal also expressed some concern about the evidence given by the applicant concerning his family and friends in China and, in particular, his wife’s activities and concluded that the PRC authorities had arrested missionaries and refugees in March 2007 and that this was what prompted him to go into hiding and to arrange to leave the country. 

11. It rejected his claims to fear harm from North Koreans because:

    “Having rejected the applicant’s claim to fear persecution for any reason connected with his past links with North Koreans and activists, the Tribunal does not accept that he is at risk from North Korean interests for these reasons.” [82] [CB 99]

12. The Tribunal considered the applicant’s involvement with Christianity:

    “Given its serious concerns about the applicant’s credibility, his equivocal references to Christianity, and the close nexus between this and his now-dismissed, ongoing involvement with the missionaries, the Tribunal does not accept that the applicant or any family members are Christian.  It finds that he has no religious or other profile that could attract adverse attention from the PRC authorities, or anyone.” [83] [CB 99]

13. The Tribunal considered whether there may be some problems still awaiting the applicant if he was returned to China, from his activities in 2002 but came to the view that this was unlikely.  It felt that the applicant’s involvement was pragmatic and short lived, and he had no sustained interest or commitment towards the people. 

14. The Tribunal does not specifically refer to the applicant’s attendance at Church in Australia but one can infer from the fact that it does not accept that he was a Christian or that his wife was a Christian that, if the applicant had attended Church in Australia, it was satisfied that he did so only for the purposes of strengthening his claim for refugee status and, as such, it would be disregarded for the purposes of considering this application. 

15. On 22 March 2010 the applicant filed an application for review of the Tribunal’s decision in this Court.  There were two grounds of application.  The first was:

    “The Tribunal found [at paragraph 77] that the applicant’s delay in lodging the protection visa application is strong evidence that he does not genuinely fear persecution in China.  The Tribunal fell into jurisdictional error in making this finding.”

    The applicant does not particularise how the jurisdictional error occurred in making that finding; it seems to me to be a finding of fact that was available to the Tribunal on the evidence and materials before it. 

16. The second ground was:

    “The Tribunal found [at paragraphs 74 and 76] that the applicant used his Chinese passport to depart China, rather that a Republic of Korea passport, as the applicant claimed.  By making this finding, the Tribunal failed to give sufficient consideration to the applicant’s claims that the passport was, for a period of time, in the prosession [sic] of a broker, and therefore the stamp could have been forged by the broker.  The Tribunal fell into jurisdiction error in making the finding.”

    This was a matter that was raised before the Tribunal by the applicant’s adviser and is dealt with, as the applicant says, at [76] of the Tribunal’s decision record.  It can therefore not be said that it was not considered by the Tribunal. It was and the Tribunal came to a conclusion about it.  It rejected the possibility that the exit stamp was forged or placed there by the broker.  There is nothing illogical or unreasonable in coming to that conclusion.

17. Before me today, the applicant made a number of lengthy statements which really only went to the merits of his case.  He told me that he had told the Tribunal the truth and that he did have a genuine fear of returning to China.  But, of course, this Court is not hearing an appeal from the Tribunal’s decision;  it is only reviewing it for the possibility of jurisdictional error in the way in which the decision was reached.  The Court is unable to take into account the fears that the applicant has, or what he told me was new evidence about arrests of friends in his home town. 

18. I am unable to see where the Tribunal may have fallen into jurisdictional error in the way in which it reached its decision in this case.  I must dismiss the application and order that the applicant pay the first respondent’s costs which I assess in the sum of $4,800.00. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  30 July 2010