Reservations about BCR16?

Federal Court. In BCR16, FCAFC explained there was a difference between “claiming to fear harm if required to return to a place and non-refoulement obligations”. Is that distinction illusory in some circumstances? Does the fact that an unlawful non-citizen is eligible to apply for a substantive visa that can be granted when the applicant is in the migration zone but has not done so prevent the application of s 198(2B) to him or her? Should those who advise the Minister, and his Department, "be encouraged to ensure that clear factual information about these matters is put before the Tribunal, so that its merits review function can be most effectively exercised"?

The questions to the Federal Court (FCA) were as follows:

Question 1: In BCR16, the Full Court of the FCA explained there was a difference between “claiming to fear harm if required to return to a place and non-refoulement obligations”. Is that distinction illusory in some circumstances?

Question 2: Does the fact that an unlawful non-citizen is eligible to apply for a substantive visa that can be granted when the applicant is in the migration zone but has not done so prevent the application of s 198(2B) to him or her?

Question 3: Should those who advise the Minister, and his Department, "be encouraged to ensure that clear factual information about these matters is put before the Tribunal, so that its merits review function can be most effectively exercised"?

The FCA answered those questions as follows:

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