Sardar v Minister for Immigration and Multicultural Affairs
[2000] FCA 1474
•9 OCTOBER 2000
FEDERAL COURT OF AUSTRALIA
Sardar v Minister for Immigration & Multicultural Affairs [2000] FCA 1474
CITIZENSHIP & MIGRATION – protection visa – application for order of review of decision of Refugee Review Tribunal (“RRT”) affirming decision of delegate refusing grant – whether RRT failed to observe procedures required by the Migration Act 1958 (Cth) to be observed in connection with the making of the decision – whether the RRT referred to evidence upon which a finding of fact was based
Migration Act 1958 (Cth) ss 430, 476
Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 followed
Re Minister for Immigration and Multicultural Affairs ; Ex parte Durairajasingham (2000) 168 ALR 407 referred toAKTER ALI SARDAR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 706 OF 2000
EMMETT J
9 OCTOBER 2000
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 706 OF 2000
BETWEEN:
AKTER ALI SARDAR
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
9 OCTOBER 2000
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1 The application be dismissed.
2. The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 706 OF 2000
BETWEEN:
AKTER ALI SARDAR
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
EMMETT J
DATE:
9 OCTOBER 2000
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh. He arrived in Australia on 11 July 1997. On 4 September 1997 he lodged an application for a protection (class AZ) visa. On 13 March 1998 a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”), refused to grant a protection visa. On 7 April 1998 the applicant applied for a review of that decision. On 26 May 2000 the Refugee Review Tribunal (“the Tribunal”) affirmed the decision not to grant a protection visa. The applicant has now applied to this Court for an order of review of the Tribunal's decision.
The grounds stated in the original application made no reference to section 476 of the Migration Act 1958 (Cth) (“the Act”). When the matter was called on for hearing today counsel for the applicant sought leave to amend the application by substituting new grounds. That application was not opposed and leave was given. The amended grounds refer to sections 476(1)(a), (e) and (g). However, in the course of argument counsel for the applicant abandoned any reliance on section 476(1)(e) and 476(1)(g).
The ground based on section 476(1)(a) is that the Tribunal failed to observe procedures required by section 430 of the Act to be observed in connection with the making of the decision. In particular reliance is placed on section 430(1) paragraphs (c) and (d) which relevantly provide as follows:
“(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
………………………
(c) sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based.”
Under the heading “Claims and Evidence” in its reasons, the Tribunal, set out references to the assertions made by the applicant in support of his application. The reasons also refer to material described as “independent evidence”. The Tribunal records that according to his application the applicant is a 38 year old man who was born in Geneva Camp, Mohammed Pur, Dhaka, Bangladesh. He claims that he is a Bihari and is stateless. The applicant stated that he speaks English and Bengali and travelled to Australia using an Indian passport issued in India on 28 January 1997. He stated, according to the Tribunal, that he lived in Geneva Camp from his birth until 1997 and attended New Model High School for 10 years. The reasons record that the applicant claimed that he had attended the Australian Embassy in New Delhi to obtain an Australian temporary business visa.
The passport on which the applicant entered Australia also contains a Bangladeshi visa which was issued in Calcutta, India, on 3 July 1997. The passport contains stamps indicating that the applicant entered Bangladesh on 7 July 1997 and departed on 10 July 1997. The applicant stated to the Tribunal that he came to Australia because, after the war of liberation, Biharis were supposed to go to Pakistan but this did not occur. He claimed that he was treated as anti-Bangladesh because he is a Bihari.
In its reasons the Tribunal stated that it had considered evidence about the situation for Biharis in Bangladesh and in particular material contained in a number of documents as follows:
· United States Department of State Report on Human Rights Practices for 1999, “Bangladesh”, March 2000;
· Amnesty International, Amnesty International Report 1999, “Bangladesh”;
· Documentation, Information and Research Branch, Immigration and Refugee Board, Ottawa Canada, “Bangladesh: Current information on whether the government grants citizenship to Biharis have requested and if so the procedures containing it”, 24 November 1997; and
· Manchester Free Press, “The Peoples of Bangladesh, The Biharis”, December 1991.
Substantial extracts from the last document were set out in the reasons. After setting out those extracts the Tribunal concluded as follows:
“The independent evidence indicates that whilst most Biharis reside in refugee camps, where the conditions are poor, they are free to live anywhere in Bangladesh. Biharis who take out Bangladeshi citizenship are accorded full citizenship rights. Biharis who are not Bangladeshi citizens are disadvantaged in relation to employment because of their lack of citizenship. Further, the evidence indicates that Biharis living in refugee camps are not issued with Bangladeshi passports because they are not citizens of Bangladesh. The most recent reports from the US State Department and Amnesty International do not indicate that Biharis in Bangladesh face adverse treatment.”
The Tribunal recorded the applicant’s claims that if he returns to Bangladesh he will be discriminated against because he is a Bihari. The Tribunal records a number of “problems” with the applicant’s claims. The Tribunal considered that the evidence suggested that the applicant is in fact a national of India. However, it considered that his evidence before the Tribunal in relation to his Bangladeshi origins appeared credible as was his explanation that a friend filled in his application for a protection visa. The Tribunal was therefore prepared to give the applicant the benefit of the doubt and accept that he was born in Bangladesh and that he is not an Indian national.
However, the Tribunal was also dubious about the applicant’s claim to be a Bihari. The Tribunal considered that it was significant that the applicant does not speak Urdu. Given his claim that he was born to Urdu speaking parents and that he lived in a refugee camp from the age of 10, the Tribunal considered that he would have learnt to speak Urdu as a child had he been Bihari as he claimed. Nevertheless, notwithstanding the doubts about the applicant’s claim to be a Bihari, the Tribunal was, for present purposes, prepared to accept that he is a Bihari and is prepared to accept that he does not have Bangladeshi nationality.
The Tribunal recorded that during the hearing the applicant indicated that he had been refused Bangladeshi nationality. The Tribunal said that the independent evidence indicated that Biharis are not precluded from applying for and obtaining Bangladeshi nationality. If they do so they are accorded full citizenship rights. The Tribunal found that if the applicant does not have Bangladeshi nationality it is because he has not applied for it. That finding is the crux of the complaint made by the applicant before the Court.
As I understand the argument it was that the Tribunal did not adequately comply with section 430 in referring to evidence or other material on which that finding was made. While the amended grounds also referred to section 476(1)(g), namely that there was no evidence or other material to justify the making of the decision, that ground was subsequently abandoned. Section 430 must be understood in the light of several decisions of the Full Court, in particular Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845. Provisions such as section 430 allow a party dissatisfied with a decision to determine whether some reviewable error has been committed by the Tribunal in making its decision. That is one of the objectives sought to be achieved by section 430 – see Singh (above) at paragraph 36.
However, there is no specific requirement in section 430 for the Tribunal to give reasons for rejecting or attaching no weight to evidence or other material that would tend to undermine any finding it made. A requirement to set out findings on material questions of fact and refer to the material on which the findings are based is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with – see Singh (above) at paragraph 46 and 56.
There is a qualification that may apply to those general propositions. The obligations to set out reasons for a decision will often require the Tribunal to state whether it has rejected or failed to accept the evidence going to a material issue in the proceedings. If one of the reasons that actually induced the Tribunal to come to its decision was that it decided to reject or place no weight on particular material, then section 430(1)(b) would require a disclosure of that element of the Tribunal’s actual reasoning process because section 430(1)(b) requires that the written statements set out the reasons for the decision – see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.
However, I do not conceive of the Tribunal’s reasons in this case as falling within the qualification in those terms. It was not contended that there was no evidence to support the finding that the Biharis can apply for Bangladeshi citizenship. Rather the contention appears to have been that there was much more cogent evidence to the contrary. It is clear, nevertheless, that the weight to be given to evidence is a matter for the Tribunal. While section 476(1)(g) might be called in aid, where a decision is made in the absence of evidence of a material fact, that is not the case here.
This appears to me to be a case where the Tribunal has considered evidence from different sources and has made a decision based on evidence from one of those sources. It was not obliged to explain why it rejected evidence upon which it did not base its findings of fact. There appears to me to be adequate reference to the material upon which the findings of fact were based. That is to say, the Tribunal set out the independent evidence to which it had regard in reaching its conclusions.
I do not consider that any ground in section 476(1) of the Act has been established. Accordingly in my view the application should be dismissed with costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 23 October 2000
Counsel for the Applicant: Mr J Trevallion Counsel for the Respondent: Mr D Godwin Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 9 October 2000 Date of Judgment: 9 October 2000
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