NAHF v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAHF v MINISTER FOR IMMIGRATION [2003] FMCA 303

MIGRATION – Review of RRT decision – application for protection visa – whether the applicant has a well-founded fear of persecution for a Convention reason – whether the applicant has effective protection in home country – where there was an issue regarding the arrival of persons into India from Nepal by air when travelling between the two countries – whether the applicant “as a matter of practical reality” can gain protection in India.

Migration Act 1958 (Cth), s.36(3), (4), (5)

NAGV v Minister for Immigration [2003] FCAFC 144
NAFB v Minister for Immigration [2003] FCA 484
Minister for Immigration & Multicultural & Indigenous Affairs v Thiyagarajah (1997) 80 FCR 543

Applicant: NAHF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 293 of 2003

Delivered on: 17 July 2003

Delivered at: Sydney

Hearing date: 17 July 2003

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Mr J Young

Solicitors for the Applicant: Simon Diab & Associates

Counsel for the Respondent: Mr S Lloyd

Solicitors for the Respondent: Sparke Helmore Solicitors

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 293 of 2003

NAHF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The principal applicant in this matter is a Nepalese businessman who together with his wife and child arrived in Australia on 12 September 2001.  On 12 October 2001 the family lodged an application for protection (Class XA) visas with the Department of Immigration & Multicultural & Indigenous Affairs.  On 18 April 2002 a delegate of the Minister refused to grant these visas and on 8 May 2002 the applicants applied for a review of that decision by the Refugee Review Tribunal.  The Tribunal considered their cases and made a decision on 12 November 2002, handed down on 10 December 2002.  It is in respect of that decision that the applicants now seek review.

2. Because the applicant's family seek to be joined in his application and have not submitted any factors of their own pursuant to which they could be considered as refugees independently of the male member of the family I shall refer in these reasons to "the applicant" as encompassing all three.

3. The applicant's well founded fear of persecution for Convention reasons was said by him to have arisen out of harassment by Maoists who, it is notorious, have established a foothold in much of Nepal in opposition to the legitimate government of the country.  The applicant also states that he became a target of the Nepal Congress Party because of his membership of another party in Nepal known as the RPP. 

4. It is not necessary for me to go into any detail about the applicant's claims in respect of the harassment by Maoists because at [CB 106] the Tribunal says:

   “ The applicants claim that in Nepal they were targeted…