Minister for Immigration & Multicultural Affairs v Gui [1999] FCA 1496

FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Gui [1999] FCA 1496 MIGRATION – appeal from decision of primary Judge allowing respondent's appeal from decision of the Refugee Review Tribunal refusing protection visa – membership of a social group – homosexuals – respondent's arrest for homosexual activity in public place in 1993 – respondent departing China in 1996 – evidence of respondent being able to take part in active gay community – evidence of homosexuality, if discreet, being tolerated – whether RRT erred in failing to find objective fear of persecution without "negating or qualifying" earlier findings

1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol, Article 1A(2) Migration Act 1958 (Cth) ss 430, 476(1)(e) Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 distinguished Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied

Morato v Minister for Immigration (1929) 39 FCR 402 cited

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 cited

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v

GUO PING GUI N 52 OF 1999 HEEREY, CARR AND TAMBERLIN JJ SYDNEY 29 OCTOBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 52 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: MINISTER FOR IMMIGRATION

AND MULTICULTURAL AFFAIRS

Appellant

AND: GUO PING GUI

Respondent

JUDGE: HEEREY, CARR & TAMBERLIN J

DATE OF ORDER: 29 OCTOBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The respondent is to pay the appellant's costs of the appeal. 3. The respondent is to also pay the appellant's costs of the hearing before the primary Judge. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.