Maharaj v Minister for Immigration & Multicultural Affairs [2001] FCA 1559 (10 October 2001)

Last Updated: 6 November 2001

FEDERAL COURT OF AUSTRALIA

Maharaj v Minister for Immigration & Multicultural Affairs [2001] FCA 1559

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

N 1138 OF 2001

EMMETT J

10 OCTOBER 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:	10 OCTOBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Leave be granted to Henshaws Solicitors to cease acting for the applicants.

2. The application be dismissed.

3. The applicants pay the respondent's costs.

THE COURT ORDERS DIRECTS THAT:

4. The respondent inform the applicants as soon as practicable of the terms of these orders

5. The respondent inform the applicants of the provisions of Order 32 Rule 2(2) and Order 35 Rule 7(2)(a).

6. Notification be given to the applicants at the address shown in the correspondence from their solicitors and at any other address known to the Minister.

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:	10 OCTOBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 When this matter first came before me on 7 September 2001 the applicants were represented by Mr Cairns of counsel. On that occasion I gave the applicants leave to file an amended application and gave directions for the filing of affidavits and submissions. I set the matter down for hearing today at 10.15 am. When the matter was called today there was no appearance for the applicants. However, Mr Canceri appeared to seek leave on behalf of the solicitors who had filed the application, to withdraw from the proceedings.

2 Order 45 Rule 7, relevantly provides:

"(1) Where a solicitor acts for a party to any proceeding and afterwards ceases to act, the solicitor may, subject to subrule (2), file notice of the change and serve the notice on the parties.

(2) A solicitor shall not file or serve notice of a change under subrule (1) without leave of the Court unless he has, not less than 7 days before doing so, served on his former client notice of his intention to file and serve the notice of change."

No such notice of change has been filed or served.

3 However, on 21 September 2001, following a telephone conversation between the solicitors and the first applicant, the solicitors sent to the applicants a copy of an earlier letter of 11 September 2001 that had been sent to a different address and copies of a proposed costs agreement. The letter of 11 September 2001 notified the orders that I had made on the earlier occasion and in particular the date of the hearing.

4 The letter of 21 September 2001 requested payment of the sum of $7,000 by 10.00 am on 28 September 2001 with the threat that if it was not paid the solicitors would not act further on behalf of the applicants. The letter referred to a sum of $3,000 that had already been received apparently on account of costs. On 27 September 2001 the solicitors wrote again to the first applicant confirming receipt of the sum of $1,500. The letter said that sufficient funds had not been received and that the solicitors were not willing to proceed further until payment was made. The letter indicated that the solicitors were unable to undertake preparation for the hearing until payment was made. I have been informed by Mr Canceri that on 4 October 2001 there was a further telephone communication between the solicitors and the applicants, although there was no indication that any reference was made to the date of the hearing in the course of that communication.

5 The matter is somewhat unsatisfactory. The original application leaves a lot to be desired. The drafter appears to have been at least careless, if not completely unfamiliar with the matter. There has been no appearance by the firm in question to defend the document. For example, the application refers to a report by the Department of Foreign Affairs and Trade that Tamils from Fiji had a high risk of persecution. There is nothing in any of the papers to suggest that the applicants are Tamils. The inference that I would draw is that the application was prepared by simply copying material from some other document without any care or consideration.

6 Nevertheless, in the circumstances, there does not appear to be any point in requiring the solicitors to continue to act. Whether the matter proceeds in the absence of the applicants is a matter that will have to be dealt with after I have heard the Minister. Therefore, I propose to grant leave to the solicitors to cease acting for the applicants.

7 The applicants, husband and wife together with their daughter, are citizens of Fiji. They arrived in Australia on 25 June 2000. On 28 July 2000 they lodged an application for protection (class XA) visas with the Department of Immigration and Multicultural Affairs. On 5 September, 2000 a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, refused to grant the visas. On 20 September 2000 the applicants applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. On 31 May 2001 the Tribunal affirmed the decision not to grant protection visas. On 27 July 2001 the applicants applied to the Court for an application for an order of review of the Tribunal.

8 The matter first came before me on 7 September 2001, when I fixed the matter for hearing today. In the course of the application for leave to cease acting, the applicants' solicitors tendered correspondence with the applicants indicating that they had been notified of today's fixture for hearing. The correspondence also indicates that the solicitors would not act if fees were not paid in advance. When the matter was called on for hearing today, there was no appearance for the applicants. The Minister therefore asked that the matter be dealt with on the merits or, alternatively, that it be dismissed pursuant to Order 32 Rule 2(1)(c). That rule relevantly provides that when a proceeding is called on for trial, if the party absent is an applicant, the Court may dismiss the application. However, under Order 32, Rule 2(1)(d), the Court may proceed with the trial generally. Having regard to the nature of the questions raised, it appears to me to be preferable to proceed with the trial generally.

9 The application for an order of review specifies four grounds:

(i) That the Tribunal erred in law in applying the test as to whether the applicant had a well-founded fear of persecution if returned to Fiji, in that the Tribunal was required, but failed to consider whether the applicant, in the foreseeable future, would be at risk of persecution in his home village and, if so, whether he could reasonably relocate elsewhere in Fiji.

(ii) The Tribunal failed to take into account relevant matters and properly balance that evidence against the material considered. As particulars of that ground it was said that notwithstanding that the Tribunal disbelieved the applicant in relation to the past persecution that he has alleged he had suffered at the hands of the Indigenes (sic) Fijian authorities. The Tribunal was still required to determine the applicants (sic) claim based on the facts accepted by the Tribunal, namely that the applicant was an Indo-Fijian and was accordingly from Fiji. The Tribunal referred to and reportedly accepted information contained in a report by the Department of Foreign Affairs and Trade that Tamils from Fiji had a high risk of persecution. Further, the Tribunal failed to consider the risk of persecution of the applicant by the Fijian authorities or any protection in his home village. Also, the Tribunal did not consider whether it was reasonable for the applicant to locate to Fiji, but only whether the applicant had a well-founded fear of persecution in Fiji.

(iii) That the Tribunal improperly exercised its (sic) by failing to address the question as to whether the applicant in the foreseeable future would be at risk of persecution in his home village if he returned to Fiji and if so, whether he could reasonably relocate elsewhere in Fiji.

(iv) That the Tribunal acted ultra vires in finding that there was no evidence to make certain findings and made other finding (sic) in the absence of evidence thereby invalidating the decision.

10 No submissions have been filed despite directions that I gave requiring written submissions be filed by the applicants five working days prior to the hearing. It is desirable, therefore, to say something about the reasons of the Tribunal for its conclusion that the delegate's decision be affirmed.

11 The Tribunal found that the applicants travelled to Australia on valid Fijian passports and claimed to be nationals of Fiji. . The Tribunal accepted that they are Indo-Fijians. The Tribunal therefore assessed their claims against Fiji as their country of nationality. The Tribunal accepted that violent incidents directed towards Indo Fijians took place in Fiji at the time of the coup in May 2000. The Tribunal also accepted that the applicant husband and his family were attacked and threatened during that coup and that in a separate incident their house was broken into and their property stolen and damaged. It accepted that the applicant husband was again attacked by indigenous Fijians and that the police did not respond to his requests for assistance. The Tribunal observed, however, that it was then over a year since the coup and that the security situation in Fiji had significantly improved.

12 The Tribunal referred to a Department of Foreign Affairs and Trade report of 12 December 2000:

"... it had been over 6 months since the height of the crisis. Effective control over law, order and security had been re-established by the police and military."

The Tribunal also referred to a report from the Department of Foreign Affairs and Trade in April 2001:

"Civilian administration has been in place for several months, with the military returning to a role of assisting the police in safeguarding public security. By 15 December 2000, military checkpoints and overnight curfews were lifted and the maintenance of law and order was handed back to police by the military. Both security forces had worked well at restoring confidence in public safety."

The Tribunal also referred to an ABC Radio Australia News bulletin of 19 May 2001, which announced on the anniversary of the coup: "there is no sign of tension in Suva ... and only normal levels of policing." The Tribunal found that the situation in Fiji had changed substantially since the applicants left in June 2000. The current ethnic Fijian led government had publicly articulated its commitment to upholding the rights of all its citizens and the military and the police had re-established effective control over law and order.

13 The Tribunal found that, in the current political and security climate, Indo Fijians are not generally at risk of mistreatment and only isolated cases of minor harassment had been recently reported. The Tribunal found that the applicants' claim, that their house was stoned in April 2001, could be considered to be harassment but was not of sufficient severity to constitute persecution. The Tribunal therefore found that there was not a real chance that, if the applicants were to return to Fiji now or in the reasonably foreseeable future, they would be persecuted for reason of their race or that the state would fail to protect them.

14 The Tribunal also referred to a claim by the applicant husband that he had to leave his job and that he has therefore lost his livelihood. The Tribunal did not accept that claim but found that the applicant husband did not have to leave his employment by his family's company, but chose to do so. The Tribunal found that the applicant husband's parents and brother remained in Fiji and continued to run the family business. There appeared to the Tribunal to be no reason why the applicant husband could not resume working for the family company if he wished to do so, if he were to return to Fiji. The Tribunal found that if he did not wish to work in the family company, there were other employment opportunities available to him. The Tribunal concluded, therefore, that there was not a real chance that the applicants would be persecuted for reasons of their race of for any other convention reason if they were to return to Fiji now or in the reasonably foreseeable future.

15 The first ground in the application alleges an error of law in applying the test as to whether the applicants had a well founded fear of persecution. The Tribunal sets out the test for determining persecution at pages 2-4 of its decision. I have no doubt that this is the correct test to be applied. The Tribunal applied the test to the facts it found - see paragraphs [11] - [14] above. As a result, it found the applicants would not be at risk of persecution upon return to Fiji now or in the reasonably foreseeable future. That was an express finding. In following that process, the Tribunal correctly applied the test of persecution to the facts as found by it.

16 The second ground alleges failure to take into account relevant matters and properly balance evidence against material considered. Reference was made to a report relating to Tamils from Fiji. There does not appear to have been any such report before the Tribunal. This ground seems to have no substance whatsoever.

17 The third and fourth grounds do not make sense. I assume that the third ground was intended to refer to the improper exercise of jurisdiction or power by failing to address the question of whether the applicants would be at risk of persecution. As I have said the Tribunal expressly addressed that question and made findings that were capable of being supported by the evidence before it. I can not fathom what is meant by the fourth ground. There was no finding by the Tribunal that there was no evidence to make certain findings. There appears to be no substance to the matter.

18 I consider that none of the grounds referred to in the application demonstrates a ground of review. There does not appear to be any other ground from my consideration of the Tribunal's reasons. Accordingly, in my view, the application should be dismissed.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 5 November 2001

Counsel for the Applicant:	Mr A Canceri
Solicitor for the Applicant:	Henshaws Solicitors
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	10 October 2001
Date of Judgment:	10 October 2001