Federal Court. Is there a principle of constructive refoulement in Australian law?
Following the decision in NZYQ, the Minister released the Applicant from immigration detention and granted him a BVR.
In the context of s 501(1) of the Migration Act 1958 (Cth), the Applicant argued before the Tribunal that Direction 90 mandated consideration of the legal consequences of its decision. He also argued that of such consequences was that to affirm the delegate's decision would lead to constructive refoulment, in that he would be compelled to depart Australia to the country from which he feared harm, given the awful conditions of immigration detention in Australia.
The Federal Court answered that question as follows: