Sein v Minister for Immigration & Multicultural Affairs [2001] FCA 1579

FEDERAL COURT OF AUSTRALIA

Sein v Minister for Immigration & Multicultural Affairs [2001] FCA 1579

MIGRATION – protection visa – review of decision of tribunal refusing visa – application based on combination of ethnicity, membership of prominent dissident family, activities of family members in fight for independence, applicant's participation in earlier student movement and applicant's sur place political activities – tribunal considered each element separately – did not make finding on activities of family members – did not consider elements in combination – whether error of law – whether tribunal did not have jurisdiction to make the decision – whether the decision was not authorised – application of "real chance" test

Migration Act 1958 (Cth) ss 5(1), 36, 476(1)(b), 476(1)(c), 476(1)(e), 481(1)(a), 481(1)(b)

Kaur v Minister for Immigration & Multicultural Affairs [2000] FCA 1401 followed Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1 applied Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 applied Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 applied NANG KHAM MYA SEIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 830 of 2000 GRAY J 9 NOVEMBER 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 830 of 2000

BETWEEN: NANG KHAM MYA SEIN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: GRAY J

DATE OF ORDER: 9 NOVEMBER 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal, made on 18 September 2000, affirming the decision of a delegate of the respondent to refuse to grant the applicant a protection visa, be set aside. 2. The matter to which the decision relates be referred to the Refugee Review Tribunal for further consideration according to law. 3. For the purposes of such further consideration, the Refugee Review Tribunal be constituted differently. 4. The respondent pay the applicant's costs of the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.