Islam, H. v Minister of Immigration, Local Government & Ethnic Affairs

Re: HEDAYDUL ISLAM
And: THE MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC
AFFAIRS
No. G1173 of 1988
FED No. 70
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Administrative Law - Judicial review - refusal of the status of refugee - natural justice - procedural fairness - whether decision unreasonable - whether decision based on mere suspicion - Court's role in reviewing administrative decisions.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Convention on the Status of Refugees, 1951

Protocol on the Status of Refugees, 1967

Kioa and Ors v West and Anor (1985) 159 CLR 550

Singh and Anor v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4

Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502

HEARING

SYDNEY

#DATE 10:3:1989

Counsel for the applicant: Mr G. Scragg

Solicitors for the applicant: Legal Aid Commission of New South Wales

Counsel for the respondent: Mr C. Lonergan

Solicitor for the respondent: Australian Government Solicitor

ORDER

The application be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application for orders of review with respect to a decision made by a delegate of the respondent on 20 July 1988 that a determination not be made that the applicant has the status of refugee within the meaning of the Convention relating to the Status of Refugees made at Geneva on 28 July 1951 and the Protocol thereto made at New York on 31 January 1967.

The application is brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth). It was held in Minister for Immigration and Ethnic Affairs v Mayer (1985) 61 ALR 609 that, because of the reference in s.6A(1)(c) of the Migration Act 1958 (Cth) to a determination as to refugee status, a decision as to refugee status may be a decision of an administrative character made under a Federal enactment and therefore a reviewable decision for the purposes of the Administrative Decisions (Judicial Review) Act. In Gunaleela and Ors v Minister for Immigration and Ethnic Affairs and Ors (1987) 74 ALR 263, Sweeney, Lockhart and Gummow JJ. held that there was no decision under an enactment in a case where an alien sought refugee status but did not hold a temporary entry permit and had not entered Australia. In the present case, as no issue as to jurisdiction has been raised, I assume that the requirements for a decision under an enactment have been met.
The issue before the decision-maker was whether a determination of refugee status should be made under the 1951 Convention and its 1967 Protocol. The subject decision did not appear to take into account discretionary considerations. I should nevertheless make it clear that the making of a determination as to refugee status is a discretionary act. The Convention and its Protocol lay down appropriate guidelines for the identification and treatment of persons who are refugees from their homeland. But the Convention and Protocol are not part of the domestic law of the Commonwealth and they confer no private enforceable rights upon a person who claims to be a refugee. In making a decision as to refugee status, the respondent and his delegates may take into account considerations such as the best interests of Australia, the maintenance of good relations between Australia and a friendly nation, the scope or magnitude of a refugee problem and the preferable means of dealing with it and like matters.
The Convention and its Protocol are conveniently set out in the Handbook on Procedures and Criteria for Determining Refugee Status, published by the Office of the United Nations High Commissioner for Refugees. The definition of "refugee" in Article 1 of the 1951 Convention, as amended by the 1967 Protocol reads, inter alia:-

"For the purposes of the present Convention, the term 'refugee' shall apply to any person who: ...

(2) ...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

That definition contains both objective and subjective elements. The Handbook on Procedures, mentioned above, understandably emphasises the subjective elements in the definition, that is the criteria of "fear of being persecuted" and "unwilling to avail himself". It is worth pointing out, however, that due to the discretionary elements in the decision-making task, to which I have already adverted, and to the lack, at least in Australia, of adequate procedures for the finding of subjective facts, it is not surprising that decision-making in this area tends to lay emphasis upon objective facts.
In this country, there has been established a Determination of Refugee Status Committee ("the DORS Committee") to make recommendations to the Minister and his delegates with respect to refugee status. A brief resume of the nature of the DORS Committee and of its operations appears in paras. 74 and 75 of the Report by the Administrative Review Council on Review of Migration Decisions, published in 1986. The DORS Committee consists of four persons, a representative each of the Department of Immigration, Local Government and Ethnic Affairs, of the Department of Prime Minister and Cabinet, of the Department of Foreign Affairs and of the Attorney-General's Department, with the Australian representative of the United Nations High Commissioner on Refugees acting as an observer. The Committee does not, at least as a general rule, itself interview persons seeking refugee status but makes decisions on the papers which are before it. The DORS Committee relies quite heavily upon the extensive knowledge and expertise held by the four members of the Committee with respect to political events and the level of political tolerance or persecution in other countries. This method of proceeding is reflected in the handling by the DORS Committee of Mr Islam's application for refugee status.
Mr Islam, who is thirty-five years of age, is a citizen of Bangladesh. He arrived in Australia on 22 December 1986. On 28 January 1987, he lodged a formal application for refugee status which stated inter alia:-

"I wish to claim refugee status because I am fearful of returning to my homeland, Bangladesh. I believe that if I returned to Bangladesh I would be arrested and detained because of I was associated with the Bangladesh National Party. I first joined the Bangladesh National Party in

1983. At first I was an ordinary member and then in 1984 I became Cultural Secretary for the Dhaka Region of the party. My duties as Cultural Secretary are mainly to arrange party meetings and functions of various sorts. In May 1986 the Government of Bangladesh announced that it would hold a presidential election in November of that year. My party adopted a policy opposing the election. In the months that followed I went around the region of Dhaka organising meetings and functions in opposition to the election. Police harassment of these meetings was immediate; they would break up the meetings and arrests would be made. I was personally present at four meetings in which this occurred: * In May 1986 at the Baitul Mokero (this is a large park in the middle of Dhaka): * At Kaptan Bazzar in August 1986; * At Nowabpur in the same month. At Kaligong, Satkhir in September 1986. I managed to evade arrest on those four occasions. In August 1986 the Party Secretary was arrested and I became fearful that I too would be arrested. So I left Bangladesh for Thailand on the 22 August

1986. After nine days I rang party members in Bangladesh who assured me that it was safe to return; I did so on the 31 August 1986. After my return I attended a public meeting at Kaligong, a town outside of Dhaka. The meeting was disrupted by police and members of the audience were attacked and tear gas thrown in their midst. A few of my friends were arrested but I avoided arrest. Two or three days later members of the Special Force visite my home, but I was absent. The Special Force are vigilante group which does the bidding of the government. So I went into hiding and once again left Bangladesh on the 18 September 1986. Whilst in Bangkok I spoke by telephone to a friend remaining in Bangladesh. He told me that a warrant for my arrest had been issued after I left the country. I travelled to Thailand where I remained until the 24 September and then journeyed to Japan where I remained until the 20 December. In Japan I met a fellow countryman who told me that I should go to Australia to claim refugee status there. So I left Japan and travelled to Hong Kong which I left on the 25 December 1986, finally arriving in Sydney the next day after an overnight flight."

On 28 April 1987, Mr Islam was interviewed at length by a Mr Jones, a Migration Officer. I need not set out any of the questions and answers as they merely amplify the statements above.
In support of his application, Mr Islam forwarded copies of a number of letters he had received from Bangladesh. The first letter came from a friend, Mr Kabir, dated 10 January 1987, and read as follows:-

"Best wishes to you. Hope that you are doing well. I am very much glad to know that you have reached Australia. You have really done a good thing leaving the country otherwise there was no any alternative for you to save yourself. You already know that there is a warrant against you following the party meeting at Satkhira Upo-Zilla; Kaligong early in September last 1986. Policeman is searching you to arrest. And still oppression is going on our party by the ruling party. You do not come back to Bangladesh, if you come back immediately you will be arrested. So, any how try to take shelter there in Australia. Being the victim of the present political circumstances like you some of our comrades are also trying to escape from this country. Dear comrade wish your happy life in Australia. Pray for us. So much for the day."

For a reason which has not been explained, Mr Islam's application was not considered by the DORS Committee until 30 March 1988. The minutes of that meeting record inter alia:-

"DILGEA VIEW

. Whilst we accept that Mr Islam may have been a low level BNP activist, we note that he had never come to the adverse attention of the authorities during the Martial Law period, when political activity was outlawed. . Bearing this in mind, his claim to have only become of interest to the authorities or pro-government groups subsequent to the lifting of martial law and the resumption of party politics lacks credibility. . Although we understand from DFAT that high-level BNP office holders have periodically been subject to harassment and intimidation, we do not assess that Mr Islam had a profile such as to be targetted for such treatment. . In this context, without commenting on the authenticity or otherwise of the arrest warrant, we find it incongruous that such a warrant would have been issued at all, for offences unspecified, and that it could have fallen into the hands of Mr Islam's friends. . Mr Islam had no difficulty in obtaining a passport by regular means and travelling into and out of Bangladesh, and we consider that he could return in safety. At worst, he could be subject to some harassment from local pro-government zealots if he were to resume his activities on behalf of the BNP. This would not, however, constitute persecution in Convention terms. . Not a refugee.

Mr Islam also handed to the Department the warrant referred to in that letter. The warrant was stamped with the stamp of the Court of Upo-Zilla Magistrate at Kaliganj. The warrant expressed itself as issuing under Clause 75 of the Criminal Code for the arrest of Mr Islam, the reason for the prosecution being that complaints had been received. Copies of other letters from Mr Islam's friends and relatives were also handed over to the Department. One such letter stated inter alia:-

"A few days ago your father and younger brother were taken into custody. After four or five days your father was released, but he was very ill. At present I don't know the whereabouts of the younger brother (Titu). Everybody is very worried. The Government officials ask the same question all the time - Where is Hedayad staying? Tell us or else it will be the end of you. N.B. The letter may arrive late because, due to strikes, the transport system is not operating efficiently. That's all for today. If possible, will write in detail later on."

A copy of that letter was forwarded by Mr Islam's solicitor to the Department on 4 January 1988 with the following comments:-

"Please find enclosed herewith copy of a recent letter received by my client from his relatives in Bangladesh. The letter is accompanied by a translation and a copy of the envelope in which the letter arrived.

As you will see from the substance of the letter, the authorities in Bangladesh are still interested in my client's whereabouts. I refer you to the uppermost paragraph on the second page of my letter of 7 October 1987. This letter is further proof that there is 'a serious possibility' that my client will be arrested, should return to Bangladesh." DFAT VIEW:

. While Mr Islam was still in Bangladesh he was never questioned, arrested, imprisoned or detained. He was able to obtain a passport, leave Bangladesh, return and leave again without difficulties. . The claim that he is wanted by the authorities is not convincing. It is based on hearsay and on a copy of an arrest warrant.

. The hearsay account is inconsistent. At Q.22, he said that some of his friends had been arrested and that the authorities had obtained information about Mr Islam's activities from them. At Q.24, he said that he didn't know which of his friends had informed on him. By Q.94, he said that 'I am not sure any of them has given my name.' . It is worth noting that it is easy to obtain a false arrest warrant in Bangladesh. This particular arrest warrant is dubious in terms of the contradiction between Mr Islam's account of his activities and the charge on the warrant, 'Complaints have been received.' . Although senior BNP organisers risk harassment and detention, Mr Islam was not one of them. He and the thousands of other minor BNP officials tend to be ignored by the authorities. . Not a refugee.

A-G's VIEW:

. Reply on previous assessments. . Not a refugee.

PM and C VIEW:

. Agree with previous assessments. . Not a refugee."

Accordingly, the DORS Committee recommended against the grant of refugee status.

That material was subsequently considered by a delegate of the respondent, Ms Sue Kirby. A statement supplied from Ms Kirby of her reasons for decision discloses inter alia:-

"6 I considered the recommendation of the Determination of Refugee Status Committee. 7 A refugee is defined in the Convention, as amended by the Protocol, as a person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. In considering this case I had regard to the following: . The Department of Foreign Affairs and Trade advised me that it was easy to obtain a false arrest warrant in Bangladesh. I noted the DFAT view that this particular arrest warrant was dubious because of a contradiction between Mr Islam's account of his activities and because of the charge on the warrant which read: 'Complaints have been received'. . I took into account further DFAT advice that, whilst senior Bangladesh National Party organisers risked harassment and detention; minor ones, such as the applicant, numbered in the thousands and tended to be ignored by the authorities in Bangladesh. . I accepted that Mr Islam may have been a low level BNP activist but noted that he had never, during the period of Martial law in Bangladesh, when political activity was outlawed, come to the notice of the Bangladesh authorities. He was never questioned, arrested, imprisoned or detained. He obtained a travel document and he travelled to and fro without hindrance. I was unable to accept that he became of interest to the authorities, or to pro-government groups in Bangladesh, after the lifting of Martial law and subsequent to the resumption of party politics. 8 I concluded that the Applicant did not have a well-founded fear of persecution should he return to Bangladesh. Accordingly, I determined that he was not a refugee within the meaning of the Convention and related Protocol."

In this application, the principal ground relied upon by Mr G. Scragg, counsel for Mr Islam, was that there had been a breach of the rules of natural justice in that Mr Islam was not made aware earlier that any challenge would be made to the warrant of arrest which he had produced or that any reliance would be placed upon the view of the DFAT representative on the DORS Committee that "it is easy to obtain a false arrest warrant in Bangladesh".
In Kioa and Ors v West and Anor (1985) 159 CLR 550, Mason J. said at pp 585-6:-

"The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary intention.

...

In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations (cf Salemi (No 2) (CLR at p 451, per Jacobs J)."

At p 615, Brennan J. pointed out that in the circumstances of a case the content of the rules of natural justice may be reduced even to nothingness. But there appears to be no element of urgency and no particular element of security of national interests which it would have required that Mr Islam not receive procedural fairness, as that concept is ordinarily understood.
The general procedures adopted by the DORS Committee and by Ms Kirby were not challenged. It was not alleged by Mr Scragg that Mr Islam should have been personally heard by the DORS Committee or that the procedures set up in this country for dealing with refugee applications are unfair to the applicant as they are not appropriate for a consideration of the subjective elements involved in a refugee application.
The issue is thus within a very narrow compass. In Kioa's case, Mason J. said at p 587:-

"The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if, in fact, the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter Re HK (An Infant)

(1967) 2 QB 617."

As his Honour pointed out, there are two main guides in this area, the first being that a decision-maker is not bound or even expected to accept all or even the substance of what is put to him by an applicant and the second being that a decision-maker should raise for an applicant's attention matters with which the applicant has not dealt and with which the applicant has not had a fair opportunity to deal because the issue has not been brought to his attention.
An example of the first guide may be seen in the remarks of Forster J. in Singh and Anor. v Minister for Immigration and Ethnic Affairs (1987), 15 FCR 4 at p 10 where his Honour said:-

"Persons who make submissions to Ministers or any other authority have no absolute right to have what they say on matters of fact believed nor are they entitled to have a reasonable expectation that this will be so."

Similarly, in Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at p 506, Fox J. said:-

"In the present case, as his Honour found, the material which was prejudicial to the appellant had been provided by the appellant herself. In the circumstances, I consider that the decision-maker was not required to give the appellant a chance to comment on the view that he had taken of it; to do so would amount to a general requirement that a decision-maker make known in each case his view or evaluation of the material that an applicant puts forward: see Kioa per Brennan J at p 380. His thought processes, if not unreasonably based on evidence, or other material, are a matter for him. I agree with his Honour that there was no denial of natural justice in this respect."

On the other hand, Kioa's case is an example of a case where it was thought that the principles of natural justice had not been complied with as the applicant had not been given a fair opportunity to deal with a matter prejudicial to him. Similarly, in Waniewska v Minister for Immigration and Ethnic Affairs (1986) 70 ALR 204, Keely J. set aside an order of deportation on the ground that the applicant had been deprived of natural justice by the failure of the delegate of the Minister to give the applicant an opportunity to respond to adverse inferences drawn by him, particularly as, in drawing those adverse inferences, the delegate had had regard to mere conjecture.
These cases are illustrations. In determining whether a decision should be set aside for lack of procedural fairness, the two guides I have mentioned have a part to play. There are no technical rules to be applied. The question is always whether, in the particular circumstances of the case, the applicant's position was considered fairly from a procedural point of view. Necessarily, such an issue involves a consideration of the part which the significant material played in the decision-making process, whether it was material which came from or on behalf of the applicant or from another source, whether the material raised a question with which the applicant could reasonably have been expected to deal and like matters.
Both Mr Scragg and Mr G.L. Lonergan, counsel for the respondent, submitted that the decisions of the DORS Committee and of Ms Kirby turned upon the view taken of the alleged warrant for arrest and that the refusal of refugee status flowed from the finding that the arrest warrant was not valid. Mr Scragg founded his case upon this submission. Mr Lonergan took the same stance but went on to submit that the arrest warrant had been put forward by the applicant and that it was up to the decision-maker whether or not to accept it.
Were I of the view that the arrest warrant had been as crucial to the decision as both Mr Scragg and Mr Lonergan submitted it was, I think I would have found in Mr Scragg's favour. However, the determination of refugee status was not refused because Mr Islam had submitted a false warrant in support of his case but because the DORS Committee and Ms Kirby did not accept that he was, as he alleged himself to be, a refugee.
It is necessary to keep in mind the point I have made above, that there was no challenge to the general practice whereby the members of the DORS Committee relied upon their expertise in relation to political circumstances and political persecution in the applicant's homeland. I read the discussion in the DORS Committee as indicating the firm view that Mr Islam was not such a person as would have been subject to persecution or ought to have had any well-founded fear of political persecution in Bangladesh. This clearly was the view of the officer of DILGEA for that member expressed the view that "we do not assess that Mr Islam had a profile such as to be targetted for such treatment." This was also the view of the officer from DFAT who expressed the view that "while Mr Islam was still in Bangladesh he was never questioned, arrested, imprisoned or detained. He was able to obtain a passport, leave Bangladesh return and leave again without difficulty." That was the reason for the DORS Committee's recommendation. The members of the DORS Committee did not consider Mr Islam to have engaged in political activities of such a nature that he would have been the subject of political persecution in Bangladesh.
The DILGEA and DFAT members of the DORS Committee went on to make comments concerning the authenticity of the alleged warrant and the DFAT member expressly referred to the case of obtaining a false arrest warrant in Bangladesh. In discussing this matter, however, the members of the DORS Committee were simply dealing with a part of the evidence which was before them. The warrant was a sufficiently significant part of the evidence for them to make express comment upon it. But, as I have said, Mr Islam's application for refugee status was not refused because the Committee considered the arrest warrant to be false. The determination of status was refused because the Committee considered Mr Islam was not a refugee.
Necessarily, material which is put to a decision-maker by an applicant may have such apparent veracity and weight that it would be improper for a decision-maker to act contrary to that material, without raising with the applicant any doubts he may have as to it or without making further enquiry. However, the material which was forwarded by Mr Islam did not persuade the DORS Committee as to its veracity and, save as to the alleged warrant, no comment was made thereon. Looking at the material as a whole, it does not seem to me that there was such inherent credibility in it that it ought not to have been lightly rejected or rejected without further enquiry and without notice to Mr Islam. The letters may have been stating the truth but they could as easily have been written to assist Mr Islam's application for refugee status. Perhaps the most surprising letter is the one which mentions the arrest of Mr Islam's father and brother. If they had been arrested, one would have thought that Mr Islam would have a very strong case indeed and that details and proof of the arrests would have been supplied. Yet, the solicitor did not comment upon these alleged arrests but merely forwarded the letter in support of the proposition that "the authorities in Bangladesh are still interested in my client's whereabouts." The alleged warrant itself did not have substantially inherent veracity and weight for the warrant was in Australia, in Mr Islam's control, not in the hands of political authorities in Bangladesh.
Thus, there was no breach of natural justice so far as the consideration by the DORS Committee or by Ms Kirby was concerned. It is certainly to be noted that, in the three points listed by Ms Kirby in paragraph 7 of her reasons for decision, she referred first to the matter of the arrest warrant. Nevertheless, the crux of her reasoning was that set out in the third point in paragraph 7, namely that she did not accept that Mr Islam had become of interest to the authorities in Bangladesh after the lifting of martial law and subsequent to the resumption of party politics. Ms Kirby therefore rejected the alleged warrant, as she also rejected the "spate of letters from family and friends" to which she had earlier referred in her statement of reasons.
Mr Scragg submitted that the recommendation of the DORS Committee and the decision of Ms Kirby was invalid as the statement by the DFAT member of the DORS Committee that it was easy to obtain a false arrest warrant in Bangladesh was mere conjecture. The principle to be applied is no doubt clear. It was applied by Keely J. in Waniewska v Minister for Immigration and Ethnic Affairs, cited above. I discussed the issue at some length in Ruangrong v Minister for Immigration and Ethnic Affairs, (unreported, 29 March 1988) and there stated that I accepted the proposition that the nature and gravity of a power and the context in which it is called for may require that the facts upon which the decision is based not be established by mere suspicion or speculation and that a decision based on such suspicion may, in the circumstances of the case, be unreasonable.
In the present case, however, the decision was not made without evidence and was not unreasonable. There was evidence before the members of the DORS Committee. The process of decision-making in which the DORS Committee engaged involved it in drawing upon the specialist knowledge held by the members of that Committee, such specialist knowledge being obtained from a wide variety of sources. Ms Kirby was entitled to draw upon the information set out in the minutes of the DORS Committee. Having regard to the nature of the decision to be made, that information was evidence upon which the DORS Committee and Ms Kirby were entitled to rely.
And the decision was not unreasonable for it was based upon the understanding by the DORS Committee and by Ms Kirby of the political climate in Bangaldesh at the relevant time. This is not a case where an entry permit was being cancelled because of an alleged misstatement or because of the production of a false document. Nor was consideration being given to Mr Islam's deportation because of a false statement or a false document. In such circumstances, it may have been unreasonable to conclude that the arrest warrant was a false document without making further enquiries about the matter and without giving Mr Islam a chance to deal with the issue. In the decision as to refugee status, the alleged arrest warrant was no more than part of the material submitted by Mr Islam. It is difficult to see that it could have had much weight for it was in Australia not in Bangladesh. The decision to reject refugee status was not a decision to which a reasonable decision-maker could not have come.
Mr Scragg submitted that the decision was made solely by reference to the view taken with respect to the arrest warrant and that the decision failed to take into account the other material which was before the DORS Committee and Ms Kirby. Mr Scragg submitted that the evidence showed overwhelmingly that Mr Islam had a fear of political persecution in Bangladesh which was well-founded. However, neither the consideration of the DORS Committee nor Ms Kirby's decision were so limited. The crux of both decisions was that, having regard to the political circumstances which prevailed in Bangladesh during 1986, it was unlikely that Mr Islam would have been the subject of persecution by authorities in Bangladesh.
Mr Scragg submitted that Ms Kirby's finding that Mr Islam had not come to the notice of the authorities after the lifting of martial law was incorrect for, he submitted martial law in Bangladesh was not lifted until January 1987. It is clear, however, that Ms Kirby was speaking of the time during 1986 when a Presidential election had been called and of a time when political activity in association with the election was permitted. I see no error in this respect.
Mr Scragg submitted that evidence showed that Mr Islam had come to the notice of authorities in Bangladesh because of his political activities. However, the assessment of the facts was for the DORS Committee and for Ms Kirby. Their findings of fact cannot be challenged provided they took into account all material considerations and excluded from their consideration matters which were irrelevant and provided also that their decisions were not unreasonable. The facts were for them. They were entitled to conclude, if they chose to do so, that Mr Islam had not been questioned, arrested, imprisoned or detained or stopped at Dhaka airport and that, having regard to the position that he held in a political organisation to which he belonged, he was not likely to be subject to persecution.
The statements which Mr Islam put to the DORS Committee, and which were before Ms Kirby, with respect to his harassment were allegations. The DORS Committee and Ms Kirby were entitled to reject these allegations if they saw fit to do so and provided they did so on a properly reasoned basis, as they did.
Mr Scragg submitted that the DORS Committee and Ms Kirby failed to take into account that the applicant was sought by a vigilante group in Bangladesh, known as the Special Force, and failed to take into account the letters from friends and relatives. However, I am satisfied that the material put by Mr Islam was taken into account though the allegations therein were not accepted.
Mr Scragg submitted that a submission by the applicant's solicitor of 7 October 1987 and the submission of 4 January 1988 enclosing the letter which referred to the arrest of the applicant's father and brother were not taken into account by the DORS Committee and by Ms Kirby. Certainly, these matters were not specifically referred to in the minutes of the DORS Committee or in Ms Kirby's reasons for decision; but it would be unsafe to conclude therefrom that they were ignored. Ms Kirby's reasons for decision showed that she had regard to the file 87/4097 of the Department of Immigration, Local Government and Ethnic Affairs. I would not assume that either document was not on the relevant file. Neither document added anything to the substance of Mr Islam's application. If the contents of Mr Islam's original statement in support of his application had been accepted, he would have been granted refugee status. But they were not. The two letters from Mr Islam's solicitor simply added material to the same effect. They did not necessitate special comment.
Mr Scragg also submitted that the evidence before the Court established that Mr Islam had been the subject of persecution and harassment in Bangladesh and had a well-founded fear of persecution and that, those being the facts of the case, the decision-maker failed to take those facts into account and based her decision on facts that did not exist. I reject this submission for reasons similar to those I stated in Ruangrong v Minister for Immigration and Ethnic Affairs, cited above. In brief, judicial review is concerned with the process of decision-making, not with the substance of the decision made. As Brennan J. pointed out in Waterford v The Commonwealth (1987) 61 ALJR 350 at p 359, the assessment of facts is a matter for the decision-maker, not for this Court and a decision-maker makes no error of law or error susceptible of judicial review simply by making a finding of fact contrary to that to which the Court may have come if the matter had been before it. For these reasons, it is not the function of this Court to form its own view of the facts of the case.
Mr Scragg also submitted that the evidence before Ms Kirby disclosed that Mr Islam was more than "a low level BNP activist". But Ms Kirby's statement to this effect was not intended to be precise and should not be read as such. It was intended to reflect a finding that Mr Islam had not been involved in the BNP at a level which would have attracted harassment or persecution by government authorities. This was a finding of fact which was open to the decision-maker to make.
For his part, Mr Lonergan cross-examined Mr Islam with a view to establishing that the arrest warrant was false and that the letters from friends and relatives had been intended to support Mr Islam's application for refugee status. The information obtained by this cross-examination was irrelevant to the task of judicial review which the Court has to undertake and I have not taken it into account. Mr Lonergan submitted that the additional evidence made it futile to remit the matter for reconsideration. However, were I satisfied that the decision as to refugee status was flawed because of some failure on the part of the decision-maker, I would remit the matter for consideration. A decision as to refugee status is a matter for the respondent and his delegates and must turn principally upon matters of which they are the best judge.
For these reasons, the application will be dismissed with costs.

[1989] FCA 70

10 MARCH 1989