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Administrative law – migration law…

… refusal of protection visa – whether right to enter and reside in a third country imports requirement of some minimum physical and economic conditions – whether failure to consider DFAT country report

In DQD16 v Minister for Immigration and Border Protection [2021] FCA 1586 (15 December 2021) the court allowed an appeal from a decision of the Federal Circuit Court, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (AAT).

It was affirming a decision to refuse the appellants protection visas under s65 of the Migration Act 1958 (Cth) (Act).

The appellants are husband and wife, from the Indian state of Punjab. The appellants are both of the Sikh religion, but the husband is of a ‘higher caste’ compared to the wife. Because of the inter-caste nature of their marriage, the appellants claimed to have suffered persecution in their home state, as well for other reasons including the husband’s political opinion.

The AAT had decided that under s36(3) of the Act, Australia was taken not to have protection obligations in respect to the appellants, because they had not taken all possible steps to avail themselves of their right to enter and reside in Nepal. That was on the basis that the appellants had this right because article 7 of the Indo-Nepal Treaty of Peace and Friendship of 1950 provides that Indian nationals, such as the appellants, can enter and reside in Nepal.

The appellants’ first ground raised whether the right to enter and reside in a third country (namely, Nepal) imported requirement of some minimum physical and economic conditions for purposes of s36(3) of the Act.

Mortimer J held that the concept of residence implies, at least, some form of reasonable access to the necessities of life, enough to sustain oneself so as to be described as “residing” (at [53]). However, this ground still failed as the AAT made findings on the issues that were open to it (at [54]).

The applicants succeeded on their second ground that the AAT contravened s499 of the Act by failing to apply Ministerial Direction No 56 and take into account in its decision the ‘DFAT Country Information Report – Nepal’, dated 21 April 2016 (at [66]-[79]).

Dan Star QC is a Senior Counsel at the Victorian Bar, ph 03 9225 8757 or email danstar@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.

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