Migrant Smuggling By Air
Migrant smuggling by air, which often involves the use of forged or false documents, is a phenomenon not well researched and understood in Australia. It is typically overshadowed by concerns surrounding maritime migrant smuggling. Recent reports and law enforcement investigations, however, have revealed a significant number of schemes set up to facilitate and conceal the illegal arrival of smuggled migrants by air. Concerns about migrant smuggling by air and document fraud in Australia are further fuelled by popular television programs which (unjustifiably) insinuate that a large proportion of foreigners inspected by immigration control officers at Australia’s airports have arrived with false documents and/or misrepresent the purpose of their visit to Australia.
The following sections summarise research conducted in 2012 on the available information relating to migrant smuggling by air, document fraud, and the Australian case law.
For the full report click here [pdf].
Simply put, the smuggling of migrants by air, as distinct from smuggling by sea or across land borders, involves the use of commercial or private passenger or cargo planes to facilitate the illegal entry of a person into another country. This can be carried out in a myriad of ways, including concealing migrants as stowaways in the cargo hauls, bathrooms, or near the landing gear of aeroplanes. Most commonly, this form of smuggling involves the use of forged documents by smuggled migrants who travel on board commercial airlines. In some cases, smuggled migrants travel with without documents, destroy their documents en route or use false documents. These methods serve to conceal the identity and/or nationality of the smuggled migrant. If forged documents are used, the smuggled migrant may be able to deceive immigration officers upon arrival and enter the destination country. If documents are destroyed en route, smuggled migrants usually report to officials on arrival in order to seek asylum and gain refugee protection. The smuggling of migrants by air may also be differentiated between accompanied and unaccompanied smuggling. In some cases, smuggled migrants, especially if they are furnished with false documents and cash to make them appear as tourists, are accompanied by members of migrant smuggling network to ensure they proceed through check-in and immigration controls, and to retrieve the documents and cash from them after arrival at the destination point.
This snapshot highlights some of complexities of migrant smuggling by air which researchers, policy makers, and investigators are only beginning to understand and which are often only rudimentarily addressed in the domestic legal system.
Document fraud is a central feature of migrant smuggling by air, as the vast majority of countries and airlines require passports, visas, or other identity papers to be presented at check-in and again at emigration and immigration control points. Even in jurisdictions that permit visa-free entry for certain nationalities or allow entry without a passport, other identify cards or official documents need to be produced to clear relevant border controls. Document fraud thus becomes a necessity if and when a would-be migrant does not possess authentic papers or if such papers would not permit the person to check-in, depart, or enter another country.
Forged documents may be provided by migrant smugglers – or may be obtained by smuggled migrants – in one of two ways. The first avenue is to obtain otherwise genuine documents from an immigration officer by supplying false information and/or by way of corruption. In some instances, immigration officials and consular staff may be bribed to provide genuine passports and visas, or to provide the documentation necessary for the migrant to attain genuine documents, such as birth certificates. Equally, police and airline staff may accept payments for turning a blind eye to fraudulent documents. In a similar fashion, misrepresentations may be made or false documents presented to relevant officers and agents in order to gain genuine documents.
The second form of document fraud involves the fraudulent production of documents or forgery of genuine documents, usually in return for the payment of substantial fees. For example, genuine passports may be obtained from persons of similar appearance, sold to the smugglers or directly to the smuggled migrants, and then reported lost or stolen by the seller. Alternatively, passports may be forged by way of photo-substitution or by altering other information or biometrical data contained in a passport that was once genuine. Forged passports are usually supplied and sold by specialists. The quality of these forged documents varies significantly. If a smuggled migrant merely wants to reach the country and then claim asylum, the forgery does not need to be particularly convincing, as there is no attempt to deceive immigration officials at the point of entry. On the other hand, if the person seeks to enter destination country undetected then the document must be of a high quality. Smuggled migrants may also change their documents en-route, for example by travelling to one airport hub on genuine documents, then being given further fraudulent documents in order to travel further on to the destination country.
Visas may also be forged or fraudulently obtained. They can be arranged in advance, sometimes with the help of corrupt or shambolic educational or business institutions. Visa applications may be supported by additional fraudulent documents intended to prove the false identity of the smuggled migrant or to misrepresent the true purpose of their intended travel.
There are, at present, no statistics about the number of persons smuggled into Australia by air each year. This is due, in part, to the clandestine nature of this crime and the use of sophisticated document fraud that may not be apprehended at immigration control points at Australia’s airports and seaports. But even if such documents are detected it is not always clear whether the use of forged documents is indeed facilitated by migrant smugglers or whether these documents have been supplied or acquired for other reasons. For example, in the period 2010-11, 89 people were refused entry to Australia for presenting false or altered documents.
The most substantive information about the characteristics and scale of migrant smuggling by air and related document fraud in Australia stems from reported and unreported case law, together with several media reports that have been published in recent years.
The most prominent of these cases was brought to light in a series of media features by the Australian Broadcasting Corporation (ABC) in March 2012. In this case, the AFP, in cooperation with the Royal Thai Police, made several arrests relating to migrant smuggling network that allegedly supplied forged documents to persons intending to migrate to Australia. Thai authorities arrested two people in possession of twenty altered passports, along with equipment for creating false documents. It was alleged that the men were producing and supplying Iranian and United Arab Emirates passports in order to smuggle people to Australia by plane or boat. Four people were arrested in Australia as part of the same operation, thought it was later revealed that they did not possess false documents, nor the ability to produce them. It was alleged that these four people were the Australia-based organisers and they were subsequently charged for offences including aggravated people smuggling under s 233C of the Migration Act 1958 (Cth).
Following these arrests, further reports surfaced which suggest notable occurrences of document fraud in the process of migrant smuggling to Australia by plane. The ABC specifically singled out the alleged smuggling of Chinese migrants into Australia, ‘supported by a network of corrupt officials from China to migration agents in Australia’. The report suggested that migrant smugglers use fraudulently obtained visas and a variety of other forged documents to smuggle their clients into Australia by air and then help them apply for protection visas (which are designed for refugees fleeing from persecution).
While it is not possible to state how many persons have been charged in Australia with offences relating to migrant smuggling by air, there are occasional reports about individuals who have been investigated and charged under relevant provisions. One such case is that of Ms Kanani who was charged in 2009 under s 233(1)(a) of the Migration Act 1958 (Cth) in relation to an alleged fake passport ring. Together with co-worker Ms Lara Triglia, Ms Kanani was accused of approving fraudulent passports applications lodged at Australia Post outlets, and then going overseas to sell them. Ms Kanani pleaded guilty to all charges.
An analysis of judicial decisions relating to immigration matters provides further insight into the patterns of migrant smuggling by air and document fraud in Australia. Specifically, there are several cases that went before the Federal Magistrates Court on appeal from the Refugee Review Tribunal (RRT) as well as several decisions from the RRT itself that point to further evidence about this phenomenon. The following cases were chosen insofar as they are representative of the wider problem.
Several of these cases support claims made in recent media reports about smuggling of Chinese migrants. For example, the case of SZNTK v Minister for Immigration and Citizenship  FMCA 970 involved a Chinese national who was given a false identity and a false passport issued in another person’s name and put on a plane to Sydney, where, approximately one month after arrival, he applied for a protection visa. In SZOPW v Minister for Immigration and Citizenship  FMCA 48 a Chinese woman used a Snakehead, a term used for Chinese migrant smuggling syndicates, to procure a fake passport to enter Australia. Upon arrival she was given a British Passport with which to claim asylum. Several similar cases involving Chinese nationals make reference to the use of fraudulently obtained visas and supporting identification documents. The case of SZONB v Minister for Immigration and Citizenship  FMCA 13, for instance, involves the buying of a fraudulent visa along with other documents with which the smuggled migrant was to obtain a business visa once he was in Australia. He later attempted to do so, but after several failed attempts applied for a protection visa instead.
Numerous cases that came before the RRT point to similar patterns of Chinese nationals who, facilitated by migrant smugglers, acquired false documents for the purpose of entering Australia by air. For example, the RRT Case 1102969 concerned a Chinese woman who had paid a large amount of money for a false passport with which to enter Australia. The RRT Case 1102969 further stated the cost of a false Chinese passport varied between US$ 10,000 and 80,000, with the cost increasing for assisted passage with multiple passports. The RRT Cases 1001501 and 1108375 also detail the use of fake passports used to enter Australia. The RRT Case 1001501 concerned a Tibetan woman who acquired a variety of false Nepalese documents in order to travel to Australia. She stated her father paid a police officer about AU$ 2,500 for a Nepalese passport and citizenship card.
In addition to the smuggling by air of migrants from mainland China, there is also a considerable number of reports involving smuggled migrants from other countries. The RRT Case 1106553, for instance,outlines how a man from Uzbekistan paid his smuggler, referred to as Mr F, substantial amounts money to be escorted on the trip, and for the manufacture of false documents. The RRT Case 1113831 involves a Nepalese woman who had used a false Nepalese passport to enter Australia. The case of SZPJ v Minister for Immigration and Citizenship  FCA 18 provides a detailed account of an Afghan man who travelled to Pakistan where his uncle arranged for a migrant smuggler to take him to Australia. He was initially given an Iranian passport to travel to Dubai, and a Japanese passport with which to travel to Australia, where he sought asylum. His application for a protection visa was unsuccessful and an appeal against this decision failed because the Court held that his claims about persecution were fabricated. Similar cases involve nationals from South Asia, including Bangladesh, India, and Sri Lanka, who are furnished with false documents by migrant smugglers to obtain Australian visas overseas. Many of these cases also point to the prevalence and availability of false documents in the applicants’ countries of origin, which is indicative of the wider problem and, perhaps, of the scale of migrant smuggling involving document fraud.
|||UNODC, Migrant Smuggling by Air, Issue Paper (UNODC, 2010) 5.|
|||Andreas Schloenhardt, Migrant Smuggling: Illegal Migration and Organised Crime in Australia and the Asia Pacific Region (Martinus Nijhoff, 2003) 135.|
|||UNODC, Migrant Smuggling by Air, Issue Paper (UNODC, 2010) 11.|
|||UNODC, Migrant Smuggling by Air, Issue Paper (UNODC, 2010) 4, 9.|
|||Andreas Schloenhardt Migrant Smuggling: Illegal Migration and Organised Crime in Australia and the Asia Pacific Region (Martinus Nijhoff Publishers, 2003) 138.|
|||UNODC, Migrant Smuggling by Air, Issue Paper (UNODC, 2010) 10.|
|||Question taken on notice to Senate Standing Committees on Legal and Constitutional Affairs (Budget Estimates Hearing – Immigration and Citizenship Portfolio), Parliament of Australia, Canberra, 21-22 May 2012, BE12/0288.|
|||ABC Radio National, ‘Six arrested in multi-nation people smuggling operation’, AM, 28 March 2012 (Zoe Daniels) <http://www.abc.net.au/am/content/2012/s3465202.htm>; see also Pia Akerman, ‘People smugglers arrested’, The Australian, 28 March 2012, 6.|
|||Matthew Carney, ‘Plane arrivals in widespread rorting of asylum system’, ABC News (online), 16 March 2012 <http://www.abc.net.au/news/2012-03-15/chinese-fly-into-australia-to-make-27dodgy27-asylum-clai ms/3892416>.|
|||Belinda Kontominas, ‘Iraqi refugee pleads guilty to people-smuggling charges’, The Sydney Morning Herald (Sydney), 29 July 2010, 4; Vikki Campion, ‘Postie’s counter asylum racket: AFP swoop on two women over fake passport claims’, The Daily Telegraph (Sydney), 4 May 2009, 1.|
|||Patrick R Keefe, ‘The Snakehead’ (24 April 2006) 82(10) The New Yorker, 68–85.|
|||See, for example, RRT Case 1001501  RRTA 481 (24 May 2010) (Member Smyth); RRT Case 1102969  RRTA 923 (3 November 2011) (Member Mullin); RRT Case 1108375  RRTA 228 (11 April 2012) (Member Duignan).|
|||RRT Case 1102969  RRTA 923 (3 November 2011)  (Member Mullin) quoting Immigration and Refugee Board of Canada, China: The manufacture, procurement, distribution and use of fraudulent documents, including passports, "hukou", resident identity cards and summonses in Guangdong and Fujian in particular (2005–May 2009) (24 June 2009) <http://www.unhcr.org/refworld/docid/4a7040 b72.html>.|
|||RRT Case 1102969  RRTA 923 (3 November 2011)  (Member Mullin).|
|||RRT Case 1001501  RRTA 481 (24 May 2010) ,  (Member Smyth); RRT Case 1108375  RRTA 228 (11 April 2012)  (Member Duignan).|
|||RRT Case 1106553  RRTA 40 (31 January 2012)  (Member Duignan).|
|||RRT Case 1113831  RRTA 255 (20 April 2012)  (Member Jacovides).|
|||SZOMT v Minister for Immigration and Citizenship  FMCA 3, SZOUL v Minister for Immigration and Citizenship  FCA 945, SZQUID v Minister for Immigration and Citizenship  FCA 458; RRT Case 1203964  RRTA 312 (18 May 2012)  (Member Short).|
|||See, for example, SZNTK v The Minister for Immigration and Citizenship  FMCA 970, ; SZOMT v Minister for Immigration and Citizenship  FMCA 3 ; SZOUL v Minister for Immigration and Citizenship  FCA 945 .|