Omar v Minister for Home Affairs

The applicant, a non-citizen in Australia, sought judicial review of the Assistant Minister’s decision not to revoke the cancellation of his visa under section 501CA(4) of the Migration Act 1958 (Cth). The Assistant Minister considered the applicant’s non-refoulement obligations but did not determine whether such obligations were owed because the applicant could make a valid application for a protection visa. The applicant argued that the Assistant Minister failed to perform the statutory task by not considering the non-refoulement obligations owed to him.

The court was required to determine whether the Assistant Minister failed to perform the statutory task by not considering the non-refoulement obligations owed to the applicant. The court had to consider the content of non-refoulement obligations at international law and in the criteria for the grant of a protection visa under the Migration Act 1958 (Cth), as well as Direction 75. The court also had to consider the case of BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96, which held that neither a Minister nor an Assistant Minister are bound to comply with directions given under section 499(1) of the Migration Act.

The court found that the Assistant Minister failed to perform the statutory task by not considering the non-refoulement obligations owed to the applicant. The court held that engagement of Australia’s non-refoulement obligations may be a consequence or outcome of a successful conclusion to the protection visa process, through the grant of a visa. However, if no visa is granted, there is no protection from non-refoulement unless that occurs in the exercise of some other power, and in that context the imperative language in section 197C would need to be considered. The court held that the Assistant Minister’s reliance on the theoretical protection visa process was irrational because it did not consider the non-refoulement obligations owed to the applicant. The court set aside the decision of the Assistant Minister and ordered that the respondent pay the applicant’s costs.