Federal Court. Was the Tribunal obliged under para 9.1(6) of Direction 90, in reviewing a decision made under s 501CA(4) of the Migration Act 1958 (Cth), to consider whether it was appropriate to assume that the ‘claimed harm’ would occur?
Para 9.1(6) of Direction 90 provided: "It may not be possible at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis."
The Federal Court answered that question as follows: