SZALD v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1147

FEDERAL COURT OF AUSTRALIA

SZALD v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1147

MIGRATION – no point of principle

Migration Act 1958 (Cth)

SZALD AND SZALE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 706 OF 2004

MOORE J
1 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 706 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZALD
FIRST APPELLANT

SZALE
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

1 SEPTEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellants 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 706 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZALD
FIRST APPELLANT

SZALE
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	MOORE J
DATE:	1 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of a Federal Magistrate of 23 April 2004.  His Honour dismissed an application by the appellants for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 6 August 2002.  The Tribunal affirmed the decisions of a delegate for the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant the appellants protection visas.  In his reasons, the Federal Magistrate noted the background and the claims made by the appellants before the Tribunal.

2. The appellants are Nepalese nationals.  They are a married couple.  The husband arrived in Australia before the wife.  The gist of the claims made by the husband was that he had been a member of the Maoist Party in Nepal and had a well-founded fear of persecution in Nepal because of his political opinions.  In a statement in support of his application he recounted how, in January 1999, he decided to join the Maoist Party.  In that statement he said he worked as an activist and campaigner with the Maoist Party and that normally his role had been to spread Maoist ideology at informal communal gatherings.  The wife also claimed to have joined the Maoist Party. 

3. The Tribunal accepted that in Nepal, Maoists and members of the Maoist Party might be at risk of harm.  However, the Tribunal did not accept the appellants' claims that they had been members of, and active in, that party. 

4. The grounds for the application were set out in the Federal Magistrate's reasons for judgment and they expressed disagreement with the Tribunal's decision.  The Federal Magistrate noted that what the appellants were seeking to do was to invite a reconsideration of the Tribunal's reasons.  His Honour noted that it was a matter for the Tribunal to determine whether the claims made by the appellants should be accepted or not. 

5. In this appeal both the grounds of appeal and the submissions made by the appellant husband again involved an invitation to review the findings of fact made by the Tribunal.  It is not apparent to me that the Federal Magistrate erred in any respect in his consideration of the appellants' application for review of the Tribunal's decision and in forming the view that there was no judicially reviewable error.  Accordingly, the appeal should be dismissed with costs and I so order.

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

Associate:

Dated:             3 September 2004

The First Appellant appeared in person and on behalf of the Second Appellant.

Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australia Government Solicitor
Date of Hearing:	1 September 2004
Date of Judgment:	1 September 2004