Tag: non-refoulement

The ‘fake news’ of Direction 75

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]

Non-refoulement obligations extend to individuals in respect of whom a determination of refugee status is yet to be made

See Omar v Minister for Home Affairs [2019] FCA 279, [55]:

The non-refoulement obligations in Art 33 also extend to individuals in respect of whom a determination of refugee status is yet to be made. This was emphasised by French J (as his Honour then was) in Patto v Minister for Immigration and Multicultural Affairs[2000] FCA 1554; 106 FCR 119 at [28], where his Honour stated that “[a]s a matter of necessary implication, [Art 33] will apply to persons seeking protection under the Convention whose entitlement has not been established”, and that “[t]he obligation of non-refoulement is of fundamental importance notwithstanding that individuals may not have been recognised as refugees”.