Talukder v Minister for Immigration and Multicultural Affairs

[2001] FCA 205

FEDERAL COURT OF AUSTRALIA

Talukder v Minister for Immigration & Multicultural Affairs [2001] FCA 205

BABUL MIAH TALUKDER v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 859 of 2000

HILL J
5 MARCH 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 859 OF 2000

BETWEEN:	BABUL MIAH TALUKDER APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE OF ORDER:	5 MARCH 2001
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1.        the application be dismissed;

2.        the applicant pay the Minister’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	NG 859 OF 2000

BETWEEN:	BABUL MIAH TALUKDER APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	5 MARCH 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, Mr Talukder, is a citizen of Bangladesh.  He first arrived in Australia in 1996 and applied in that year for a protection visa but subsequently withdrew that application.  In 1999, he lodged another application for a protection visa which was refused.  It is the second application that in due course came before the Refugee Review Tribunal (the “Tribunal”).  For Mr Talukder to succeed, the Tribunal had to be satisfied that he was a refugee within the meaning of the 1951 Convention Relating to the Status of Refugees as amended or supplemented by the 1967 Protocol Relating to the Status of Refugees (together referred to as the “Convention”).  That is to say, in accordance with Article 1A(2) of the Convention, a person who:

   “owing to a 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 ...”

   MR TALUKDER’S CASE BEFORE THE TRIBUNAL 

2. Mr Talukder’s case before the Tribunal was partly in writing and supplemented by oral evidence that he gave to the Tribunal.  He said that he had become a member of the Sharbahara party in 1988 and that his fear of persecution stemmed from that membership.

3. He said his life had been under “constant threat”.  He said he fled from Bangladesh to Saudi Arabia and indeed that the web of those opposed to the Sharbahara party had extended as far as Saudi Arabia and had caused him ultimately to come to Australia to seek protection.  He had, he said, studied political science at university and had at least been interested in studying a masters degree. 

4. The Tribunal dismissed his application for review.  It did so because, it said, it was not satisfied that Mr Talukder’s claims were credible.  The Tribunal was not satisfied he had ever joined the Sharbahara party.  In part, the reasons of the Tribunal for that were that it was not satisfied that his answers to a quiz on the ideology of the Sharbahara party were, so far as the Tribunal was concerned, satisfactory.

5. There were other matters which the Tribunal dealt with in its reasons which led it to this conclusion.  For example, Mr Talukder claimed that he had managed to avoid detection over a period of four years when, on his own story, he was attending university and had a job, both of which one assumes would be regular activities so that his whereabouts would at least in part have been known to those who wished to do him harm. 

6. It rejected also, as not genuine, the material which was said to relate to a false murder charge brought against him in Bangladesh, noting that the act of which Mr Talukder claimed to have been charged was committed while he was apparently out of Bangladesh so that proof of his non-participation in the act would have been, the Tribunal thought, simple. 

7. The Tribunal formed the view that Mr Talukder had left Bangladesh to take up a job in Saudi Arabia rather than to flee from persecution and that he had come to Australia to seek work.  The Tribunal was thus not satisfied that Mr Talukder had a well-founded fear of persecution for a Convention reason. 

8. Mr Talukder then applied to the Court for judicial review under the provisions of s 476(1) of the Migration Act 1958 (Cth). He was not represented before me, though he was assisted by an interpreter.

9. Mr Talukder has prepared written submissions in which he says that his application was incorrectly assessed and that the Court should consider the application to it sympathetically.  He refers in those submissions to an error of law but, in essence, the submissions seek to persuade me that I should accept the factual version which essentially formed the basis of Mr Talukder’s case before the Tribunal.  The gravamen really of the submissions is that the Tribunal:

   “ignored my claims and refused my application without giving specific gravity on my claims by mentioning that my claims does not fall within the scope of systematic harassment nor falls within the scope of the Conventions, by ignoring my possible risk of persecution upon return to Bangladesh.”

10. I have explained to Mr Talukder the very narrow basis of jurisdiction which I have.  In essence, such compassion as I might have is irrelevant to the jurisdiction which Parliament has conferred upon this Court.  Indeed, as I explained to him, Parliament has excluded from this Court’s ability to correct error matters such as that the Tribunal’s decision is unreasonable;  that it was achieved without giving natural justice and that it took into account irrelevant considerations.

11. There are those who might suggest that this Court’s participation in a process of such a limited nature is a black farce.  Be that as it may, it is open to an applicant, if able to demonstrate an error of law (and I put that matter in rather general terms, having regard to the exclusions of jurisdiction), to have the decision reviewed by the Court.  But, it is obviously very difficult for a person who is not a lawyer, let alone a person whose native language is not English, to be able to pinpoint or express the difference between an error of law and a wrong finding of fact.

12. I have carefully read the Tribunal’s reasons.  Ultimately, as I have sought to indicate, the Tribunal’s conclusion turned not upon any legal question but upon the Tribunal’s assessment of Mr Talukder’s credibility.  There may perhaps be circumstances where it may be possible to succeed on showing actual bias if everything an applicant says is disbelieved.  The present is not such a case and actual bias is not suggested.

13. The Tribunal’s findings were essentially findings of fact.  Matters such as whether Mr Talukder was or was not a member of the Sharbahara Party and, if so, whether his participation in that party assisting, as he said he did, an average of 50 poor people per month would have ultimately brought him to a situation where he had a well-founded fear of being persecuted were matters peculiarly for the Tribunal and not for this Court to decide.  This Court has no jurisdiction to set aside factual findings of that kind except, perhaps, in a very narrow category of case of which this is not one.

14. I have no discretion in the matter and no alternative in this case but to note that Mr Talukder has not made out the ground upon which he seeks to rely or, for that matter, any other ground available to him under s 476(1) of the Migration Act 1958 (Cth), no matter how sympathetically I might seek to assess his application. I must accordingly dismiss it. I direct that the applicant pay the Minister’s costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:  28 March 2001

The Applicant appeared in person
Counsel for the Respondent:	S Kaur-Bains
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	5 March 2001
Date of Judgment:	5 March 2001