Federal Court (Full Court). Do the definition of "non-refoulement obligations" under s 5(1) of the Migration Act 1958 (Cth) or s 197C(1) satisfy the description under para 9.1(1) of Direction 90 of being “tests enunciated in the Act”?
Para 9.1(1) of Direction No. 90 provided that, "in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act".
Section 5(1) of the Migration Act 1958 (Cth) contained the following definition:
“non-refoulement obligations” includes, but is not limited to:
(a) non-refoulement obligations that may arise because Australia is a party to:
(i) the Refugees Convention; or
(ii) the Covenant; or
(iii) the Convention Against Torture; and
(b) any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).
Section 197C(1) provide as as follows:
(1) For the purposes of section 198 [removal from Australia of unlawful non‑citizens], it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
The FCAFC answered that questions as follows: