FEDERAL CIRCUIT COURT OF AUSTRALIA
| DQD16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2021] FCCA 57 |
| Catchwords: MIGRATION – Protection visa application –– application for review of decision by Administrative Appeals Tribunal – inter-caste marriage of Indian nationals with mental health issues – well-founded fear of persecution on grounds of inter-caste marriage and political opinion – applicants able to avail themselves of their right to enter and reside in Nepal – no protection obligations by operation of section 36(3) of the Migration Act – no error in construction of section 36(3) of the Migration Act – no failure to consider suicide as a form of significant harm – no error in finding the inability to access health services was not a Convention reason – no failure to consider an integer of a claim – no breach of section 499 of the Migration Act for failure to consider DFAT report – application for review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 65, 499. |
| First Applicant: | DQD16 |
| Second Applicant: | DQE16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2581 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 2 April 2020 |
| Date of Last Submission: | 2 April 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 20 January 2021 |
REPRESENTATION
| Counsel for the Applicants: | Mr McBeth |
| Solicitors for the Applicants: | Oboodi Barristers & Solicitors |
| Counsel for the Respondents: | Ms Amamoo |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 29 November 2016 and amended on 16 March 2020 be dismissed.
The Applicants pay the First Respondent’s costs fixed in the sum of $6,000.
The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2581 of 2016
| DQD16 |
First Applicant
| DQE16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE… |
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Details
- AGLC
- DQD16 v Minister for Immigration [2021] FCCA 57
- Case
- [2021] FCCA 57
- Decision Date
CaseChat Overview and Summary
The applicants, Indian nationals who had entered into an inter-caste marriage and suffered from mental health issues, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT). The AAT had affirmed the Minister for Immigration's refusal to grant them a protection visa. The applicants contended they had a well-founded fear of persecution in India on the grounds of their inter-caste marriage and political opinion.
The central legal issue before the Federal Circuit Court was whether the AAT had erred in its construction and application of section 36(3) of the *Migration Act 1958* (Cth). This section concerns the non-refoulement obligations of the Minister, specifically whether the applicants could avail themselves of their right to enter and reside in Nepal, thereby negating Australia's protection obligations. Further issues included whether the AAT had failed to consider suicide as a form of significant harm, whether the inability to access health services constituted a Convention reason for persecution, whether an integer of the applicants' claims had been overlooked, and whether there had been a breach of section 499 of the *Migration Act* for failing to consider a Department of Foreign Affairs and Trade (DFAT) report.
Judge McNab found no error in the AAT's decision. The court reasoned that the AAT had correctly interpreted section 36(3) of the *Migration Act*, concluding that the applicants possessed the ability to enter and reside in Nepal, which meant Australia had no protection obligations towards them. The court also determined that the AAT had adequately considered the potential for suicide as significant harm and that the inability to access health services was not a Convention reason for persecution. Furthermore, the court found no failure to consider any part of the applicants' claims or a breach of section 499 regarding the DFAT report.
Consequently, the application for review was dismissed. The applicants were ordered to pay the First Respondent's costs, fixed at $6,000, and the name of the First Respondent was amended to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The central legal issue before the Federal Circuit Court was whether the AAT had erred in its construction and application of section 36(3) of the *Migration Act 1958* (Cth). This section concerns the non-refoulement obligations of the Minister, specifically whether the applicants could avail themselves of their right to enter and reside in Nepal, thereby negating Australia's protection obligations. Further issues included whether the AAT had failed to consider suicide as a form of significant harm, whether the inability to access health services constituted a Convention reason for persecution, whether an integer of the applicants' claims had been overlooked, and whether there had been a breach of section 499 of the *Migration Act* for failing to consider a Department of Foreign Affairs and Trade (DFAT) report.
Judge McNab found no error in the AAT's decision. The court reasoned that the AAT had correctly interpreted section 36(3) of the *Migration Act*, concluding that the applicants possessed the ability to enter and reside in Nepal, which meant Australia had no protection obligations towards them. The court also determined that the AAT had adequately considered the potential for suicide as significant harm and that the inability to access health services was not a Convention reason for persecution. Furthermore, the court found no failure to consider any part of the applicants' claims or a breach of section 499 regarding the DFAT report.
Consequently, the application for review was dismissed. The applicants were ordered to pay the First Respondent's costs, fixed at $6,000, and the name of the First Respondent was amended to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Orders
Orders of the court
ORDERS
1. The application filed on 29 November 2016 and amended on 16 March 2020 be dismissed.
2. The Applicants pay the First Respondent’s costs fixed in the sum of $6,000.
3. The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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