Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
SZANL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1091
MIGRATION – no point of principle
Migration Act 1958 (Cth) SZANL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 828 OF 2004 MOORE J 31 AUGUST 2004 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 828 OF 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZANL
APPELLANT
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE: MOORE J
DATE OF ORDER: 31 AUGUST 2004
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The appeal be dismissed. 1. The appellant 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 828 OF 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZANL
APPELLANT
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE: MOORE J
DATE: 31 AUGUST 2004
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 This is an appeal against a decision of a Federal Magistrate of 11 May 2004 dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal"). On 28 March 2003, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") of 2 July 2002 refusing an application for a protection visa lodged on 12 March 2002.
Background 2 The following is a summary of the claims of the appellant before and in the course of the Tribunal hearing. The appellant is a citizen of Nepal and lived at the same address since his birth in 1961. In March 1999 he made contact with members of the Communist Party of Nepal (Unified Marxist-Leninist) ("CPN(UML)") which he joined in June 2000. Since joining the CPN(UML) and until January 2002 he worked as a campaign activist with the CPN(UML) in Parbat and his role was to attend informal meetings and spread awareness about the party. He visited many villages and distributed books, pamphlets and information. 3 He had been questioned about his activities and why he joined the CPN(UML) by members of opposition parties, the Nepali Congress ("NC") and the National Democratic Party ("RPP") (together "the opposition parties"). He ignored what they had said to him and refused to join them. As a result, the opposition parties treated him as a Maoist. On one occasion, after joining the CPN(UML) and while distributing pamphlets, people unknown to him and who were connected with the opposition parties took his pamphlets from him and replaced them with Maoist pamphlets. The members of the opposition parties set him up so that the police suspected him of being a Maoist. People, including children began to call him a Maoist. 4 On 21 October 2001, five police went to his home and told his wife and mother they wanted to arrest him because he was a Maoist. On 21 October 2001, an "Order for Arrest" dated 16 October 2001 was left at the house. He escaped by the back door and fled to Kathmandu disguised as a woman. He stayed in Kathmandu with a relative. He never saw his family again. He is not able to avail himself of the protection of his country because of his fear and is unable to relocate within Nepal because of the importance of his family in Nepal as well as the on-going violations of his rights and the unstable political situation in Nepal. 5 After the declaration of the state of emergency in November 2001, the appellant claimed that the government views Maoists as terrorists, and people are being imprisoned and tortured on suspicion of being a Maoist. He claims that if he were to return to Nepal he would be persecuted by government authorities who suspect him of being Maoist. He has never had any direct contact with Maoists and is not a Maoist. Under a legal agreement between the Nepalese and Indian governments, he could not reside in India because the NC has links there. The appellant's cousin paid contacts at the airport to allow the appellant to leave the country. He arrived in Australia on 14 February 2002.
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