High Court. "Where the representations do include, or the circumstances do suggest, a claim of non‑refoulement under domestic law", is it open to the decision-maker to "defer assessment of whether the former visa holder is owed those non‑refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa"?
Some of the questions to the High Court (HCA) were as follows:
Question 1: Is a Refugee and Humanitarian (Class XB) Subclass 202 (Global Special Humanitarian) visa a protection visa?
Question 2: Is the power of a decision‑maker under s 501CA(4) of the Migration Act 1958 (Cth) to revoke a decision to cancel a visa held by a non‑citizen if satisfied that there is "another reason" why that decision should be revoked a discretionary power?
Question 3: Is it probable that Parliament intended for the broad power under s 501CA(4) "to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration"?
Question 4: "Where the representations do not include, or the circumstances do not suggest, a non‑refoulement claim", is there anything "in the text of s 501CA, or its subject matter, scope and purpose, that requires the Minister to take account of any non‑refoulement obligations when deciding whether to revoke the cancellation of any visa that is not a protection visa"?
Question 5: "Where the representations do include, or the circumstances do suggest, a non‑refoulement claim by reference to unenacted international non‑refoulement obligations", may that claim be considered by the decision-maker under s 501CA(4)?
Question 6: "Where the representations do include, or the circumstances do suggest, a non‑refoulement claim by reference to unenacted international non‑refoulement obligations", are those obligations "mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error"?
Question 7: "Where the representations do include, or the circumstances do suggest, a claim of non‑refoulement under domestic law", may the claim be considered by the decision‑maker under s 501CA(4)?
Question 8: "Where the representations do include, or the circumstances do suggest, a claim of non‑refoulement under domestic law", is it open to the decision-maker to "defer assessment of whether the former visa holder is owed those non‑refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa"?
The HCA answered those questions as follows: