Applicant NAKB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 534

FEDERAL COURT OF AUSTRALIA

Applicant NAKB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 534 MIGRATION – appeal from Federal Magistrate – Refugee Review Tribunal ("RRT") made alternative findings – claim by appellant of persecution if returned to Sri Lanka – whether RRT considered claim by appellant – jurisdictional error – whether appeal should be allowed Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 cited SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161 cited Htun v Minister for Immigration and Multicultural Affairs (2003) 194 ALR 244 cited Saad v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65 cited Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 referred to APPLICANT NAKB OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1368 OF 2002 TAMBERLIN J SYDNEY 30 MAY 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1368 OF 2002

BETWEEN: APPLICANT NAKB OF 2002

FIRST APPELLANT

APPLICANT NAKC OF 2002

SECOND APPELLANT

APPLICANT NAKD OF 2002

THIRD APPELLANT

APPLICANT NAKE OF 2002

FOURTH APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 30 MAY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The decisions of the Federal Magistrate and the Refugee Review Tribunal be set aside and the matter remitted to the Refugee Review Tribunal to be determined in accordance with law. 3. The respondent pay the appellants' costs of the appeal and the hearing below.