Federal Court. Does Paragraph 9.1.2(1) of Direction 110 recognise that a person may raise international non-refoulement obligations distinct from the statutory “protection obligations” assessed in the protection visa process?
By the time of the Tribunal's review of a decision made under s 501CA(4) of the Migration Act 1958 (Cth), the applicant had not applied for merits review of a separate decision to refuse to grant him a protection visa.
Paragraph 9.1.2(1) of Direction 110 provided:
9.1.2. Non-citizens not covered by a protection finding
(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Does Paragraph 9.1.2(1) of Direction 110 recognise that a person may raise international non-refoulement obligations distinct from the statutory “protection obligations” assessed in the protection visa process?
Question 2: Can it be said paragraph 9.1.2 is not engaged because the relevant consideration in sub-part 9 concerns the “legal consequences of the decision” identified in paragraph 9(1)(a), and because the protection visa refusal had been finally determined, therefore not being a consequence of the Tribunal's decision?
The FCA answered those questions as follows: