DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: BEACH J
• Judgment Date: 17 September 2019
• Neutral Citation: [2019] FCA 1525
• Date: 17 September 2019

FEDERAL COURT OF AUSTRALIA

DTN16 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 1525

Appeal from:	DTN16 & Ors v Minister for Home Affairs & Anor [2019] FCCA 404
File number:	VID 272 of 2019
Judge:	BEACH J
Date of judgment:	17 September 2019
Catchwords:	MIGRATION – incorrect factual finding – extent of contamination of underlying reasoning and determination – irrationality – unreasonableness – failure to consider integer – jurisdictional error established – appeal allowed
Legislation:	Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa)
Cases cited:	AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227 SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562
Date of hearing:	12 September 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	73
Counsel for the Appellants:	Mr CM McDermott
Solicitor for the Appellants:	King & Wood Mallesons
Counsel for the First Respondent:	Mr NM Wood
Solicitor for the First Respondent:	Mills Oakley
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		VID 272 of 2019
BETWEEN:	DTN16 First Appellant ; DTO16 Second Appellant ; DTP16 (and another named in the Schedule) Third Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	BEACH J
DATE OF ORDER:	17 SEPTEMBER 2019

THE COURT ORDERS THAT:

1. The appellants have leave to amend their grounds of appeal in the form of the draft notice of appeal filed on 12 September 2019.

2. The appeal be allowed.

3. Order 2 of the orders made by the Federal Circuit Court be set aside and in lieu thereof it be ordered that the decision of the second respondent made on 15 November 2016 be quashed and the matter be remitted to the second respondent for hearing and determination according to law.

4. Order 3 of such orders be set aside and in lieu thereof it is ordered that the first respondent pay the appellants’ costs of the proceedings in the Federal Circuit Court.

5. The first respondent pay the appellants’ costs of and incidental to the appeal in this Court to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

BEACH J:

1. The appellants are citizens of Pakistan. The first appellant, being a female of Shia Muslim faith, was the primary visa applicant for a protection visa; the second to fourth appellants, being her husband and children respectively, applied for protection visas as part of the first appellant’s family unit. Although the first appellant is a Shia Muslim, both her family of origin and her in-laws, including her husband, are Sunni Muslims. I state this at the outset so that it may be appreciated that the first appellant’s specific claims to protection were to be viewed through the more general compounded lens of being a Pakistani woman, being a Shia Muslim in a country that is overwhelmingly of Sunni Muslim faith, and being a member of both her family of origin and her in-laws who are all of Sunni Muslim faith.

2. The appellants appeal from the judgment of the Federal Circuit Court delivered on 28 February 2019 dismissing the appellants’ application for judicial review of a decision of the second respondent (the Tribunal) made on 15 November 2016. The Tribunal had affirmed a decision of a delegate of the Minister not to grant the appellants protection visas.

3. The appellants were self-represented at the time of the filing of their appeal in this Court on 21 March 2019. But on 26 April 2019, a judge of this Court referred the appellants for legal assistance under r 4.12 of the Federal Court Rules 2011 (Cth). I am grateful for the pro bono assistance provided by Mr Christopher McDermott, counsel for the appellants, and his instructors, King & Wood Mallesons.

4. The appellants contend that the Tribunal’s decision was affected by jurisdictional error, and that the primary judge was wrong to conclude to the contrary.

5. For the reasons that follow, I have upheld the appellants’ appeal on one of the grounds argued before me.

Background and Tribunal proceedings

6. The first appellant arrived in Australia in June 2012. Her husband, the second appellant, had arrived in Australia in October 2008 although he had visited Pakistan from 14 February 2010 to 3 April 2010 and 7 August 2011 to 23 October 2011. The first and second appellants were married in Lahore on 21 September 2011. The third and fourth appellants are their children who were born in Australia when the first and second appellants were on temporary student visas.

7. On 17 April 2014, the appellants applied for protection visas. The first appellant’s claims to engage Australia’s protection obligations were outlined in the visa application but were the subject of a more detailed statement made in writing before the Minister’s delegate on 3 September 2015 (the first statement).

8. On 8 October 2015, the Minister’s delegate refused to grant the appellants protection visas.

9. On 29 October 2015 the appellants sought review of the delegate’s decision before the Tribunal. Prior to appearing before the Tribunal, the first appellant submitted a statutory declaration that she had made on 26 October 2016 (the second statement). The first appellant also put forward country information about “honour killings” and the written opinion of a clinical psychologist as to her mental health.

10. On 8 November 2016, the appellants appeared at a hearing before the Tribunal, without an authorised representative but with the assistance of an Urdu interpreter.

11. On 15 November 2016, the Tribunal affirmed the delegate’s decision.

12. In essence, the first appellant claimed to fear harm from two of her four brothers who had over the course of several years become associated with extremist political and religious elements within Pakistan. She outlined how her two brothers had adversely impacted the course of her schooling, for example, by stopping her from attending school for three years, as well as her university education. Her family home was in Lahore. Her family of origin were all of Sunni Muslim faith, with the two brothers I have just mentioned being extremists in this respect. She claimed that these two brothers had acted violently towards her, which included occasions where they locked her up within her parents’ home; on occasions, the brothers apparently pointed a gun at her. Whilst her parents had been supportive of the first appellant attaining an education and assisted her from exiting and entering their home without her brothers’ knowledge, her parents were not able to control the brothers in their adverse treatment of their sister. She claimed that on one occasion the brothers, using the resources of the extremist groups they were affiliated with, sent men to threaten her whilst she was in Karachi. She also claimed that upon her brothers discovering that she had married for love (and not a friend of theirs affiliated with extremism), her brothers beat her. This effectively led to her not being able to return to her family home. She surmised that her brothers, informed by their extremism, were adversely motivated towards her because of her gender.

13. The first appellant also claimed to have been drawn to the Shia Muslim faith whilst attaining her college...