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

In the case of ABB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Federal Court of Australia considered an appeal against a decision of the Federal Circuit Court of Australia, which had dismissed an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT). The central issue was whether the Tribunal erred in not considering the qualified nature of the appellant's right of entry and residence in the Republic of South Africa (RSA), despite this not being explicitly raised as a claim by the appellant. The appellant, a national of the Democratic Republic of Congo (DRC), had applied for a protection visa due to fears of persecution in both the DRC and RSA. The Tribunal had sought information on the appellant's citizenship and migration status in RSA, confirming that he held a permanent residence permit. However, it did not consider the potential defeasibility of this permit due to prolonged absence from RSA.

The legal issue before the court was whether the Tribunal was required to consider the defeasibility of the appellant's permanent residence status in RSA under section 36(3) of the Migration Act 1958 (Cth). The court held that section 36(3) operates as a qualification on the criterion for a protection visa under section 36(2) and has no independent operation. The Tribunal's task was to apply this qualification in determining whether the appellant had a right to enter and reside in another country and had not taken all possible steps to avail himself of that right. The court found that the Tribunal's failure to consider the defeasibility of the appellant's right to enter and reside in RSA constituted a jurisdictional error. This was because the non-existence or qualified nature of such a right was a material consideration under section 36(3) and not a claim that the appellant needed to explicitly raise.

The court allowed the appeal, set aside the orders of the Federal Circuit Court, and remitted the matter to the Tribunal for reconsideration. The first respondent was ordered to pay the appellant's costs of the appeal. This decision underscores the importance of the Tribunal considering all relevant factors, even those not expressly raised by the applicant, in making its determinations under the Migration Act.