SZOSA v Minister for Immigration

[2011] FMCA 62

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOSA v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 62

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and ethnic persecution in Liberia – applicant not believed in particular in relation to the claimed identity of his father – whether the Tribunal decision was irrational, illogical or unreasonable considered.

Migration Act 1958 (Cth), s.424A

Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration v Eshetu (1999) 197 CLR 611
Minister for Immigration v SZMDS (2010) 240 CLR 611
Re Minister for Immigration; Ex Parte Applicant S20 (2003) 198 ALR 59
SZEEU v Minister for Immigration [2006] FCAFC 2
SZGSG v Minister for Immigration & Anor [2009] FMCA 552
SZHKA v Minister for Immigration [2008] FCAFC 138
SZOPW v Minister for Immigration & Anor [2011] FMCA 148

Applicant: SZOSA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2289 of 2010

Judgment of: Driver FM

Hearing date: 9 February 2011

Delivered at: Sydney

Delivered on: 7 March 2011

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms A Mitchelmore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed on 22 October 2010 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2289 of 2010

SZOSA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 20 September 2010.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Liberia and has made detailed claims of a fear of harm at the hands of political enemies and also because of his ethnicity.

2. The following statement of background facts is derived from the Minister’s submissions filed on 2 February 2011. 

3. The applicant is a citizen of Liberia.  On 29 October 2004 he arrived in Australia, and on 13 December 2004 he applied for a protection visa (court book “CB” 9).

4. The applicant claimed that his father, who was of Americo Liberian ethnic origin, was a former President of the Liberian Baptist Educational Convention and Deputy Minister of Education and an adviser and confidante of the former Liberian President, Charles Taylor.  His mother, who never married his father, was from the Mandingo tribe.

5. The applicant claimed that as a result of his father’s position with the President, his family’s name became well known.  Towards the end of the civil conflict in Liberia, his father’s compound was attacked by rebel forces, who believed that his mother was giving information about their tribe to his father.  The applicant was not home at the time.  The applicant’s father was killed and his mother was taken away.  On his return to his father’s home after the incident, the applicant learned of what had occurred and left the area immediately.  He travelled to Nigeria where he remained until he arranged to come to Australia.

6. The applicant claimed that if he returned to Liberia he would be targeted by former rebel forces because of his real or imputed political opinion.  He was particularly concerned about a former leading member of one of the rebel groups, George Dweh.  The applicant also claimed to fear harm by reason of his membership of a particular social group, being Americo Liberians and/or persons of Mandingo ethnicity.  He did not believe that the current government would protect him from persecution on any of these bases.

7. By letter dated 29 March 2005, a delegate of the Minister notified the applicant that his protection visa application had been refused (CB 53). 

8. On 5 April 2005, the applicant lodged an application with the Tribunal for review of the delegate’s decision (CB 69).  The progress of his application is summarised in the decision of the Tribunal that is the subject of the current judicial review application (CB 389-390).  In brief:

   a)On 5 July 2005, the Tribunal (Tribunal 1) handed down its decision, dated 14 June 2005, affirming the decision of the Minister’s delegate (CB 139).  Its decision followed a hearing that it conducted with the applicant on 31 May 2005 (CB 76), and its receipt of various documents from the applicant (CB 80-97, 99-120, 131-134). 

   b)On 22 August 2006, the Federal Magistrates Court made consent orders remitting the matter to the Tribunal to reconsider and determine according to law (CB 162).

   c)On 6 February 2007, the Tribunal, differently constituted (Tribunal 2), handed down its decision, dated 16 January 2007, affirming the decision of the Minister’s delegate (CB 237). Its decision considered the information before it, including further submissions and other documents the applicant provided (CB 166-196, 211-227) and the applicant’s response to its invitation to him to comment on information, purportedly sent pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) (CB 206-210; 228-236).

   d)On 26 August 2008, the Federal Court made orders by consent quashing the decision of Tribunal 2 and remitting the matter to the Tribunal for redetermination according to law (CB 265).

   e)By letter dated 24 November 2008, the Tribunal, differently constituted (Tribunal 3), notified the applicant of its decision to affirm the decision of the Minister’s delegate (CB 287).  Its decision followed hearings with the applicant on 7 October 2008 and 19 November 2008, at the latter of which a number of witnesses gave evidence, and its receipt of further information from the applicant in the form of references (CB 282-284).

   f)On 15 June 2009, the Federal Magistrates Court made orders quashing the decision of Tribunal 3 and remitting the matter to the Tribunal for redetermination according to law.

9. The Tribunal as presently constituted invited the applicant to attend a hearing before it on 2 September 2009 (CB 326). The applicant accepted the invitation and the hearing proceeded on that date (CB 338). Before the hearing, the applicant’s authorised recipient sent the Tribunal information he claimed to have received from a Liberian government official responding to some questions he had asked of him (CB 320). After the hearing, the applicant’s authorised recipient sent the Tribunal further information, including in response to a letter the Tribunal sent pursuant to s.424A of the Migration (CB 345-357; 368-371).

10. By letter dated 20 September 2010, the Tribunal notified the applicant of its decision to affirm the decision of the Minister’s delegate (CB 384).

11. The Tribunal did not accept that the applicant was a credible witness (at [264], CB 428).  Although it did not place great emphasis on minor inconsistencies of fact in the applicant’s account (at [262], CB 427) there were a number of inconsistencies in his account which it considered “serious and significant” (at [295], CB 432), along with other difficulties. 

12. In particular, the Tribunal did not accept the applicant’s central claim that his father was the Reverend Walter D Richards, that he had the roles described by the applicant and that he had been killed in 2003 (at [271], CB 428).  In reaching this conclusion, the Tribunal noted the following:

    a)a Reverend Walter Dossen Richards who was currently a Baptist Minister and pastor of two churches in Liberia and was a former Deputy Minister of Education and President of the Liberian Baptist Educational Convention, was alive in 2006 and was married with a number of children (at [274], CB 429).

    b)The Tribunal had made inquiries of the Liberian Baptist Educational Convention in 2009 and been given a list of its Presidents from 1975 to 1985; only one President bore the name of Reverend Dr Walter D Richards, and that person held office at the time when the Reverend Dr Walter Dossen Richards held the office (at [277], [273], CB 429).

    c)While it was not uncommon for two or more different individuals to have the same or very similar names, the Tribunal could not accept that in a country of approximately three million people, two individuals would have not only highly similar names but would also both be Baptist Ministers of a church of the same name, have the same titles, have a high profile and the same occupational history (at [278], CB 429-430).

13. The Tribunal observed that it had raised with the applicant at the hearing before it that this was a most significant issue that needed to be explained, but the applicant had not explained it either in the course of the hearing or in his later response to the Tribunal’s invitation to comment (at [280], CB 430). 

14. In so far as the applicant claimed that his father had been killed by rebels in 2003, the Tribunal’s rejection of his claims as to the identity of his father necessarily impacted on that claim (at [283], CB 283).  In addition, however, the Tribunal identified a number of inconsistencies in his evidence and supporting documents in relation to this claim.  The most significant inconsistency related to the date of his father’s murder, with the applicant stating in his protection visa application that it occurred in May 2003, and later saying it occurred in January 2003.  In addition, the applicant attributed responsibility for the murder to different rebel groups, initially identifying the Movement for Democracy in Liberia (MODEL) and then Liberians United for Reconciliation and Democracy (LURD).

15. The Tribunal did not accept the applicant’s explanation that he had made a mistake in his original application which was caused by the trauma he had suffered.  Although it accepted that some confusion, omissions and minor inconsistencies could be caused by trauma and the re-telling of events over a lengthy period of time, the Tribunal did not accept that the serious and significant inconsistencies in his evidence had arisen for either of those reasons.  The Tribunal considered that the contradictions in his evidence indicated that his claim that his father was killed by members of rebel groups in 2003 had been fabricated (at [296], CB 432).  So far as the inconsistency as to the date was concerned, the Tribunal took the view that the applicant had changed his evidence because he realised that his passport indicated that he left Liberia in January 2003 (at [295], CB 432). 

16. The Tribunal further found that even if it had accepted the applicant’s claims, country information indicated that both LURD and MODEL rebel groups were signatories to the peace agreement signed in Accra in 2003, with some members of those groups having joined the Liberian government after the 2006 elections.  The Tribunal considered that there was no information suggesting that former members of LURD and MODEL have taken action against former adversaries in the civil conflict (at [298], CB 432-433).  In so far as the applicant claimed to fear persecution specifically from George Dweh, there was similarly no country information to indicate that he had taken up any former rebel activities; rather, the country information suggested he remained a member of the Liberian community seeking to rehabilitate himself and avoid any actions for past atrocities (at [300], CB 433).

17. The Tribunal did not accept that the applicant faced a real chance of harm because his father was Americo Liberian and his mother was Mandingo (at [306], CB 434).  In this respect it relied on country information which suggested that the current President had been concerned to ensure that all ethnic groups were included in the reconciliation process in Liberia.  There was no evidence to suggest that persons of either background had been targeted for harm since the end of the civil conflict (at [306], [309]-[310], CB 434-435).

18. To the extent that the applicant claimed to fear that he would be a victim of “witch hunting”, the Tribunal observed that he did not provide any evidence or suggest any reasons why he might face such harm, other than referring to the prevalence of the activity (at [311], CB 435).  Country information indicated that in recent times most ritualistic killing had occurred in rural areas of Liberia, amongst villagers in traditional communities (at [312], CB 435).

19. The Tribunal accepted that country information indicated that the Liberian civil war was of “almost unparalleled brutality in modern times”, and that members of the civil population were victimised and had been traumatised by the violent conduct of a number of competing rebel and government groups during the conflict.  However, not all persons from countries affected by civil conflict would fall within the definition of a refugee (at [327], CB 438).  Having considered all of his claims, it did not consider the applicant to meet that description (at [331], CB 331).

The judicial review application

1. The applicant relies upon his show cause application filed on

   
   

   22 October 2010.  There is one ground of review advanced in that application:

   The [Tribunal] erred in law as its opinion that it was not satisfied that the applicant’s fear were well founded was not one which could be formed by a reasonable person as no rational or logical decision maker could form that opinion on the same evidence.

2. I made procedural orders in this matter on 15 December 2010, among other things, giving the applicant the opportunity to file and serve an amended application and additional evidence.  No amended application was filed, although the applicant filed an affidavit on 10 December 2010 which I received as a submission.  An earlier affidavit made by the applicant on 20 October 2010 was not read. 

3. I received as evidence the court book filed on 26 November 2010. 

4. The applicant was assisted in these proceedings by Mr Toufic Laba-Sarkis, who appeared as a McKenzie friend, both at the directions hearing on 15 December 2010 and at the final hearing on 9 February 2011.

5. I note that the applicant received advice under the Minister’s panel advice scheme on 22 January 2011. 

Submissions

1. The applicant relevantly contends as follows:

   The current decision refusing my application was made on

   
   

   20 September 2010 (Court Book pages 385-439) involved serious errors.  The reasoning of the Tribunal is essentially based on speculation completely unsupported by evidence.  There was no probative evidence to support the Tribunal’s findings i.e. the Tribunal in verse 267 page 44 acknowledged  diplomatic passport according to her judgment was obtained either through corruption or influence and that I was not entitled to diplomatic status or diplomatic passport.  The Tribunal could not refute the passport being a genuine passport.  Her way of thinking is not supported because she denied how because of the position of my late father I was able to obtain the passport.  The Tribunal denied my father’s birth certificate and my own birth certificate but could not deny the veracity of the passport.  The Tribunal’s thinking on verses 269, 270, 281, 282, 296 and so on are not based on probative evidence and accordingly it was not open to the Tribunal to engage in the process of reasoning in which it did engage and to make the finding it did make on the material that was before it.

   I ask the Honourable Court and, in particular His Honour, [Federal Magistrate] Driver, to weigh the reasoning of the four Presiding Members who refused my application and to assist me in this matter and I ask His Honour to take into consideration my submission to the Tribunal of 19 March 2010, pages 368 and 269 of the Court Book and my submission of 5 August 2010, CB 376, and implore the Honourable Court to refer to my Application filed on 22 October 2010 and I rely on the grounds listed that my fear is well founded and the decision made by the Tribunal was not one which could be formed by a reasonable person as no rational or logical Decision Maker could form that opinion on the same evidence.

   I finally implore His Honour [Federal Magistrate] Driver to accept my application based on the wrong finding and non logical irrational reasoning as per Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367; 84 ALJR 269; [2010] HCA 16 Crennan an[d] Bell JJ at [133].

2. The Minister contends that the applicant invites the Court to undertake a review of the merits of the Tribunal’s decision and that there is no substance to the applicant’s allegations of a lack of evidence to support the Tribunal’s adverse credibility conclusions, or the assertion that the Tribunal’s decision is irrational or illogical in any legal sense.  The Minister contends that the Tribunal’s decision is the product of a detailed and careful examination of the available evidence and logical reasoning.

Consideration

1. It is noteworthy in this case that there have been three previous decisions of the Tribunal on review of the applicant’s protection visa application.  Each of those decisions has been set aside as being vitiated by jurisdictional error.  The first decision was handed down on 5 July 2005 (CB 139).  The Tribunal did not accept the applicant as a witness of truth.  The Tribunal noted (CB 152) that it had been unable to independently locate reports of the applicant’s father’s alleged death but had found as a result of a Google search the name of a man with a very similar name and background.  The Tribunal noted that that man was known to have been alive some five months after the applicant claimed his father had been killed.  The Tribunal made other adverse credibility findings based upon perceived inconsistencies or implausibilities in the applicant’s account.

2. That decision was set aside by order of this Court[1] on 22 August 2006 based upon a concession by the Minister that the Tribunal had failed to disclose information required to be disclosed, pursuant to s.424A of the Migration Act, based upon the understanding at that time of the operation of that section in the light of the decision of the Full Federal Court in SZEEU v Minister for Immigration [2006] FCAFC 2.

   [1] Federal Magistrate Emmett

3. The second Tribunal decision was apparently handed down on
   

   [2] SZHKA v Minister for Immigration [2008] FCAFC 138

   6 February 2007 (CB 237). The second Tribunal had regard to the evidence available to the first Tribunal. The Tribunal also had the benefit of additional information received as a result of an inquiry made by the Tribunal concerning the Reverend Dr Walter D Richard. That information suggested that the applicant might be attempting to associate himself with a known person and claim that person as his father, although that person had not been killed by rebels as claimed by the applicant. While the Tribunal had raised that information with the applicant, pursuant to s.424A of the Migration Act, the Tribunal failed to conduct a fresh hearing. It was for that reason that the second Tribunal decision was set aside by the Federal Court by Besanko J on 28 August 2008[2].

4. The third Tribunal decision was made on 24 November 2008.  That Tribunal conducted a fresh hearing and squarely raised with the applicant doubts it had concerning the issue of the identity of the applicant’s father.  The Tribunal found at [40] (CB 311) that the story of the death of the applicant’s father was not credible.  His description of his father’s background so closely matched that of a man who was known to be alive and well that the Tribunal did not accept that there were two men involved.  To the extent that the applicant’s witnesses had personal knowledge, it merely confirmed the applicant’s claims about his father.  The witnesses’ evidence did not address the fundamental problem that the man they knew or knew of is not the applicant’s father and was not killed in 2003.  The Tribunal was unable to conclude who the applicant’s father was, or whether he was alive or dead, but concluded that he was not the man the applicant claimed.

1. That decision of the Tribunal was set aside by order of this Court[3] on 15 June 2009[4].  The Court’s reasons for setting aside that decision are not immediately relevant as they related to an apparent misleading of the applicant at the Tribunal hearing concerning a further opportunity to comment on the authenticity of press articles relied upon.

   [3] Federal Magistrate Emmett

   [4] SZGSG v Minister for Immigration & Anor [2009] FMCA 552

2. In view of the unfortunate administrative and legal history of the review of the applicant’s claims, it is not surprising that the Tribunal decision made on 20 December 2010 is exceptionally detailed.  The essential reasoning of the fourth Tribunal, however, was not fundamentally different from that of the earlier Tribunals.  The fourth Tribunal did not consider the applicant to be a credible witness (at [264], CB 428).  The Tribunal did not accept that the applicant’s father is Reverend Dr Walter David Richard, that his father was a Baptist Minister at the Salem Baptist Church in Clay Ashland or that his father was the former President of the Liberian Baptist Educational Convention and a former Deputy Minister of Education in Liberia.  The Tribunal’s reasons are (CB 429-430):

   This claim was made in his original handwritten application for a protection visa and was repeated at the hearings held before the Tribunal and in a statement made by the applicant on 2 January 2006.

   The Tribunal finds that the Reverend Dr. Walter D Richards is a fairly well known high profile figure in Liberia. His full name is Walter Dossen Richards; he is a Baptist Minister and the pastor of two churches, one the “Salem Baptist Church”, North West Avenue, Brewerville and the “First Baptist Church” in Clay Ashland. The Tribunal could not find any information indicating that there was a Salem Baptist Church in Clay Ashland, although the Salem Baptist Church in Brewerville has been independently located. Brewerville is about 10 kilometres from Clay Ashland. (Google Earth)

   Reverend Dr. Walter Dossen Richards was a former Deputy Minister of Education under the Tolbert and Doe regimes and was the President of the Liberian Baptist Educational Convention from 1985 on. Following enquiries made by DFAT in 2006 the Tribunal was advised that Reverend Walter Dossen Richards was alive in 2006 and at that time was the Chairman of the Board of the Liberia Opportunity Industrial Corporation and a former Chairman of the Board of Trustees of the University of Liberia. He was also married with a number of children, none of whom were named Joshua Richard.

   The similarities in the details and occupational history of Reverend Walter Dossen Richards and the applicant’s father were put to the applicant by Tribunal 2 in an invitation to comment pursuant to s424A of the Act and by Tribunal 3 and myself at hearings before the Tribunal.

   In response the applicant has maintained that the Reverend Walter Dossen Richards referred to by the Tribunal was a different person than his father, who had died at his home in Clay Ashland in 2003 at the hands of Liberian rebels. He declared this in his statement of 2 January 2006 and gave evidence to this effect at a number of Tribunal hearings. He also provided supporting documents to this effect including photographs of the person he claimed was his father comparing him to a photograph of a person said to be Reverend Walter Dossen Richards. I have dealt with the issue of the various documents provided by the applicant later in this decision.

   The Tribunal also made enquiries of the Liberian Baptist Educational Convention in 2009 and was advised of the names of its Presidents from 1975 to 1985. There was only one person named Reverend Dr. Walter D Richards who was President during that time and he was President from 1985 on.

   I accept that it is not uncommon for 2 (or more) different individuals to have the same name or very similar names. However, I do not accept that in a country of approximately 3 million people that 2 individuals would have not only highly similar names, that is, Walter David Richard and Walter Dossen Richards, but that they would both be Baptist Ministers of churches named the Salem Baptist Church, that they would have the same titles (Reverend and Dr.) and that they would have a high profile and the same occupational history, that is, that they were both previous Deputy Ministers of Education under the Tolbert and Doe regimes and that they would both have also been previous Presidents of the Liberian Baptist Educational Convention.

   The applicant has vigorously propounded his explanation for what he claims is a highly coincidental set of facts. He states that there are two different individuals with remarkable differences. However, I do not accept his explanation. I do not accept that the various documents he has provided overcome the essential problem in his claim. His problems remains, despite other material he has provided, that the person he described in his application, in his written statements and in his and his witness’s oral evidence as his deceased father, that is the Reverend Dr. Walter D Richard, has a similar name and has exactly the same occupational history as the person identified by DFAT as Reverend Dr. Walter D Richards who was alive and well in 2006. This person is not the applicant’s father.

   During the Tribunal hearing held on 2 September 2009 I clearly put it to the applicant that this was a most significant issue which needed to be explained. However he could not explain why two people would have exactly the same occupational background and similar names either during the hearing or in his later response to the Tribunal’s invitation to comment dated 18 January 2010. His response to this issue at various stages during the review process has been that the person identified as Reverend Dr. Walter D Richards by the Tribunal is a different person to his father who was killed in 2003. However he has failed to grasp and understand the illogicality of his response and has not provided a satisfactory explanation for all the similarities pointed out by the Tribunal. 

   I do not accept that a Reverend Dr. Walter David Richard was the applicant’s father. I consider that the applicant has used the identity of the living Reverend Dr. Walter Dossen Richards as a basis (or template) for the individual he has claimed as his father and who he claims was killed in 2003 by rebels.

3. The Tribunal went on to further discuss the available evidence in detail and to make findings of weight on documentary evidence that was put forward to corroborate the applicant’s claims. 

4. I accept the Minister’s submissions on the question of jurisdictional error.  As Gleeson CJ observed in Re Minister for Immigration; Ex Parte Applicant S20 (2003) 198 ALR 59 at [6], by reference to the High Court’s decision in Minister for Immigration v Eshetu (1999) 197 CLR 611 at [40], to describe reasoning as illogical, or unreasonable, or irrational, “may merely be an emphatic way of expressing disagreement with it”:

   If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.

5. In an affidavit affirmed on 9 December 2010, the applicant refers to the more recent decision of the Court in Minister for Immigration v SZMDS (2010) 240 CLR 611. However, as Crennan and Bell JJ observed in that case (at [131]):

   [T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.  If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

6. The submissions the applicant made in his affidavit and orally demonstrate that his allegation of illogicality goes to the merits of the Tribunal’s reasons.  Contrary to the applicant’s submissions at [4], the Tribunal’s reasoning was not speculative, but was based on an evaluation of the evidence that the applicant put before it, including his own evidence and that of other witnesses, and the documents he produced in support of his claims.  The applicant’s contention in this context that the Tribunal’s reasons were unsupported by probative evidence misconceives the nature of the Tribunal’s role on review of the Minister’s decision.  As Gummow and Hayne JJ explained in Abebe v Commonwealth (1999) 197 CLR 510 at [187], it is for the applicant to advance whatever evidence or argument he wishes to advance in support of his contention that he has a well-founded fear of persecution for a Convention reason, and the Tribunal must then decide whether that claim is made out.

7. The principal basis on which the applicant claimed to fear persecution was that his father, whom he alleged was a prominent pastor, former Minister and confidante of the former President, had been killed in civil unrest.  The principal difficulty the Tribunal had with this claim was that materials available to it suggested that there was a Reverend Dr Walter D Richards with the curriculum vitae that the applicant had outlined for his father, who was still alive in 2006.  It was open to the Tribunal to take the view, on the material before it, that it was unlikely in the extreme that there were two men in a country with the small population of Liberia, possessing so similar a name and professional background as the applicant maintained his father and the other Reverend Richards had.  The inconsistencies in the applicant’s account at various times, including the different dates given for his father’s murder, added to the Tribunal’s doubts as to the veracity of the applicant’s claims.

8. Once the Tribunal determined that the applicant’s father was not a Reverend Dr Walter D Richards (at [281]), it was only a short step to reject the claims which flowed from that, namely that his father was a close confidante of the former President, had a high profile for that reason and had been killed by Liberian rebels in 2003 (at [282]).  In so far as the applicant relied on identity documents to support his identity and that of his father, it was open to the Tribunal not to place weight on those documents in light of its findings as to the other inconsistencies and improbabilities in the applicant’s account.  Although the applicant specifically challenges the logicality of the Tribunal’s findings that his passport had been obtained “through corruption or influence”, that finding derived from the applicant’s evidence that he had obtained it through a friend of his father’s who was a former Foreign Minister and wanted him to transact some personal business for him in Ghana.  Given the circumstances in which the applicant said he had procured it, the Tribunal’s view that the passport was not reliable evidence of the applicant’s personal details was not illogical (at [267]ff, CB 428). 

9. The Tribunal’s decision was the product of its evaluation of the extensive evidence that the applicant had put before it.  It was not illogical or unreasonable in the requisite sense. 

The position of Mr Laba-Sarkis

1. At the directions hearing as well as at the trial of this matter, the applicant raised allegations that he had been pressured by the Minister’s Department to co-operate with an investigation of the conduct of
   Mr Laba-Sarkis.  The applicant alleges that the Minister’s Department informed him on several occasions that his protection visa application would not receive favourable consideration unless he co‑operated in moves by the Department to take action against Mr Laba-Sarkis.  The applicant claimed that he declined to co-operate.  He told me that he had raised these allegations also with the fourth Tribunal and the Tribunal decided that the allegations were beyond the scope of the review.  He offered to give sworn evidence to support his allegations but I did not consider it necessary to receive that evidence.  I see no error in the approach by the Tribunal alleged by the applicant.  There is no suggestion that the Tribunal decision was in any way coloured by the involvement of Mr Laba-Sarkis or by any pressure applied by the Minister’s Department.  The applicant resisted whatever pressure may have been applied to him and participated in the review process before the fourth Tribunal.  There was no disabling of that review process as a result of any pressure from the Minister’s Department.

2. Mr Laba-Sarkis is well known as a person who assists migration applicants at various stages of the determination and review process.  He has appeared before me on a number of occasions in the capacity as a McKenzie friend.  I have found the involvement of Mr Laba-Sarkis in proceedings before the Court to be helpful rather than a hindrance.  Unlike some registered migration agents who choose to lurk in the shadows and not disclose their involvement in proceedings before this Court, Mr Laba-Sarkis (who I understand is not a registered migration agent) makes no secret of his involvement and attends Court with those he is assisting in order to provide whatever support or assistance he may.  I do not know if the Minister’s Department has any adverse interest in Mr Laba-Sarkis.  If it does, that interest might be better directed at the Australian operations of the extensive “snakehead” people smuggling industry which was the subject of comment by me in SZOPW v Minister for Immigration & Anor [2011] FMCA 148 and earlier decision referred to therein.

3. I find that the decision of the Tribunal is free from jurisdictional error.  It is therefore a privative clause decision and the application must be dismissed.  I will so order.

4. I will hear the parties as to costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  7 March 2011