Federal Court. When considering the exercise of his discretionary power under s 501A(2) to refuse to grant a visa in the national interest, is the nature of the visa a mandatory consideration? As Minister accepted Applicant would suffer harm if returned to NZ, should Minister have: explained why returning her to NZ would be in the national interest; considered "the impact on Australia’s national interest of not complying with the international non-refoulement obligations which he acknowledged Australia owed to the applicant"?
The questions to the Federal Court (FCA) were as follows:
Question 1: When considering the exercise of his discretionary power under s 501A(2) of the Migration Act 1958 (Cth) to refuse to grant a visa in the national interest, is the nature of the visa a mandatory consideration?
Question 2: As the Minister accepted that the Applicant would suffer harm if returned to New Zealand (NZ), should the Minister have explained why returning her to NZ would be in the national interest?
Question 3: Should Minister have considered "the impact on Australia’s national interest of not complying with the international non-refoulement obligations which he acknowledged Australia owed to the applicant, because there were substantial grounds for believing that there was a real risk of her being killed or seriously harmed if refouled to New Zealand"?
The FCA answered those questions as follows: