SZEAS v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEAS v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 166

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZEAS”.

Migration Act 1958 (Cth), ss.91R, 91X, 424A

Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
SZEAS v Minister for Immigration & Anor [2005] FMCA 1776

Applicant: SZEAS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3650 of 2006

Judgment of: Lloyd-Jones FM

Hearing date: 30 November 2007

Delivered at: Sydney

Delivered on: 21 February 2008

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person with the assistance of a Nepali interpreter

Counsel for the Respondents: Mr G Kennett

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.

2. The application filed on 7 December 2006 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3650 of 2006

SZEAS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. The applicant is a citizen of Nepal and was born in 1967.  He claims that he was a field worker in human resource development and capacity building with the United Nations Development Project (UNDP) from 1987 to 1993.  The applicant claims that from 1993 to 1996, he worked on similar community development projects and programs concentrating on mid and western Nepal.  He claims that during this period, Maoists accused him of attracting aid away from them and so threatened him. As a result, he was transferred to the regional headquarters in Nepalganj but this was closed in 1996.

2. The applicant claims that he suffered “serious mental stress” as a result of being threatened and assaulted.  He arrived in Australia on 13 November 2003, claiming to participate in a conference organised by “Plan Australia”. 

3. The applicant applied for a Protection (Class XA) visa on 27 November 2003.  A delegate of the first respondent refused to grant the visa on 17 February 2004 and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) to review the delegate’s decision.  The first Tribunal affirmed the delegate’s decision, so the applicant applied to the Federal Magistrates Court for judicial review of the first Tribunal’s decision: SZEAS v Minister for Immigration & Anor [2005] FMCA 1776 (18 November 2005). A writ of certiorari issued directed to the Tribunal, quashing the decision of the Tribunal handed down on 24 June 2004 in matter N04/48531. A writ of mandamus issued to the Tribunal, requiring it to determine according to law the application for review of the decision of the delegate of…