DQD16 v Minister for Immigration and Border Protection

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 15 December 2021
• Neutral Citation: [2021] FCA 1586
• Date: 15 December 2021

Federal Court of Australia

DQD16 v Minister for Immigration and Border Protection [2021] FCA 1586

Appeal from:	DQD16 v Minister for Immigration and Border Protection [2021] FCCA 57
File number(s):	VID 38 of 2021
Judgment of:	MORTIMER J
Date of judgment:	15 December 2021
Catchwords:	MIGRATION – AAT review – right to enter and reside in a third country – whether imports requirement of some minimum physical and economic conditions for purposes of s 36(3) of the Migration Act 1958 (Cth) – whether failure to consider DFAT country report – whether non-compliance with ministerial direction made under s 499 of the Migration Act – whether any non-compliance material – appeal allowed
Legislation:	Migration Act 1958 (Cth), ss 36, 499 ; Indo-Nepal Treaty of Peace and Friendship of 1950, art 7
Cases cited:	AJW15 v Minister for Immigration and Border Protection [2016] FCA 197 AYI15 v Minister for Immigration and Border Protection [2016] FCA 1554 BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6; 268 FCR 114 BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291 DQD16 v Minister for Immigration and Border Protection [2021] FCCA 57 Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Minister for Immigration v SZRHU [2013] FCAFC 91; 215 FCR 35 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 NBLC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 272; 149 FCR 151 PQSM v Minister for Home Affairs [2020] FCAFC 125; 279 FCR 175 SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97; 187 FCR 109 SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43; 224 FCR 570 SZTCV v Minister for Immigration and Border Protection [2015] FCA 1309 V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018; 114 FCR 408
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	79
Date of hearing:	2 September 2021
Counsel for the Appellants:	Mr A McBeth
Solicitor for the Appellants:	Oboodi Barristers & Solicitors
Counsel for the Respondents:	Mr C Horan QC with Ms R Amamoo
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

		VID 38 of 2021
BETWEEN:	DQD16 First Appellant ; DQE16 Second Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	MORTIMER J
DATE OF ORDER:	15 December 2021

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Orders 1 and 2 of the orders of the Federal Circuit Court made on 5 March 2020 be set aside and in their place the following orders be made:

1. The application filed on 29 November 2016 and amended on 16 March 2020 be allowed.

2. The second respondent’s decision dated 9 November 2016 be set aside.

3. The matter be remitted to the second respondent, differently constituted, to be determined according to law.

4. The first respondent pay the appellants’ costs of the proceeding in the Federal Circuit Court, to be fixed in accordance with the schedule of costs that applied at the date of the hearing in the Federal Circuit Court or by way of an agreed lump sum.

3. The first respondent pay the appellants’ costs of the appeal, to be fixed by way of an agreed lump sum.

4. By 4.30pm on 7 February 2022, the parties are to file any proposed minute of consent order as to costs.

5. In the event the parties cannot agree on a lump sum for the purposes of Orders 2 and 3, the question of costs in the Federal Circuit Court and on the appeal be referred to a Registrar for determination.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

Introduction

1. On 9 November 2016, and for the second time, the Administrative Appeals Tribunal decided to affirm the decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellants protection visas under s 65 of the Migration Act 1958 (Cth).

2. This is an appeal from the (then) Federal Circuit Court’s dismissal of an application for judicial review of the Tribunal’s decision. The appellants seek orders that the Federal Circuit Court’s orders be set aside and, in their place, new orders be made to quash the Tribunal’s decision and remit the matter to the Tribunal to be re-determined according to law.

3. For the reasons that follow, the appeal will be allowed.

Background The appellants

4. The appellants are husband and wife, from the Indian state of Punjab. Their son, who was born in Australia on 23 February 2020, is not a party to this appeal, but the appellants submit he would be eligible for a protection visa, on the basis of his membership of the appellants’ family unit. That does not appear to be disputed by the Minister.

5. The appellants are both of the Sikh religion, but the husband, DQD16, is of the Jatt caste, while the wife, DQE16, is of a lower caste. Because of the inter-caste nature of their marriage, the appellants claimed to have suffered persecution in their home state. The persecution that DQD16 also claimed to have suffered was said to be intertwined with his political opinion and an ongoing land dispute between his father and his other relatives.

6. The appellants entered Australia on 7 April 2009 as the holders of student visas – DQE16 was enrolled in a course of studies in Australia and DQD16 was her dependant. DQE16’s visa ceased in August 2011 and her application for a further visa was refused early in the following year. On 22 July 2013, DQD16 applied for a protection visa. DQE16 applied for a protection visa on 9 September 2013.

7. The applications were considered and dealt with together. On 12 February 2014, a delegate of the Minister refused the appellants’ applications for protection visas.

8. The delegate reached this decision because he considered that it would be safe and reasonable for the appellants to relocate to a different part of India outside Punjab, if they were removed back to India.

9. The appellants applied for review of the delegate’s decision on 11 March 2014. A review hearing was conducted by the (then) Refugee Review Tribunal (RRT) on 11 November 2014. On 27 August 2015, the RRT affirmed the delegate’s decision to refuse the appellants’ applications for protection visas.

10. The RRT held that, while it had “some reservations about the veracity of [DQD16’s] claim”, it was “prepared to give him the benefit of the doubt” based on the evidence given at its review hearing by a third party...