SZNKZ v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNKZ v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 737

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – operation of s.36(3) of the Migration Act 1958 – legally enforceable right of entry to another country – right need not be mirrored by a correlative duty on a state – how a right of entry and residence in another country may be demonstrated.

Migration Act 1958, ss.36, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZLAN v Minister for Immigration & Citizenship [2008] FCA 904
Minister for Immigration & Multicultural Affairs v Applicant C (2001) 116 FCR 154
SZGXK v Minister for Immigration & Citizenship [2008] FCA 1891
SZGXK v Minister for Immigration & Citizenship [2008] FMCA 822

Applicant: SZNKZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 839 of 2009

Judgment of: Cameron FM

Hearing date: 21 July 2009

Date of Last Submission: 21 July 2009

Delivered at: Sydney

Delivered on: 7 August 2009

REPRESENTATION

Counsel for the Applicant: Mr J.R Young

Solicitors for the Applicant: Simon Diab

Counsel for the First Respondent: Mr H. Bevan

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 839 of 2009

SZNKZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Nepal where, he claims, his family was targeted by Maoists.  He claims that in 2001 there was a clash in his village between Maoists and the Nepalese army.  He alleges that the Maoists subsequently accused him of not having warned them of the army’s approach and that he was thereafter forced to provide “donations” as compensation. 

2. The applicant claims to fear persecution in Nepal from the Maoists and also from other political parties.

3. After his arrival in Australia on 20 August 2008, the applicant lodged an application for a protection visa.  This was refused by the Minister’s delegate on 12 December 2008.  The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision.  The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

4. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

5. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 10 of the Tribunal’s decision (Court Book (“CB”) pages 222 – 228).  Relevant factual allegations are summarised below:

   a)in 2001 Maoists from the Nepal Communist Party held a “session” in the applicant’s village at…