SZRTC v Minister for Immigration and Border Protection

The applicants, SZRTC, appealed against the decision of the Minister for Immigration and Border Protection to refuse their applications for protection visas. The applicants, refugees from Iran, argued that they had a right to temporary residence in Turkey, which should be considered under s 36(3) of the Migration Act 1958 (Cth). The central issue before the court was whether a ‘right to enter and reside’ in another country is a right comprehended by s 36(3) and whether the temporary period of residence must be co-extensive with the period of protection obligation.

The court considered the construction of s 36(3) of the Act, which contains a series of qualifications on the grant of protection visas. The court held that s 36(3) applies when an applicant has not taken all possible steps to avail themselves of a right to enter and reside in a third country. The court rejected the applicants’ argument that the word “temporarily” should be interpreted as an indefinite period, as this would extend the meaning of the word beyond its ordinary understanding. Instead, the court held that the word “temporarily” should be interpreted in the context of each case, and the tension between the stability suggested by the word “reside” and the transience implied by the word “temporarily” must be resolved on the facts.

The court ultimately found that the applicants did not have a right to temporary residence in Turkey, as they had not taken all possible steps to avail themselves of such a right. The appeal was dismissed with costs.