BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96

FEDERAL COURT OF AUSTRALIA

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 Appeal from: BCR16 v Minister for Immigration and Border Protection [2016] FCA 965

File number: VID 1059 of 2016

Judges: BROMBERG, DAVIES AND MORTIMER JJ

Date of judgment: 13 June 2017

Catchwords: MIGRATION – exercise of power under s 501CA(4) of the Migration Act 1958 (Cth) – appellant made representations in accordance with s 501CA(3) to the Assistant Minister that he feared harm if forced to return to his country of nationality – Assistant Minister failed to consider appellant's claim to fear harm in circumstances where appellant could apply for protection visa – whether exercise of revocation power under s 501CA(4) requires consideration of a claim to fear harm in the applicant's country of nationality in circumstances where applicant may apply for protection visa – consideration of whether there is an order in which the criteria for a protection visa must be considered – discussion of Minister for Immigration and Border Protection v Le (2016) 244 FCR 56 – appeal allowed

Legislation: Migration Act 1958 (Cth), ss 36, 65, 197C, 198, 499, 501, 501C, 501CA Migration Regulations 1994 (Cth), Sch 2 cl 866.225, Sch 4 public interest criterion 4001 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976) Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)