Saha v Minister for Immigration and Multicultural Affairs

[1999] FCA 300

FEDERAL COURT OF AUSTRALIA

Saha v Minister for Immigration and Multicultural Affairs [1999] FCA 300

GOUTAM SAHA v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 954 OF 1998

LEHANE J
8 MARCH 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 954 OF 1998

BETWEEN:	GOUTAM SAHA Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	LEHANE J
DATE:	8 MARCH 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant seeks review of a decision of the Refugee Review Tribunal dated 12 August 1998 by which the Tribunal affirmed a primary decision not to grant him a protection visa. 

2. The applicant's claim in brief was that he was a Bangladeshi and a member of the Awami League who, having regard to activities directed against him described in the Tribunal’s reasons, feared that upon his return to Bangladesh he would be persecuted by Muslim fundamentalists.  The applicant is a Hindu.  In support of his claim to be a citizen of Bangladesh, the applicant produced a number of documents, which were before the Tribunal.  However, the applicant came to Australia on an Indian passport and before the Tribunal also was the applicant's application for an Australian visa made on the footing that he was an Indian citizen who had been born, contrary to the evidence given by the applicant to the Tribunal, in India. 

3. The applicant asserted before the Tribunal and maintained in oral and written submissions before me that the application for an Australian visa and indeed, his acquisition of an Indian passport, were made on a false basis.  He simply signed forms.  The true position, as evidenced (the applicant claims), among other things, by documents relating to his education, is that he is a Bangladeshi.

4. One of the fundamental principles of judicial review by this court of decisions of the Refugee Review Tribunal is that the court has no power to engage in what is known as merits review.  In particular, the Court cannot review decisions on matters of fact open to the Tribunal on the material before it.

5. In this case, the Tribunal had before it the material submitted by the applicant on the basis of which he claimed to be a Bangladeshi citizen.  It had before it also material capable of being regarded as contradicting the applicant's assertion, that is to say, evidence as to his Indian passport, his application for an Australian visa and documents supplied by an employer in support of the visa application.  It is impossible for me on judicial review to hold that the Tribunal was not entitled to decide as a matter of fact, on the basis of the material before it, that the applicant was an Indian citizen, not a citizen of Bangladesh.  That decision was within the province of the Tribunal.  It is not open to review. 

6. Before leaving that aspect of the matter, however, there is one particular circumstance which I should mention.  The delegate who made the primary decision to refuse the applicant a protection visa did so on the basis of an acceptance that the applicant was a citizen of Bangladesh.  The applicant, in his written submissions, suggested that the Tribunal ought not, in circumstances where the delegate was content to proceed on the footing that he was a Bangladeshi, to have reached the contrary conclusion that he was an Indian national.  The answer to that submission is that the question is one of fact.  There was material before the Tribunal additional to that which had been before the delegate, and in any event, it is open to the Tribunal as a body, whose function is merits review and to make (standing in the shoes of the primary decision maker) the correct or preferable decision, to make different findings on questions of fact from those made by the Minister or the Minister's Delegate. 

7. The Tribunal decided that in any event, even if the applicant were properly to be regarded as a matter of fact as a Bangladeshi national, nevertheless he did not have a well founded fear of persecution for a Convention reason.  Again the applicant has put before me a number of matters of fact which he claims demonstrate that the Tribunal's decision was erroneous.  In this respect there was no difference between the view taken by the Tribunal and that taken by the delegate, but that, for present purposes, is by the way.  The Tribunal considered the various matters relied upon by the applicant and held that the events of which he gave evidence were not of such seriousness as to constitute persecution within the meaning of the Convention.  The Tribunal reached that decision both having regard to the individual incidents and also looking at the incidents cumulatively. 

8. Again, the decision which the Tribunal made was a decision on a question of fact.  It could not be said that there was no evidence entitling the Tribunal to make the decision it did.  Nor can there be any suggestion in my view that the Tribunal applied the wrong legal test or that it did not observe the procedures which it was required to observe.  That being so, it is in my view not within the power of the court to review the Tribunal’s findings.  It follows that the application must be dismissed.

9. The Minister asks for costs.  The applicant informs me that he is unable to pay the Minister’s costs.  That, it is well established, is not of itself a reason for refusing an order for costs and there is no other matter before me which suggests that it is inappropriate that costs follow the event.  Accordingly the order of the court is that the application is dismissed 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 Lehane.

Associate:

Dated:             8 March 1999

Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 March 1999
Date of Judgment:	8 March 1999