In Omar v Minister for Home Affairs [2019] FCA 279, Direction 75 was found not to be sufficient to overcome the defects defects identified in Direction 65 by BCR16.
In particular:
- whether a person is owed non-refoulement obligations is not the same as whether a person might be granted a protection visa: see [58], [76], and also Ali at [28]
- whether a person is owed non-refoulement obligations and whether to comply with those questions is not the same as merely assessing the risk of harm, but instead also requires consideration of the significance of adhering to international law as ‘another reason’ to revoke a cancellation (notwithstanding s 197C, because s 197C/198 operate after a refusal to revoke a cancellation): see [65]-[66]