Saha v Minister for Immigration and Multicultural Affairs

[2000] FCA 1494

FEDERAL COURT OF AUSTRALIA

Saha v Minister for Immigration & Multicultural Affairs [2000] FCA 1494

CITIZENSHIP & MIGRATION – protection visa – application for order of review of decision of Refugee Review Tribunal affirming decision of delegate refusing grant – no question of principle

CHITTA RANJAN SAHA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 559 OF 2000

EMMETT J
12 OCTOBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 559 OF 2000

BETWEEN:	CHITTA RANJAN SAHA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	12 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 559 OF 2000

BETWEEN:	CHITTA RANJAN SAHA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	12 OCTOBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of India.  He and his wife arrived in Australia on 25 March 1998.  On 22 April 1998 he and his wife lodged an application for a protection (class AZ) visa.  On 25 May 1998 a delegate of the Minister refused to grant protection visas and on 26 June 1998 the applicants sought review of that decision by the Refugee Review Tribunal (“the Tribunal”).  On 28 May 1998 a daughter was born in Australia to the applicant and his wife.  On 21 April 1999 an application for protection visa was lodged in her name and on 29 April 1999 the Minister’s delegate refused to grant a protection visa to the daughter.  On 14 May 1999 an application for review of that decision was lodged with the Tribunal.  The Tribunal joined the two applications for the purposes of review.  On 7 April 2000 the Tribunal affirmed the decision not to grant protection visas. 

2. On 29 May 2000 the present applicant filed an application for an order of review of the decision of the Tribunal.  The matter was listed before Wilcox J on 6 July 2000, when directions were given for filing a bundle of relevant documents and an amended application and written submissions.  The matter was listed for hearing at 2.15 pm on 21 August 2000.  Wilcox J directed the solicitor for the Minister to forward to the applicant a copy of the short minutes of the directions together with a letter drawing his attention to the necessity of attending at the hearing of 21 August 2000. That direction was complied with.  The Minister’s solicitor informed the applicant that upon failure to attend the Court on 21 August the Minister’s solicitor was instructed to seek orders that the application be dismissed and that the applicant pay the Minister’s costs.

3. The hearing date of 21 August was vacated because of non-compliance by the Minister with the directions for the filing of the bundle of relevant documents, or possibly because of incapacity on the part of the applicant.  On 21 August 2000, Wilcox J’s associate received from the Minister’s solicitor a facsimile communication attaching a copy of a document purporting to be a certificate by a medical practitioner that the applicant “is unfit for duty”. 

4. On 22 August 2000 the Minister caused to be served on the applicant the bundle of relevant documents together with a letter informing the applicant that the matter had been fixed for hearing at 10.15 am on 12 October 2000.  The letter said, inter alia:

   “You are required to attend Court on that day.  Should you fail to appear I am instructed to seek an order that this application be dismissed with costs.”

5. Yesterday, my associate received a facsimile communication from the Minister’s solicitor enclosing copies of two documents purporting to be medical certificates, to the effect that the applicant “is unfit for work” from 28 September 2000 to 4 October 2000, and from 10 October to 14 October 2000.  When the matter was called on today, there was no appearance for the applicant.  The Minister therefore sought an order that the proceedings be dismissed, pursuant to Order 32, rule 2(1)(c).  That rule provides that if, when a proceeding is called on for trial, any party is absent, the Court may, when the party absent is an applicant, dismiss the action.

6. I have considered the reasons of the Tribunal for its decision of 7 April 2000.  The Tribunal in its reasons recorded that there are inconsistencies in the applicant’s account, some of which emerged during the hearing, and which remain unresolved.  The Tribunal considered that those inconsistencies had a direct bearing upon the applicant’s claims to fear prosecution.  The Tribunal considered that the inconsistencies in the applicant’s account on the points that were dealt with in detail in the reasons, indicated that the applicant’s claims to have experienced persecution are not credible.

7. The Tribunal did not accept that the applicant had been charged with any offences by the authorities in India, as he claimed.  It followed therefore, that the Tribunal did not accept the applicant’s reasons for leaving India were concerned with his having been charged with offences by the police.  The Tribunal did not accept that the applicant was a politically active worker of the Barasat Congress Party, as he claimed.  The Tribunal did not accept that the applicant has been a target of the Communist Party of India as he claimed.

8. The Tribunal found that the applicant has not experienced harassment or persecution in India, for reasons of his political opinion.  The Tribunal was not satisfied that the applicant has a well-founded fear of persecution on the grounds of his political opinions in India.  Further, the Tribunal held that if it had accepted the applicant had experienced persecution on the grounds of his political opinion it would have been reasonable for him to relocate to another state in India where the Congress Party is in power. 

9. The grounds specified in the application for review to this Court are as follows: 

   “The Tribunal officer exercised power under section 431 of the Migration Act 1958 and decided that I am not a person, nor are my immediate family unit persons to whom Australia has protection obligations under the Refugee Convention. 

   I certainly believe that the Department of Immigration, as well as the Refugee Review Tribunal, has certainly made an error of law being an error involving an incorrect interpretation of the application of the law to the facts as found by the officer who made the decision.”

   No particulars are given and no submissions in writing have been made pursuant to the directions given by Wilcox J.  In the circumstances it appears that there is no merit in the application.  However, in the light of the application on behalf of the Minister pursuant to Order 32 rule 2, I consider that it is appropriate to dismiss the action pursuant to that rule, with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             23 October 2000

Solicitor for the Respondent:	Mr M Allatt for the Australian Government Solicitor
Date of Hearing:	12 October 2000
Date of Judgment:	12 October 2000