ABB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 22 June 2022
• Neutral Citation: [2022] FCA 715
• Date: 22 June 2022

Federal Court of Australia

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

Appeal from:	ABB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1162
File number(s):	SAD 108 of 2021
Judgment of:	ALLSOP CJ
Date of judgment:	22 June 2022
Catchwords:	MIGRATION – appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of a delegate of the Minister not to grant a protection visa – where delegate found appellant to be a permanent resident of the Republic of South Africa – where Tribunal sought information regarding the citizenship and migration status of the appellant – where information sought confirmed permanent resident status – where permanent residence permit liable to be rescinded following prolonged absence – s 36(3) of the Migration Act 1958 (Cth) – whether right to enter and reside lapsed – whether currency of right to enter and reside a mandatory consideration in the absence of an express claim as to lapse – whether Tribunal erred in application of s 36(3)
Legislation:	Migration Act 1958 (Cth) ss 36, 47, 65, 91N, 91P, 91R, 424A
Cases cited:	ABB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1162 Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 DQU16 v Minister for Home Affairs [2021] HCA 10; 388 ALR 363 Kasupene v Minister for Immigration and Citzenship [2008] FCA 1609; 49 AAR 77 Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 344 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332; 116 FCR 154 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; 215 FCR 35 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 60; 150 FCR 522 NBLB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2005] FCA 1051 Suntharajah v Minister for Immigration and Multicultural Affairs [2001] FCA 1391 SZVCZ v Minister for Immigration and Border Protection [2017] FCAFC 130; 252 FCR 540 V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018; 114 FCR 408
Division:	General Division
Registry:	South Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	83
Date of last submission/s:	21 December 2021 (first respondent)
Date of hearing:	14 December 2021
Counsel for the Appellant:	Mr S Ower QC with Ms N Kereru
Solicitor for the Appellant:	Dentons
Counsel for the First Respondent:	Mr DF O’Leary SC
Solicitor for the First Respondent:	Australian Government Solicitor

ORDERS

		SAD 108 of 2021
BETWEEN:	ABB19 Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	ALLSOP CJ
DATE OF ORDER:	22 June 2022

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of the Federal Circuit Court of Australia made on 28 May 2021 be set aside and lieu thereof the following orders be made:

   1. The decision of the second respondent dated 13 December 2018 be quashed.

   2. The appellant’s application for review dated 24 October 2016 be remitted to the second respondent for determination according to law.

   3. The first respondent pay the costs of the applicant, as agreed or assessed.

3. The first respondent pay the appellant’s costs of the appeal, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ALLSOP CJ:

1. This is an appeal against orders made by the Federal Circuit Court of Australia on 28 May 2021 dismissing the appellant’s application for review of a decision of the second respondent, the Administrative Appeals Tribunal: ABB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1162 (J). The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Class XA subclass 866 Protection Visa (Protection Visa) under s 65 of the Migration Act 1958 (Cth) (Act). The Tribunal affirmed the decision on the basis that the appellant had an enforceable right to enter and reside in the Republic of South Africa (RSA), and the Tribunal was not satisfied that the appellant had a well-founded fear that the RSA would return the appellant to the Democratic Republic of the Congo (DRC). Accordingly, the appellant was not a person in respect of whom Australia has protection obligations by reason of the engagement of s 36(3) of the Act. The critical issue on the appeal is whether the appellant did indeed have an enforceable right to enter and reside in the RSA, or whether that right had lapsed as at the date of the Tribunal’s decision, or whether the Tribunal was in error insofar as it failed to consider the currency of or qualified nature of the right to enter and reside.

Background

2. The appellant was born in the DRC, and is from the Bangubangu ethnic group. He obtained Congolese citizenship by birth. The appellant lived and worked in Rwanda from 1997 to 2001. The appellant relocated to the RSA in 2001 and applied for asylum, fearing that his life would be taken by Rwandan soldiers. The appellant’s refugee status was formally recognised by the RSA in 2002. The appellant became a permanent resident of the RSA in 2009. The appellant’s permanent residence permit, which was provided to the delegate of the Minister and to the Tribunal, stipulates in Note (v) on the face of the document that:

Permanent residents who are absent from the Republic for three years or longer may lose their right to permanent residence in the Republic. A period of absence may only be interrupted by an admission and sojourn in the Republic.

3. In 2013, the appellant applied for South African citizenship, which application had not, as at the date of the Tribunal’s decision, been determined. The appellant arrived in Australia on 14 September 2014 on an Australian visitor visa to attend a conference, and has not departed since. On 10 October 2014 the appellant applied for a Protection Visa, which was refused by a...