NBKB v Minister for Immigration and Citizenship [2009] FCA 69

FEDERAL COURT OF AUSTRALIA

NBKB v Minister for Immigration and Citizenship [2009] FCA 69 MIGRATION – protection visa – earlier decision of Tribunal set aside – Tribunal constituted by different member on second review – failure by Tribunal to adequately identify to the appellant 'the issues arising in relation to the decision under review' as required by s 425(1) of the Migration Act 1958 (Cth) – effect of s 91R(3) of the Migration Act – Tribunal required to disregard the appellant's conduct in Australia – Tribunal considered appellant's conduct in course of finding she did not have a well-founded fear of persecution – the Tribunal breached s 91R(3) – jurisdictional error established

Migration Act 1958 (Cth) ss 91R(3), 414, 415, 424A, 424A(1), 424A(3)(b), 425, 425(1), 425(2), 441A Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NBKB v Minister for Immigration and Citizenship [2008] FMCA 1046 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105 SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291 NBKB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1303 of 2008

MCKERRACHER J

11 FEBRUARY 2009

PERTH (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1303 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NBKB

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MCKERRACHER J

DATE OF ORDER: 11 FEBRUARY 2009