Federal Court. In Ibrahim, FCAFC had held that Assistant Minister conflated Australia’s non-refoulement obligations under international treaties with the protection obligations under the Migration Act 1958 (Cth), thus vitiating decision under s 501BA(2) with jurisdictional error. Does the same principle apply to decisions under s 501(2)? Here, did Assistant Minister incorrectly assume that Applicant’s claims would be considered in the same way if he applied for a protection visa, as the circumstances in which consideration of non-refoulement occurs are very different as between the determination of a visa application under s 65 and the exercise of the discretionary power in s 501(2)? Does Direction 75 require that the protection criteria in s 36(2)(a) and (aa) be considered before all other criteria for a protection visa?
The questions to the Federal Court (FCA) were as follows:
Question 1: In Ibrahim, the FCAFC had held that Assistant Minister conflated Australia’s non-refoulement obligations under international treaties with the protection obligations under the Migration Act 1958 (Cth), thus vitiating decision under s 501BA(2) with jurisdictional error. Does the same principle apply to decisions under s 501(2)?
Question 2: Here, did the Assistant Minister incorrectly assume that Applicant’s claims would be considered in the same way if he applied for a protection visa, as the circumstances in which consideration of non-refoulement occurs are very different as between the determination of a visa application under s 65 and the exercise of the discretionary power in s 501(2)?
Question 3: Does Direction 75 require that the protection criteria in s 36(2)(a) and (aa) be considered before all other criteria for a protection visa?
The FCA answered those questions as follows:
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