NAKM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1041

FEDERAL COURT OF AUSTRALIA

NAKM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1041

MIGRATION – application for protection visa – persecution on grounds of race – Indo‑Fijian farmers ‑ appeal from Federal Magistrates Court – where Refugee Review Tribunal found that conduct did not amount to persecution – test for 'well‑founded fear of persecution' – s 91R Migration Act 1958 (Cth) – whether Tribunal applied the correct test – whether subsequent changes in country of residence relevant to whether subjective fear is well‑founded

Migration Act 1958 (Cth) s 91R

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 NAKM AND NAKN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 614 of 2004 BRANSON J 13 AUGUST 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 614 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAKM

FIRST APPELLANT

NAKN

SECOND APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 13 AUGUST 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the costs of the respondent.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 614 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAKM

FIRST APPELLANT

NAKN

SECOND APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE: 13 AUGUST 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION 1 This is an appeal from a judgment of the Federal Magistrates Court. On 8 April 2004 Barnes FM dismissed an application made by the appellants for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal'). The Tribunal had affirmed a decision of a delegate of the respondent refusing to grant the appellants protection visas.