SZBIV v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2006-02-09|Before: Branson J

introduction 1 The applicant wishes to appeal against a judgment of the Federal Magistrates Court pronounced on 26 May 2005. His right to do so depends upon his being able to file and serve a notice of appeal within a time period prescribed by O 52 r 15 of the Federal Court Rules. 2 The applicant did not file and serve a notice of appeal within twenty‑one days after 26 May 2005 (O 52 r 15(1)(a)(i)). The Federal Magistrates Court was not invited to, and did not, fix any later date for that purpose (O 52 r 15(1)(a)(iii)). Nor did the applicant apply to this Court within the period of twenty‑one days after 26 May 2005 for further time within which to file and serve a notice of appeal (O 52 r 15(1)(b)). The applicant has therefore been obliged to invoke O 52 r 15(2) which authorises this Court at any time 'for special reasons' to grant him leave to file and serve a notice of appeal. 3 For the reasons set out below I am not satisfied that this is a case in which departure from the ordinary rule according to which a notice of appeal is to be filed and served within a time period prescribed by O 52 r 15(1)(a) is justified (see Jess v Scott (1986) 12 FCR 187). Indeed, I am satisfied that it would be contrary to the public interest for any discretionary relief to be granted to this applicant for the purpose of allowing him to pursue further the application made by him for a protection visa.

background 4 The applicant arrived in Australia from the People's Republic of China ('the PRC') on 17 May 2000. He applied for a protection visa, using a name which he now acknowledges is not his true name, on an application form which he signed in Chinese characters on 12 November 2000. The application contains an acknowledgment that the applicant had received help completing the form from a registered migration agent, Pricilla International Co Pty Ltd ('Pricilla'). Accompanying the applicant's application for a protection visa is a further document, again signed by the applicant in Chinese characters, by which he appointed Pricilla to act as his agent in dealings with the Department of Immigration and Ethnic Affairs ('the Department'). 5 Annexed to the application is a three page statement in English ('the Statement') which is also signed by the applicant in Chinese characters. It is reasonable to assume that an officer or employee of Pricilla had some involvement in the preparation and completion of all of the documents associated with the applicant's application for a protection visa, including the Statement. It is necessary to refer in some detail below to aspects of the Statement. 6 The Statement reveals that the applicant's claim to be entitled to a protection visa was advanced on two principal bases. The first basis was that he had been one of the demonstrators in Tiananmen Square at the time of the suppression by the army in 1989 of the student democratic movement. The second basis was that he is a practitioner of Falun Gong and was, while he was in the PRC, the major organiser and editor of a publication called 'Truth of the Falun Gong'. 7 The Statement contains the assertion that at the end of May 1989 the applicant travelled to Beijing on a business trip in the company of one Wang and that they together joined the Tiananmen Square demonstration. The Statement goes on to assert that the applicant sought to fight against the soldiers and that Wang was fatally injured when he placed his body between the applicant and a soldier who had fired at the applicant. The Statement explains the applicant's friendship with Wang in the following paragraph: 'After my graduation from a middle school in Liaoyang, I was employed by Liaoyang Golden Star Promotion Company, where I got to know WANG Dong Chen, a smart and handsome young man. WANG was graduated from Beijing Industry University. He was a computing technician of the company. Owing to similar ideologies and similar interests, WANG quickly became my good friend.' 8 The Statement explains the applicant's initial involvement with the Falun Gong movement in the following passage: 'In July 1993, I got to know another young man ZHANG Liang who was a pious believer of Falun Gong. Assisted by ZHANG, I finally became a member of Falun Gong. During the first two years, I attended a training class for Falun Gong. The training class was conducted by Falun Da Fa Research Centre of Liaoyang Qigong Association. ZHANG Liang, and LI Zhi were major teachers.'

reasons for decision of the refugee review tribunal 9 A transcript of the hearing before the Refugee Review Tribunal ('the Tribunal') was received in evidence before this Court on the application for an extension of time within which to file and serve a notice of appeal. No transcript of the hearing was tendered before the Federal Magistrates Court. The transcript records, amongst other things, the following exchange between the Tribunal member and the applicant: 'APPLICANT: This is not my passport because at that time I was on the black list, it's not possible for me to get a passport and therefore I used other people's passport just replacing with my photo. TRIBUNAL MEMBER: This passport doesn't look as if it's been tampered with in any way. You are saying it's a fake passport? APPLICANT: It's not a fake one. TRIBUNAL MEMBER: You are saying it's been tampered with, it actually belongs to somebody else but you put your own photograph in it? APPLICANT: No. This passport is a passport which is from the authority but they printed this passport, but when a photo is being stuck on the passport it was my photo which was put on the passport. … TRIBUNAL MEMBER: My question is, my understanding of what you said when I asked you about your passport is that the passport didn't belong to you, you said. You said they put your photograph on later. Now I'm trying to find out exactly how this happened. When you say it was not your passport and they put your photograph on later, are you implying that when the passport was being prepared the authorities preparing it didn't know it was supposed to be used by you and that your people then put the photograph on a pre‑existing passport? APPLICANT: No. What happens is one of our learners who learn to practice Fa Lun Gong has connection with the PSB and when the passport was printed it was not printed by those back shops, it was only organised by relatively small potatoes and it was when they have printed and before the issuing they already put my photo there.' 10 The reasons for decision of the Tribunal state that the applicant claimed to have travelled to Australia on a passport that had been 'doctored' so as to contain his personal details and his photograph. The Tribunal obtained advice from the Department's Document Fraud Investigation Unit that the applicant's passport was a genuine PRC passport and showed no evidence of tampering or alteration. 11 By letter dated 6 November 2001 the Tribunal wrote to the applicant advising him as follows: 'The Tribunal has investigated your claim that your passport is false and that it had been altered to have your photograph pasted in unofficially. The Department's Document Fraud Investigation Unit has examined the passport and has found that the passport is genuine and shows no sign of having been altered or tampered with.' 12 The applicant's letter of response to the above letter is in English and signed by the applicant. The letter points out that the applicant has no information about the examination methodology adopted by the Department's Document Fraud Investigation Unit and concludes: 'Again, I like to emphasize that my passport is false and that it had been altered to have my photograph pasted in unofficially.' 13 The Tribunal found that the applicant's evidence lacked credibility. It was not satisfied that the applicant left the PRC using a 'doctored' passport and concluded that he was not a fugitive wanted by the PRC authorities. Nor was the Tribunal satisfied that the applicant has any meaningful link with the Falun Gong movement either in Australia or overseas. Indeed the Tribunal expressed its firm view that the applicant had 'invented a Falun Gong‑linked persona to launch an application for a protection visa'. However, while expressing 'grave doubts' about whether the applicant was even a member of Falun Gong, the Tribunal was willing to entertain the possibility that he was 'an ordinary Falun Gong practitioner'. Even on this basis the Tribunal did not consider that the applicant faced a real chance of harm in the PRC. It expressed the view that the applicant's practice of Falun Gong would not be compromised by his refraining from public display of his Falun Gong practice. 14 The Tribunal affirmed the decision of a delegate of the first respondent ('the Minister') not to grant the applicant a protection visa.

decision of the federal magistrates court 15 The Federal Magistrates Court dismissed the applicant's application for judicial review of the decision of the Tribunal. The learned Federal Magistrate took the view that the Tribunal had not believed the claims advanced by the applicant in support of his claim to be entitled to a protection visa, including his claim to be a Falun Gong practitioner. 16 As mentioned above, no transcript of the hearing before the Tribunal was tendered in the Federal Magistrates Court. Nor did the applicant, who had some legal assistance before the Federal Magistrates Court, make any complaint in the Federal Magistrates Court concerning the way in which the Tribunal understood his evidence concerning his passport.

Draft Notice of Appeal 17 The draft notice of appeal upon which the applicant, by his counsel, indicated that he would rely should he be granted the extension of time sought by him raised three grounds of appeal. The first proposed ground of appeal alleges that the Tribunal constructively failed to exercise its jurisdiction in relation to a critical element of the applicant's claim. The particulars of this ground reveal that it is solely concerned with the alleged failure of the Tribunal to understand the case of the applicant with respect to the issue of his passport. The applicant is seeking an extension of time within which to institute an appeal from the judgment of the Federal Magistrates Court. This ground of appeal must therefore be understood as an assertion that the Federal Magistrates Court erred in not finding that the Tribunal erred in the way alleged. As it was not argued before the Federal Magistrates Court that the Tribunal erred in this regard, the applicant's ability to rely on this ground of appeal is dependent on a finding by this Court that it is expedient in the interests of justice to allow him to rely on the ground (see NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134). 18 The second proposed ground of appeal raised by the draft notice of appeal alleges that the Tribunal erred in a manner amounting to jurisdictional error in the way in which it gave consideration to whether the applicant would face a real risk of persecution as an ordinary practitioner of Falun Gong should he be required to return to the PRC. As in the case of the first of the proposed grounds of appeal, this proposed ground of appeal must be understood as an assertion that the Federal Magistrates Court erred in not finding that the Tribunal erred in the way alleged. 19 The third proposed ground of appeal raised by the draft notice of appeal contends that the Federal Magistrate erred in declining to consider an affidavit filed by the applicant in the Federal Magistrates Court containing information about the applicant's association with the Falun Gong movement in Australia. The Federal Magistrate refused to consider the affidavit on the basis that the evidence contained in it had not been before the Tribunal.

Oral Evidence of the Applicant 20 Critical to the first proposed ground of appeal is the applicant's contention that the Tribunal misunderstood his case in relation to the issue of his passport. In support of this proposed ground the applicant sought to rely on his evidence before the Tribunal (see [9] above). This evidence was, as can be seen from [12] above, arguably inconsistent with the letter which the applicant signed which asserted that his passport was false and had been altered to have his photograph pasted in unofficially. Although the applicant had filed an affidavit in support of his application to the Court, the applicant had not placed affidavit evidence before the Court explaining how he came to sign a letter the content of which, as he wished to assert to the Court, is contrary both to his evidence before the Tribunal and to the true position. After I raised this matter with counsel for the applicant, leave was requested and granted for the applicant to give oral evidence. 21 The applicant gave oral evidence with the assistance of an interpreter. He explained that he had received assistance from a migration agent called 'Harry'. He said that Harry asked him to sign the letter which asserted that his passport was false and had been altered to have his photograph pasted in unofficially but did not explain the contents of the letter to him. 22 Under cross‑examination the applicant volunteered that: 'Normally when he [ie Harry] asked me to sign some document he would never explain it to me, just ask me to sign it.' 23 As I was anxious to understand the true import of the applicant's answers concerning the letter to the Tribunal I initiated the following exchange with the applicant: 'HER HONOUR: Looking back now do you think you would have put your signature on a letter without knowing what was in the letter? THE INTERPRETER: It is true I did not know any contents of this letter but I signed it. HER HONOUR: You speak of this letter in particular. Is that because you remember signing this letter? THE INTERPRETER: All of this document, every document, when he need my signature Harry will inform me to go to his office and sign it. So when he asked me to sign it then I signed it. HER HONOUR: And so you didn't concern yourself with the content of the documents that you signed, is that right? THE INTERPRETER: Yes, that's correct.' 24 Counsel for the respondents then drew the applicant's attention to the Statement and asked him certain questions about its preparation. As I was concerned that cross‑examination of the applicant in late 2005 concerning the content of a document in English which was apparently prepared in November 2000 might be unfair, I asked the applicant if he knew what was written in the Statement. His answer suggested, surprisingly, that the Statement had not been read to him in his own language before he signed it in November 2000. The applicant confirmed that this was so. The following exchange between the applicant and me ensued: 'HER HONOUR: Mr Applicant, let me ask you this. Do you know a person called Wang Dong Chen? THE INTERPRETER: Yes, I know him. HER HONOUR: What can you tell me about him? THE INTERPRETER: Mr Dong Chen Wang who he is a leader of Falun Gong. HER HONOUR: Can you tell me anything else about him? Do you know, for example, whether he holds any university qualifications? THE INTERPRETER: I'm not sure. HER HONOUR: Where did you first meet him? THE INTERPRETER: The first time I met Mr Wang it was in a park and at that time he was exercising Falun Gong. I met him in the park. HER HONOUR: Do you know what his occupation was? THE INTERPRETER: No, I don't know his occupation. HIS HONOUR: All right. Do you know a man called Zhang Liang Z-h-a-n-g which is a family name L-i-a-n-g? THE INTERPRETER: Yes, I know him. HER HONOUR: When did you first meet him? THE INTERPRETER: It was more than 10 years ago. HER HONOUR: But approximately. THE INTERPRETER: So I could not recall when I met him the first time. HER HONOUR: Approximately when? THE INTERPRETER: 1993 to 1994. HER HONOUR: And in what circumstances did you meet him? Please interpret what the witness said. THE INTERPRETER: He said, your Honour you asked me under what circumstances you know Johnny and it looks like through Dong Chen Wang I met Johnny.' 25 I thereupon adjourned the hearing to allow the applicant's legal advisers to give consideration to the significance of the applicant's answers. With the consent of counsel for the respondents they were authorised to speak with their client during the course of the adjournment notwithstanding that his cross‑examination was not complete. Ultimately, on the application of the applicant the hearing was adjourned for ten days. 26 On the resumed hearing each party requested that I complete the hearing. The applicant was not further cross‑examined. Nor was he re‑examined.

Consideration of the Oral Evidence of the Applicant 27 As [7] above reveals, the Statement identifies Wang Dong Chen as a person who sacrificed his life to save the applicant. I reject as implausible any possibility that, if what is said about him in the Statement is true, Mr Wang is a person of so little importance to the applicant that he could have, since November 2000, forgotten important details about him and how they met. Mr Wang is described in the Statement as a graduate of Beijing Industry University and a computer technician. The Statement asserts that the applicant met Mr Wang at the Liaoyang Golden Star Promotion Company and that the two of them became good friends earlier than 1989. The Statement further asserts that Mr Wang died not long after 4 June 1989; that is approximately 4 years before the month which the Statement gives as the month when the applicant first met Zhang Liang. Moreover, the Statement asserts that it was Mr Zhang who introduced the applicant to the practice of Falun Gong. The Statement contains no reference to any involvement by Mr Wang with Falun Gong. 28 It is impossible to reconcile the oral evidence of the applicant with the contents of the Statement. He was not re‑examined with respect to any aspect of his oral evidence. Although I entertain serious doubts about the credibility of the evidence of the applicant which is reproduced in [24] above, I am satisfied that it reveals the falsity of critical aspects of the Statement. Those aspects include the circumstances in which the applicant came to be involved in the Tiananmen Square demonstration, his experience during that demonstration and the circumstances in which he became a practitioner of Falun Gong. 29 I find that the Statement is false in material particulars. It may be, although I do not find it necessary to so determine, that the Statement is wholly untrue. As mentioned above, the applicant concedes that the name in which the application was made is not his true name although he says that it is the name that he has used since his arrival in Australia. I conclude, on the basis of the applicant's oral evidence, that he was in November 2000 and has remained, at the least, reckless as to the accuracy of the Statement. 30 Understandably, the applicant did not argue that the application for a protection visa which was made with his authority and signed by him, albeit in a false name, was not a valid application (see NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199). 31 I conclude that the applicant's application for a protection visa constituted an attempt to practise deception on the Minister. I am satisfied that he knew that the application had been made in a name that was not his true name. I am further satisfied that the applicant either knew that the Statement was false in material particulars or alternatively took no steps to ensure that the Statement was accurate. The applicant's application to the Tribunal was similarly pressed on a false basis as was his appeal to the Federal Magistrates Court. It was understandably not suggested that the applicant was not throughout aware that his true identity and the contents of the Statement formed critical aspects of his application for a protection visa.

conclusion 32 The applicant seeks discretionary relief from this Court. In NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs the Full Court declined to grant discretionary relief to an appellant who had attempted to practise deception on the Minister noting at [14] that: 'It is contrary to the public interest for any encouragement to be given to conduct of the type engaged in by the appellant.' 33 In my view, this is also a case in which the public interest requires that discretionary relief be denied to the applicant. The evidence does not support any suggestion, and it was not so submitted, that what the applicant sought to do was simply, in the words of Shakespeare, '[to] gild refined gold, to paint the lily' (see King John Act IV Scene II). The applicant's application for a protection visa does not merely exaggerate the applicant's experiences in the PRC. The applicant applied for a protection visa using a name that was not his own. As mentioned above, I am satisfied that he did this knowingly and that he has either known throughout the time that he has asserted an entitlement to a protection visa that the contents of the Statement are false in material respects or alternatively that he has been recklessly indifferent concerning the accuracy of the Statement. 34 Moreover, if the applicant were to be allowed to appeal from the judgment of the Federal Magistrates Court, it is unclear what claims it will be asserted that the learned Federal Magistrate should have regarded as the legitimate subject matter of the review conducted by the Tribunal. 35 The application will be dismissed with costs. 36 I consider it appropriate to record that my above findings are findings concerning the conduct of the applicant. Neither Pricilla nor the migration agent whom the applicant called 'Harry' was a party to this application. I cannot know what evidence might have been given had 'Harry', or any other representative of Pricilla, been called to give evidence. However, the evidence which was given on this application is, in my view, sufficient to warrant further investigation by those responsible for the registration of migration agents. I certify that the preceding thirty‑six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate: Dated: 9 February 2006 Counsel for the Applicant: I Archibald

Solicitor for the Applicant: Michaela Byers

Counsel for the First and Second Respondent: J Smith

Solicitor for the First and Second Respondent: Clayton Utz

Date of Hearing: 6 and 16 December 2005

Date of Judgment: 9 February 2006

At a glance

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Judgment (14 paragraphs)

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Cases Cited (3)