SZANK v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZANK v MINISTER FOR IMMIGRATION [2004] FMCA 363

MIGRATION – Review of RRT decision – where applicant claims to have a well-founded fear of persecution for convention ground of political opinion – whether it was open to the Tribunal to make a decision using generalised information or whether it was required to make specific direct enquires – whether Tribunal decision evidences bias.

Federal Magistrates Court Rules Part 21, Rule 21.02(2)(a)

NARE v Minister for Immigration [2003] FCA 554
Dranichnikov v Minister for Immigration [2003] 197 ALR
SBBA v Minister for Immigration [2003] FCAFC 90
Applicant S70 of 2003 v Minister for Immigration [2004] FCA 84
SCAA v Minister for Immigration [2002] FCA 668

Applicant: SZANK

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 750 of 2003

Delivered on: 2 June 2004

Delivered at: Sydney

Hearing date: 2 June 2004

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Applicant in Person

Counsel for the Respondent: Ms S Kaur-Bains

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. Application dismissed.

2. Applicant to pay respondent’s costs in the sum of $4,500

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 750 of 2003

SZANK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter is a citizen of Nepal, who arrived in Australia on 14 March 2002.  On 23 April 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 24 June 2002 a delegate of the Minister refused to grant a protection visa, and on 15 July 2002 the applicant applied for review of that decision.  The Tribunal arranged for a hearing to take place on 28 November 2002, and made its decision on 28 March 2003.  The decision was handed down on 16 April 2003.

2. The applicant’s claim to have a well-founded fear of persecution for the convention reason of political opinion is based upon his membership of the Communist Party of Nepal (Unified Marxist-Leninist) group which he claims to have joined in January 2000.  He told the delegate and the Tribunal that he had worked as a campaigner and activist with the party.  His role was to attend informal meetings and spread awareness about the party.

3. The applicant claimed that he feared harm from the police and the army, that a friend who had introduced him to the CPN (UML) was killed by the authorities a short time before the hearing, and that any person who is a member of the Communist Party of Nepal is linked with the Maoists against whom harsh action is being taken by the Government.  The applicant claimed that he had been detained for three days in March 2000 whilst he was putting up posters and again for one day in May 2000 following a party meeting.

4. The Tribunal's conclusions about the claims made by the applicant are contained between [CB 76] and [77]. Essentially, the…