Federal Court. Does the reference to 'claimed harm' in para 9.1(6) in Direction 90 mean harm that is claimed to be the necessary 'specific type of harm' that must be demonstrated in order to give rise to an international non-refoulement obligation? Did para 9.1(6) require the Tribunal to "consider whether the applicant's case was 'an appropriate case' to assume in the applicant's favour whether the claimed harm relied upon to support the non-refoulement obligation will occur"?
Para 9.1(6) of Direction 90 provided (emphasis added): "It may not be possible at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis."
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Are instruments under s 499 of the Migration Act 1958 (Cth) species of delegated legislation to be interpreted in accordance with general principles relating to statutory construction?
Question 2: Should directions issued under s 499 be interpreted in their statutory context?
Question 3: Does the reference to 'claimed harm' in para 9.1(6) mean harm that is claimed to be the necessary 'specific type of harm' that must be demonstrated in order to give rise to an international non-refoulement obligation?
Question 4: Is it necessary for decision-makers to take account of the alleged facts, for instance giving rise to a fear of harm not contemplated by non-refoulement obligations, underpinning' a claim that non-refoulement obligations are owed even where the assessment as to whether those obligations are owed is deferred?
Question 5: Does para 9.1(6) allow the decision-maker to assume that protection obligations are owed?
Question 6: If the answer to Question 5 is 'no', was the Tribunal "required to consider whether the applicant's case was 'an appropriate case' to assume in the applicant's favour whether the claimed harm relied upon to support the non-refoulement obligation will occur"?
Question 7: Does the burden born by judicial review applicant to prove that an error is material only arise when materiality is put in issue?
The FCA answered those questions as follows: