Minister for Immigration and Citizenship v Anochie [2012] FCA 1440

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Anochie [2012] FCA 1440 Citation: Minister for Immigration and Citizenship v Anochie [2012] FCA 1440

Appeal from: Anochie v Minister for Immigration and Citizenship [2012] AATA 234

Parties: MINISTER FOR IMMIGRATION AND CITIZENSHIP v JOHN CHUKWUDI ANOCHIE and ADMINISTRATIVE APPEALS TRIBUNAL

File number: NSD 748 of 2012

Judge: PERRAM J

Date of judgment: 18 December 2012

Catchwords: ADMINISTRATIVE LAW – Administrative Appeals Tribunal – appeal from decision of Tribunal setting aside decision of Minister's delegate to cancel first respondent's visa under s 501(2) of the Migration Act 1958 (Cth) – whether the Tribunal correctly applied 'Direction (No. 41)—Visa Refusal and Cancellation Under s 501' – whether, despite error, relief should be refused on discretionary grounds IMMIGRATION – Visas – cancellation – character – 'Direction (No. 41)—Visa Refusal and Cancellation Under s 501' – Commonwealth's non-refoulement obligations – whether Direction 41's reference to non-refoulement should be interpreted in the manner of a domestic statute – whether, alternatively, recourse must be had to public international law STATUTORY INTERPRETATION – Delegated legislation – ministerial direction under s 499 of the Migration Act 1958 (Cth) – whether direction is to be interpreted as if an Act of Parliament or whether some relaxation of the approach to interpretation is called for – consideration of possible implications of Parliamentary Counsel and Other Legislation Amendment Act 2012 (Cth) PUBLIC INTERNATIONAL LAW – International Covenant on Civil and Political Rights [1980] ATS 23 – non-refoulement – consideration of the appropriate materials to be used in interpreting the Covenant and, in particular, the views and General Comments of the United Nations Human Rights Committee – consideration of the source of the non-refoulement obligation – consideration of the test to be applied in non-refoulement cases – whether 'irreparable harm' needs to be a 'necessary and foreseeable consequence' of deportation – whether, alternatively, the 'necessary and foreseeable consequence' needs only be the risk of 'irreparable harm' – whether non-refoulement obligation extends beyond arts 6 and 7 of the Covenant – whether there must be a finding of 'irreparable harm' as a matter of fact