NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 19

FEDERAL COURT OF AUSTRALIA

NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 19 MIGRATION – appeal – where conceded error of construction by primary judge because of subsequent decision of High Court – whether Full Court should hear all issues arising in materially different case advanced by appellant based on decision of High Court – whether primary judge's orders should be set aside and the proceedings remitted. Migration Act 1958 (Cth), s 474 Federal Court of Australia Act 1976 (Cth), s 28(1)(c) NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, (2002) 193 ALR 449 referred to S157/2002 v Commonwealth of Australia [2003] HCA 2 referred to Allesch v Mauntz (2000) 203 CLR 172 referred to NADH OF 2001, NADI of 2001 and NADJ of 2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 900 of 2002 MOORE, TAMBERLIN & HELY JJ SYDNEY 19 FEBRUARY 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N900 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NADH of 2001

FIRST APPELLANT

NADI of 2001

SECOND APPELLANT

NADJ of 2001

THIRD APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: MOORE, TAMBERLIN & HELY JJ

DATE OF ORDER: 19 FEBRUARY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The orders of the Primary Judge made on 9 August 2002 be set aside. 2. The proceeding be remitted to the Primary Judge for further hearing and determination. 3. The costs of this appeal be the appellants' costs in the cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.