Bhattachan v Minister for Immigration and Multicultural Affairs

[1999] FCA 547

FEDERAL COURT OF AUSTRALIA

Bhattachan v Minister for Immigration and Multicultural Affairs
[1999] FCA 547

IMMIGRATION – appeal against decision of Refugee Review Tribunal – no appearance by applicant – applicant’s claim of fear of persecution by reason of membership of a social group that being homosexuals – Tribunal’s suggestion that applicant might marry and lead a secret gay life discussed.

RABIN BHATTACHAN v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 851 of 1998

HILL J
27 APRIL 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 851 OF 1998

BETWEEN:	RABIN BHATTACHAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	HILL J
DATE OF ORDER:	27 APRIL 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        No order as to 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 851 OF 1998

BETWEEN:	RABIN BHATTACHAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	HILL J
DATE:	27 APRIL 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. Before the Court is an application by Mr Rabin Bhattachan, a citizen of Nepal, for review of a decision of the Refugee Review Tribunal which affirmed a decision of a delegate of the respondent Minister for Immigration and Multicultural Affairs not to grant to him a protection visa.

2. The basis on which it appears Mr Bhattachan applied for such a visa was that he was a person who owing to a well-founded fear of persecution by reason of his membership of a particular social group, namely, homosexuals in Nepal, was outside the country of his nationality and was unable or unwilling owing to such fear to avail himself of the protection of that country.

3. The matter was initially before me on 25 September 1998 at which time Mr Bhattachan was represented.  Orders were made, inter alia, listing the matter for hearing on 19 April 1999.  Orders were also made requiring the Minister to file and serve a bundle of relevant documents on or before 9 October 1998.  When the matter was called on 19 April 1999 Mr Bhattachan did not appear. 

4. It seems that on 22 October 1998 the solicitors who had previously acted for him ceased to act and thereafter Mr Bhattachan was unrepresented.  I duly adjourned the hearing until today requiring the respondent to notify Mr Bhattachan of the new hearing date and advising him that, if he did not appear on that new date, it would be assumed that he no longer wished to proceed with the matter. 

5. It appears that correspondence has been sent by registered mail to Mr Bhattachan and attempts made to contact him to no avail. Indeed it would seem that he no longer resides at the address at which he was formerly able to be contacted and his current address is unknown to the Australian Government Solicitor acting for the Minister.  In these circumstances counsel for the Minister requests that I dismiss the proceedings pursuant to Order 32, rule 2(c) of the Federal Court Rules on the basis that Mr Bhattachan is absent.

6. There is perhaps a question having regard to s 481 of the Migration Act1958 whether the Court may make any order other than an order set out in that section.  It is discussed by the High Court in the recent case of Abebe v The Commonwealth (unreported) [1999] HCA 14. Section 481 is an empowering section and confers upon the Court a discretion to make orders which affirm, quash or set aside a decision or such one or more of the orders referred to in s 481(1)(b), (c) and (d). The section does not expressly authorise an order which merely dismisses an action.

7. Let me say now that I would not affirm the decision under review. Indeed there is much to be said for the view that it is attendant with more than one legal error.  Whether those errors are such as would justify setting aside the decision is not a matter on which I have heard argument from counsel for the Minister. 

8. There is, however, a matter in the Tribunal's reasons which causes me great concern.  In the course of its reasons the Tribunal said:

   “The tribunal put to the applicant that homosexuality had existed in traditional Nepalese society, as it had in all societies, and asked whether he had considered living a secret gay life and perhaps even marrying, as many had and did.”

9. One can but assume that the Tribunal regarded that as a matter of some relevance.  Not only was it a matter put to the applicant but the Tribunal also recorded both that it had done so and the attendant answer to it in its reasons.  Although the Court has no jurisdiction to review a decision on the ground that the Tribunal took account of an irrelevant matter the fact that it did so deserves comment and criticism.  Indeed it seems to me that a copy of these reasons should be forwarded to the appropriate discrimination authorities for comment, or for their information.

10. As to the legal irrelevance of that comment, let it be assumed that the relevant social group were those of a particular political opinion, say fascism, to which another political opinion was opposed, say communism.  Would it be an answer to persecution on the grounds that a person was a member of a group espousing fascism to say that person might well cohabit with persons of the opposite political persuasion thereby disguising his or her political opinion?  That is to say nothing about the appalling consequences to both the applicant and the person with whom it was suggested he should cohabit to conceal his sexual orientation.

11. However, since the applicant has seen fit not to appear, I can but assume that he no longer is interested in the proceedings and I would accordingly dismiss the application.  In all of the circumstances I would make no order as to costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             27 April 1999

Counsel for the Respondent:	M J Leeming
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 April 1999
Date of Judgment:	27 April 1999