Sarker v Minister for Immigration & Multicultural Affairs (includes corrigendum dated 9 March 2001) [2001] FCA 190 (7 March 2001)

Last Updated: 19 February 2002

FEDERAL COURT OF AUSTRALIA

SARKER v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS [2001] FCA 190

MANIRUL ISLAM SARKER v MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS

CONTI J

7 MARCH 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1046 OF 2000

BETWEEN:	MANIRUL ISLAM SARKER APPLICANT
AND:	MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	7 MARCH 2001
WHERE MADE:	SYDNEY

CORRIGENDA

On page 8 para 15 the following amendment should be made:

"Section 359 of the Act" be amended to read "Section 424 of the Act".

Associate:

Dated: 9 March 2001

FEDERAL COURT OF AUSTRALIA

SARKER v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS [2001] FCA 190

IMMIGRATION - Application for protection visa - review of decision of Refugee Review Tribunal refusing visa - Applicant well educated and family in Bangladesh living in favourable circumstance there - Applicant claimed to face persecution from Awami League if returned to Bangladesh by reason of active membership in Freedom Party - RRT found Applicant not a credible witness in relation to material claims and otherwise failed to establish genuine fear of persecution if returned to Bangladesh - RRT found documents allegedly produced by Applicant from Bangladesh sources not authentic or credible - RRT found evidence of Bangladesh nationals corroborating Applicant unsatisfactory - contemporary country information concerning political events and conditions in Bangladesh inconsistent with evidence of Applicant and such supporting witnesses - Court unable to interfere with findings of fact of RRT - no error of law demonstrated.

Migration Act 1958 (Cth) ss 359, 476(1)(e), 476(1)(g), 476(4)(b)

Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 referred to

Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55; (2000) 175 ALR 585 applied

Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 applied

Minister for Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9; [2000] 169 ALR 515 applied

Vichlenkova v Minister for Immigration and Multicultural Affairs [1999] FCA 1338 applied

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 referred to

Fernando v Minister for Immigration and Multicultural Affairs [1999] FCA 962 referred to

MANIRUL ISLAM SARKER v MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS

CONTI J

7 MARCH 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1046 OF 2000

BETWEEN:	MANIRUL ISLAM SARKER APPLICANT
AND:	MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	7 MARCH 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Application be dismissed.

2. The Applicant pay the costs of the Respondent.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1046 OF 2000

BETWEEN:	MANIRUL ISLAM SARKER APPLICANT
AND:	MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	7 MARCH 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The Application for Review

1 The Application for Review is brought against the decision of the Refugee Review Tribunal ("the RRT") made on 13 September 2000, whereby the RRT affirmed the decision of the delegate of the Minister not to grant the Applicant a protection visa, because as in the case of the delegate, the RRT was not satisfied that the Applicant was a Refugee within the Convention definition. The Applicant had entered Australia on a visiting visa on 31 October 1998. The Applicant was not represented at the hearing before the RRT, nor at the hearing before this Court. It appears from the content of the Application for Review that the same was not drafted by a legally qualified person. The Applicant was assisted by a Bengali speaking interpreter at the hearing before me.

2 The form of the Application for Review states that the Applicant was aggrieved for the following reason:

"The Respondent has decided that I am not a refugee and will not be granted a protection visa. Therefore, I have to depart from Australia to Bangladesh, where upon my return, I am certainly facing prosecution by the authorities and possibly life imprisonment."

3 The grounds of the Application for Review are specified as follows:

"A. The Respondent exercised power under section 431 [sic 481] of the Migration Act 1958 and decided that I am not a person to whom Australia has protection obligations under the refugee convention.

B. I certainly believe that the Department of Immigration as well as the Refugee Review Tribunal, has certainly made an error of law being an error involving an incorrect interpretation of the application of the law to the facts as found by the person who made the decision."

Reading the Application for Review in its totality, it is apparent that the only statutory ground for review which has been pursued before the Court is that set out in s 476(1)(e) of the Migration Act 1958 (Cth) ("the Act"). Section 476(1)(e) reads as follows:

"(1) Subject to sub-section (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

...

(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision."

Factual Background

4 The narrative of this segment has been mainly extracted from the evidence which was recorded by the RRT as having been presented to it by the Applicant. The Applicant is a Bangladeshi national of 29 years of age. He is the second child of three sons. His family still resides in Bangladesh. His older brother conducts a business and his younger brother is still studying. The Applicant's father is a retired businessman and farmer, and "is well off", and his mother attends to home duties. The Applicant arrived in Australia on 31 October 1998, and on 27 November 1998, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.

5 During the time he lived in Bangladesh, the Applicant studied at the Furudoyal Government College. He went to Dhaka University and studied English literature between 1988 and 1989. Thereafter he studied psychology from 1989 until 1990. Such was his academic progression that he was undertaking an honours degree by 1994. Due to political problems prevailing in his country, the Applicant experienced extensive delays as examinations were continuously postponed. Though the Applicant was intending to undertake a Master's Degree in 1996, he asserted that he was unable to do so because he had to flee from Bangladesh authorities.

The basis of the Applicant's claim for refugee status

6 The Department's file placed before the RRT contained the Applicant's visa application and written submissions made by the Applicant to the Department in support thereof. The Applicant placed additional written submissions before the RRT, and gave oral evidence to the RRT on 3 and 7 July 2000.

7 The Applicant's principal written submission was extracted on pages 4 to 6 of the RRT decision. In summary, that submission stated that he was a "very prominent political activist in Bangladesh", and that he had belonged to the Bangladesh Freedom Party led by Colonel Faroque Rahman, who was said to be a veteran freedom fighter and to have made "a tremendous contribution in the Bangladesh Liberation War". The Applicant also claimed to have been an active member of the Party's Dhaka City Committee, and to have become an executive member of such Committee in 1993, and the Publications Secretary and Organising Secretary in 1994 through the Party Convention. The opposing and dominant political party at the time was said by the Applicant to be the Bangladesh Awami League, which held power in government of the country, and was said to engage in "forceful prohibition of multi-party democracy and freedom of speech, unnecessary interference with the judicial system, and their other subversive activities such as nationwide killing of their political opponents along with unlawful detention of their opponents under the Special Powers Act". In the events which happened, so the Applicant's written submissions to the RRT continued, the Applicant "faced enormous attacks from the Bangladeshi Awami League, including threats against my life and continuous pressure on my family members, in an attempt to prevent me from carrying out my political activities". A false and fabricated case was said to have been lodged against him by the Awami League, which accused him of involvement in a politically motivated murder case, and of looting the Awami League metropolitan city office.

8 In the result, so the Applicant claimed in this principal written submission to the RRT, the Applicant went into hiding, and the law enforcement authorities were unable to find him. He escaped into India, but his family was said to have been tortured in the meantime. The Indian and Nepalese governments denied him shelter, because they were traditional allies of the Bangladesh Awami League, and the Applicant was forced to return to Bangladesh, where he applied to the Australian High Commission for the visiting visa whereby he was able to enter Australia on 31 October 1998.

The Applicant's oral testimony to the RRT

9 On the first day of his oral testimony to the RRT, the Applicant's account of his experiences in Bangladesh was expanded to a narrative of much greater experience of intimidation from the Awami League. He recounted an incident of being shot towards the end of 1995, which the RRT described as involving "confusing details". At about the same time, according to what the Applicant testified to the RRT, he broke his shoulder and lost consciousness. He provided to the RRT a medical certificate from a Sydney doctor that stated shortly and unspecifically that the Applicant suffered pain in his arm and thigh which appeared to be related to previous injuries. The Applicant said that he complained to the police about such attack upon him, but nothing was done because of lack of witnesses. Nevertheless his friends were said to have gone to the police "to lodge a case". The Applicant could not remember the name of the clinic to which he had been taken after he sustained the shoulder injury. Additionally, on this first occasion before the RRT, the Applicant provided documents relating to two false cases brought against him in Bangladesh, but he gave a somewhat unsatisfactory explanation as to why such documents, one of which originated from the Freedom Party and was dated February 1999, had not been submitted earlier to the Department or RRT.

10 On the second occasion of giving evidence before the RRT, the Applicant referred to a false case brought against him in Bangladesh, apparently for murder, which had not been mentioned in his application to the Department. The judge was said to have dismissed the murder case in 1998, and the Applicant did not go to Court. The charge was said to have been initiated by his political enemies at Dhaka University, and the case was dismissed in 1998. The RRT asked the Applicant "why he had not mentioned this serious case in his application", and the Applicant replied that ".... It was dismissed and his solicitor told him not to put it in".

11 The RRT questioned the Applicant on the second occasion, apparently at some length, concerning a number of other matters as follows:

(i) His knowledge of the Freedom Party, and the names of its members with whom he might be expected to have associated.

(ii) Country information in the RRT's possession suggestive of conclusions that the Freedom Party was irrelevant and that the government was not pursuing its members.

(iii) The authenticity of alleged murder charges brought by Bangladeshi authorities in relation to an attempted assassination of Sheik Hossina.

(iv) The authenticity of an alleged murder charge brought against Faroque Rahman.

12 The Applicant provided two witnesses in person on his behalf before the RRT, one being Mr Abdullah Chowdhury, who said that he had heard from friends of charges brought against the Applicant, and that the Applicant "got a very good post in the Freedom Party", and Mr Khan, who first came to Australia in 1993, but had later returned to Bangladesh, and who said that he had heard that the Applicant had joined the Freedom Party, and that his brother had suffered injury in the context of his membership of that Party.

13 The RRT had a great deal of written information before it concerning living and political conditions in Bangladesh generally, and concerning the Freedom Party in particular, which included the following:

(i) "Bangladesh: profile of asylum claims and country conditions", produced in February 1998 by the Bureau of Democracy, Human Rights and Labour, February 1998.

(ii) The Canadian Research Directorate, Immigration and Refugee Board, Ottawa, BGD28870.E 27 February 1998 "Bangladesh: Information on the current status of the Freedom Party (Maijdee), including whether their were any reports that members faced any problems in 1996 and 1997".

(iii) US Department of State, Country Report on Human Rights Practices for 1998, released by the Bureau of Democracy, Human Rights and Labor, February 26, 1999.

(iv) "Bangladesh, Profile of Asylum Claims and Country Conditions", Bureau of Democracy, Human Rights and Labor, dated February 1998 CX31417.

The RRT's decision

14 The RRT expressed a lack of satisfaction that the Applicant had a well-founded fear of persecution for a Convention reason, and found that he was not a refugee within the Convention definition. In so doing, the RRT rejected the credibility of most of the claims advanced by the Applicant. The findings and reasons for the RRT's decision the subject of review may be summarised, albeit not exhaustively, as follows:

(i) The Applicant was not a convincing witness and did not respond well when inconsistencies in his evidence were put to him. The RRT had doubts about the authenticity of documentation produced by the Applicant.

(ii) The events of the Applicant being shot and having his shoulder broken had not been mentioned in his application to the Department. Although at the second hearing, he produced what he alleged was the record of his visit to a clinic in the context allegedly of sustaining such injury, he could not remember the name of the clinic, and his explanation for such lack of memory was unconvincing.

(iii) The RRT did not accept the credibility of the Applicant's account that he was shot and bashed and thereby suffered injuries to his leg and shoulder, and that the medical certificate could not be used to account for the source of his injuries; moreover the record of his treatment in Bangladesh only referred to the wound, and not to head and shoulder injuries, thereby rendering such documentation suspicious.

(iv) The Applicant's explanation about the allegedly fake murder charge was unconvincing. Independent evidence indicated that the Bangladesh National Party Government, which was in power at the material time, was not involved in the agitation of political issues against the Freedom Party, unlike the Awami League Government, and that the Applicant had made up this claim to attempt to overcome implausible aspects of his evidence.

(v) Although the Applicant had some knowledge about the Freedom Party, it was not consistent with the level of knowledge he would have possessed, if he had been the Party leader he claimed to have been. He did not know for instance the name of the student wing, nor did he know the leaders of the Jubo command. He only knew the names of four party leaders. The RRT was not satisfied that he was a member of the Freedom Party.

(vi) The evidence relating to the attempted murder of the Prime Minister was weak and implausible. It was considered by the RRT to be ludicrous for there to have been a subsisting case against Colonel Rahman at the time of such attempt, as he had already been arrested and imprisoned, and was to be tried in relation to a capital offence. There were further inconsistencies between the Applicant's written application to the Department and his oral testimony before the RRT, the former indicating that he had been charged for being an associate to Rahman, and the latter being that he had been charged with Rahman. It was also considered by the RRT to be unbelievable that the Applicant would have obtained two typed copies of the charge, one in English and one in Bangladesh, and that copies of the original could not have been photocopied. Such first charge was found to be implausible. Since the document relating to the second charge (the attack on the AL building) came from the same source, the authenticity thereof was also not accepted by the RRT.

(vii) The evidence of the Applicant's witnesses identified in [12] above provided unconvincing support in the view of the RRT. Neither claimed to have known the Applicant when he was a member of the Freedom Party. Mr Choudhury had heard from an unknown person that the Applicant had joined the Freedom Party. Mr Khan said that his wife had heard about the Applicant's membership. It was considered by the RRT to be remarkable that both witnesses described the Applicant as being active in the BNP, when the Applicant did not mention any role in this party throughout the course of his application to the Department.

Applicant's case for review by this Court

15 As I stated in [3] above, the Application before me was based upon the ground contained in s 476(1)(e) of the Act, which has been extracted in [3] above. The Applicant provided no written submissions in advance of the hearing or otherwise, and relied solely on oral address. The Applicant did not attempt to demonstrate before me how the RRT's decision involved either an incorrect interpretation of the law or an incorrect application of the law to the facts and circumstances of his Application for Review. The Applicant merely invited the Court to review findings of fact, such as the following.

(i) that the RRT erred in not accepting that injuries were occasioned to the Applicant in the circumstances described in [9] above;

(ii) that the RRT erred in rejecting the documentation relating to criminal charges brought against the Applicant and placed before it; and

(iii) that the RRT erred in finding that the Applicant was not a member of the Freedom Party.

(iv) that the RRT erred in its statement that it "received two anonymous faxes after the hearing concerning the Applicant but has given no weight to their content as it is not able to verify their source or their genuiness". Such faxes were not anonymous.

I should interpolate here to record that the Application for Review did not specify that the RRT had a duty to obtain any additional information. Section 359 of the Act provides that the RRT may obtain any additional information it considers to be relevant, but that does not of course impose on the RRT any duty to inquire: Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 at [27-32] per French J. In any event, the RRT considered the plausibility or otherwise of the Applicant's evidence which I have sought to summarise from the RRT Decision, and indicated that it was not satisfied that he was a member of the Freedom Party. The RRT was entitled to reach such a conclusion as a finding of fact, and this finding was material to the RRT's finding that the Applicant did not have a well-founded fear of persecution by reason of his political opinion and allegiance.

16 This Court is of course restricted to the grounds of review set out in s 476(1) of the Act: Minister of Immigration and Multicultural Affairs v Thiyagarajah [2000] HCA 9; (2000) 169 ALR 515 at 523 per Gleeson CJ, McHugh Gummow and Hayne JJ, and the Application for Review is founded upon paragraph (e) thereof. Moreover the RRT does not commit an error of law merely because it finds facts wrongly. The Federal Court cannot reverse the factual findings of the RRT as set out in [14] above: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at 240-1 per Sackville J (with whom North J agreed) and at 255-7 per Kenny J, and it is within the domain of the RRT alone to determine the weight it should give to the factual material placed before it. Furthermore, it is for the Minister or the RRT, and not the Court, to be satisfied or otherwise that the criteria for grant of a protection visa have been met: Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55; (2000) 175 ALR 585 at 611 per Gummow J. In my opinion the RRT clearly fulfilled its function in this respect. It reviewed the oral and written evidence presented by the Applicant, and thereafter made material findings of fact in relation thereto. As I have recorded in [14(i)] above, the Applicant was found by the RRT to be an unconvincing witness. Much of his evidence was found to be implausible and inconsistent. Subject to some final matters I will shortly address, the RRT was entitled to reject the Applicant's case by reason of its perceived inconsistencies and implausibilities in material aspects: Vichlenkova v Minister for Immigration and Multicultural Affairs [1999] FCA 1338 at [3]. A challenge to its findings and conclusions in [14] has not been demonstrated to be open to me, and I reject the same.

17 In relation specifically to the finding at [15(iv)] above, it was conceded on behalf of the Respondent Minister that the facsimiles were not in fact anonymous. An examination of such documentation in the Court books confirms the accuracy of this concession. Despite such error, it cannot be feasibly maintained by the Applicant that there was no evidence or no other material to justify the making of the RRT Decision within s 476(1)(g) or otherwise. An Application for Review based on s 476(1)(g) is not made out unless the RRT based its decision on a fact that did not exist: see s 476(4)(b). It is readily apparent from my summary of the RRT's findings and reasons set out in [14] above that the RRT's Decision was not based upon any finding of anonymity of such faxes, much less that any such finding could have been described in any event as critical: Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220 (per Black CJ with whom Spender and Gummow JJ agreed) in

18 relation to the analogous operation of s 5(3)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (see also Fernando v Minister for Immigration and Multicultural Affairs [1999] FCA 962 at [24-7] per Heerey J).

19 Accordingly, the Applicant has failed to establish that the RRT was incorrect in its conclusion that he did not have a well-founded fear of persecution for a Convention reason.

20 The Application should be dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 7 March 2001

Counsel for the Applicant:	In Person
Counsel for the Respondent:	Mr G.T. Johnson
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	12 December 2000
Date of Judgment:	7 March 2001