Federal Court. Can it be said that the existence of a protection finding, with the result that s 198 neither required nor authorised removal, did not render legally unreasonable the giving of heavy weight in the Applicant's favour to the extent of impediments to removal, particularly because of his statement "that he may request removal to Nepal in light of the other legal consequences of refusal of the visa"?
Para 9.2 of Direction 110 read:
9.2. Extent of impediments if removed
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
As a protection finding had been made for the Applicant's benefit, he was in the NZYQ cohort and was granted a BVR. He submitted to the Tribunal in the context of the review of a decision under s 501(1) of the Migration Act 1958 (Cth) to refuse to grant him a protection visa:
Request to return to harm in Nepal
78. Given how challenging and unsafe the other legal consequences of an affirm decision are for [the Applicant], it is conceivable that [the Applicant] may opt to return to the risk of serious harm in Nepal.
In setting aside the delegate's decision, the Tribunal said as follows:
[Extent] of impediments if removed
53. Paragraph 9.2 of the Direction require[s] the Tribunal to consider the extent of any impediments that the Applicant may face if removed from Australia to Nepal. There is nothing in that paragraph which suggests such should not be considered where, as here, a protection finding has been made.
54. The protection finding (which is not challenged) was made on the basis of the ongoing established mental health issues the Applicant has and the distinct lack of social and medical supports which would be available to him in Nepal. He would also be subject to discrimination in Nepal because of his mental health issues. The consequence of removal to Nepal would be these impediments.
55. The Tribunal finds that this Other Consideration weighs heavily against visa refusal.
The Minister applied to the Federal Court (FCA) for judicial review of the Tribunal's decision.
Some of the questions to the FCA were as follows:
Question 1: Is para 9.2 of Direction 110 "expressed in hypothetical terms that are not tied to the likelihood or otherwise of the non-citizen being removed to their home country"?
Question 2: Is the Tribunal "required to consider paragraph 9.2 on the assumption that the person is removed to their home country"?
Question 3: Is the Minister's submissions that the Applicant "could not be removed to Nepal because of the protection finding" an overstatement, as he could be removed?
Question 4: Can it be said that the existence of a protection finding, with the result that s 198 neither required nor authorised removal, did not render legally unreasonable the giving of heavy weight in the Applicant's favour to the extent of impediments to removal, particularly because of his statement "that he may request removal to Nepal in light of the other legal consequences of refusal of the visa"?
The FCA answered those questions as follows: