ABB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 715

ABB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 715

The Tribunal's statutory task under s 36(3) required it to make a finding on the material before it that the appellant had a current right to enter and reside in the RSA. Because Note (v) on the appellant's permanent residence permit stated that permanent residents absent from the Republic for three years or longer may lose their right to permanent residence, and the appellant had been absent for more than three years at the time of the Tribunal's decision, it was not open to find an unqualified right to enter and reside without considering the permit's defeasibility or making further inquiry. The failure was material because s 36(3) was central to the refusal of the protection visa and...

Jurisdiction
Australia
Judgment Date
22 June 2022
Procedural Posture
Migration Appeal From Federal Circuit Court Dismissal of Judicial Review Application Concerning Refusal of a Class XA Subclass 866 Protection Visa / Appeal to the Federal Court of Australia
Outcome
Appeal allowed; Federal Circuit Court orders set aside; Tribunal decision quashed and remitted for determination according to law; Minister ordered to pay costs.
Legal Topics
['protection Visa' 'section 36(3) of the Migration Act 1958 (cth)' 'right to Enter and Reside in a Third Country' 'permanent Residence in the Republic of South Africa' 'jurisdictional Error' 'materiality' 'section 424 a Procedural Fairness']
['migration Law' 'administrative Law' 'judicial Review' 'procedural Fairness'] ['protection Visa' 'section 36(3) of the Migration Act 1958 (cth)' 'right to Enter and Reside in a Third Country' 'permanent Residence in the Republic of South Africa' 'jurisdictional Error' 'materiality' 'section 424 a Procedural Fairness']

Case Brief

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Procedural Posture

Migration Appeal From Federal Circuit Court Dismissal of Judicial Review Application Concerning Refusal of a Class XA Subclass 866 Protection Visa / Appeal to the Federal Court of Australia

Legal Issues

  1. 1 ["Whether the Tribunal erred in applying s 36(3) of the Migration Act 1958 (Cth) by failing to consider whether the appellant's right to enter and reside in the Republic of South Africa was current, qualified or defeasible because of prolonged absence." 'Whether the Federal Circuit Court erred in holding that the Tribunal was only required to consider clearly articulated claims made by the appellant concerning the currency of his South African permanent residence.' "Whether information obtained from South African officials about the appellant's permanent residence status engaged s 424A of the Migration Act 1958 (Cth)." 'Whether any error by the Tribunal was material and constituted jurisdictional error.']

Ratio Decidendi

The Tribunal's statutory task under s 36(3) required it to make a finding on the material before it that the appellant had a current right to enter and reside in the RSA. Because Note (v) on the appellant's permanent residence permit stated that permanent residents absent from the Republic for three years or longer may lose their right to permanent residence, and the appellant had been absent for more than three years at the time of the Tribunal's decision, it was not open to find an unqualified right to enter and reside without considering the permit's defeasibility or making further inquiry. The failure was material because s 36(3) was central to the refusal of the protection visa and...

Court Disposition

Appeal allowed; Federal Circuit Court orders set aside; Tribunal decision quashed and remitted for determination according to law; Minister ordered to pay costs.

Orders

  • ['The appeal be allowed.' "The orders of the Federal Circuit Court of Australia made on 28 May 2021 be set aside and in lieu thereof the following orders be made: (a) The decision of the second respondent dated 13 December 2018 be quashed. (b) The appellant's application for review dated 24 October 2016 be remitted...