Maharaj v Minister for Immigration and Multicultural Affairs

[2001] FCA 1757

FEDERAL COURT OF AUSTRALIA

Maharaj v Minister for Immigration & Multicultural Affairs [2001] FCA 1757

ASISH RITESH MAHARAJ & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1138 OF 2001

EMMETT J
16 NOVEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1138 OF 2001

BETWEEN:

ASISH RITESH MAHARAJ
FIRST APPLICANT

GEETANJALI REETA MAHARAJ
SECOND APPLICANT

PAYAL PRIYANKA MAHARAJ
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

16 NOVEMBER 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The notice of motion be dismissed.

1. There be 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	N 1138 OF 2001

BETWEEN:

ASISH RITESH MAHARAJ
FIRST APPLICANT

GEETANJALI REETA MAHARAJ
SECOND APPLICANT

PAYAL PRIYANKA MAHARAJ
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	EMMETT J
DATE:	16 NOVEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 10 October 2001 I ordered that the application in the proceeding be dismissed with costs.  However, I directed the respondent to inform the applicant of the orders that I made.  The applicant responded by notice of motion seeking an order that my orders, having been made in his absence, be set aside.  I gave the applicant the opportunity of making submissions as to the substance of the matters that would be raised, if my earlier orders were rescinded. 

2. As I indicated on 10 October 2001, the grounds set out in the application for an order of review appeared to have no relevance at all to the circumstances of the present case – see Maharaj v Minister for Immigration & Multicultural Affairs [2001] FCA 1559. The applicant today appeared in person and also made some written submissions as to why I should exercise my discretion to set the orders aside. I should say that if I were persuaded that there was at least an arguable case, I would be disposed to set aside my orders and consider the substance of the matter. However, Mr Maharaj has not persuaded that any of the grounds in s 476 could be made out.

3. As I perceive his submissions, Mr Maharaj is inviting the Court to review the Tribunal’s decision on the facts and to reach a different conclusion as to whether or not there is a real chance of Mr Maharaj being persecuted on racial grounds if he returns to Fiji.  The Tribunal, in its reasons, set out material from which it drew the conclusion that the position has improved in Fiji.  Mr Maharaj would dispute the conclusions that were drawn.  However, they are conclusions that were open to the Tribunal on the material before it. 

4. Mr Maharaj also complained that the Tribunal failed to take account of the matters to which he referred.  However, my reading of the Tribunal’s reasons indicates that consideration was given to the matters to which Mr Maharaj refers.  On  the other hand, the Tribunal did not give those matters the same weight that Mr Maharaj would invite to the Court to give.  Unfortunately for Mr Maharaj, that is not a matter that I can take into account.  The question of the weight and significance to be given to particular material is a matter for the Tribunal.  In all the circumstances, I am not persuaded that the decision of the Tribunal gives rise to any of the grounds of review in s 476. 

5. I should say that I am very sympathetic to Mr Maharaj’s position in the sense that he appears to have a genuine desire to remain in Australia and to be a decent member of the Australian community.  However, it is not my function to make decisions of that nature.  Having regard to the conclusion that I have reached, I have no option but to dismiss the notice of motion.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             7 December 2001

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	9 and 16 November 2001
Date of Judgment:	16 November 2001