BDQ19 v Minister for Home Affairs

The matter of BDQ19 v Minister for Home Affairs involved an appeal against the decision of the Administrative Appeals Tribunal (AAT) to affirm the non-revocation of a visa cancellation for an Afghan national. The primary legal issues addressed by the court were the proper construction of certain clauses of Direction No. 65 concerning visa refusal and cancellation, the consideration of non-refoulement obligations, and the tribunal's approach to the best interests of the applicant's children. The court further examined whether the AAT had committed jurisdictional errors by failing to consider relevant evidence and the risk of harm to the applicant if returned to Afghanistan.

The court found that the AAT had erred in its construction of clause 14.1(2) of Direction No. 65, which pertains to non-refoulement obligations. The Tribunal had incorrectly interpreted this clause as inconsistent with sections 197C and 198 of the Migration Act, which deal with the duty to remove unlawful non-citizens and the relevance of non-refoulement obligations, respectively. The court clarified that clause 14.1(2) was a statement of government policy, consistent with the Migration Act, and thus the Tribunal's failure to consider it was a jurisdictional error. Additionally, the AAT had failed to consider the risk of harm to the applicant if returned to Afghanistan, and recent correspondence relevant to the best interests of the applicant’s children in Australia, leading to further jurisdictional errors. While the court found some errors in the AAT’s consideration of the character test, these were deemed not material.

The court ordered that grounds 2 and 3 of the applicant's application for judicial review be upheld, leading to the quashing of the AAT's decision. The matter was remitted to the AAT for redetermination by a differently constituted tribunal. Furthermore, the Minister was directed to pay the applicant's costs of the application.