NAEB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 79

FEDERAL COURT OF AUSTRALIA

NAEB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 79 MIGRATION – appeal from primary judge dismissing application for judicial review of Refugee Review Tribunal decision – whether the Refugee Review Tribunal asked the wrong question when considering whether the consequences of a return to the People's Republic of China would constitute persecution of the appellant – whether proper question was why the appellant would modify his practice of Falun Gong - whether question would reveal the appellant had a well founded fear of persecution PROCEDURE – new ground of appeal raised – whether appropriate for Court to entertain ground where based on an authoritative determination of the High Court delivered between decision of primary judge and hearing of appeal. Appellant S395/2002 v The Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112; (2003) 78 ALJR 180; [2003] HCA 71 distinguished Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 H v Minister for Immigration and Multicultural Affairs (2000) 63 ALD 43; [2000] FCA 1348 cited Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 VACC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 cited NAEB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 909 OF 2003 NORTH, DOWSETT AND LANDER JJ MELBOURNE (HEARD IN SYDNEY) 30 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 909 OF 2003

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN: NAEB

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS