Federal Court of Australia

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

ORDERS

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:

(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 to the second respondent for determination according to law.

(c)    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 delegate of the Minister on 17 October 2016. The appellant sought review of the delegate’s decision, which decision was affirmed by the Tribunal on 13 December 2018. In January 2019 the appellant applied for review of the decision of the Tribunal in the Federal Circuit Court of Australia, as it was then known, and to which I will continue to refer to as the Federal Circuit Court. That application for review was dismissed by a judge of that court on 28 May 2021. The matter before the Court is the appeal from the decision of the Federal Circuit Court.

4    Before the Tribunal, the appellant consented to the Tribunal making enquiries with the government of the RSA regarding his citizenship status. The Tribunal received advice that the appellant was a permanent resident, but no further information was provided as to the status of his citizenship application. This information, referred to by the parties as the “Information from Post”, was never put to the appellant. In the application below, and in this appeal, the appellant now disputes that he has a currently existing “right” to enter and reside in the RSA due to his prolonged absence from that country.

5    The appellant claimed to fear harm in the DRC because of his anti-government political opinion, his education, his membership of the Eastern tribe, and the likelihood that he will be viewed with suspicion upon his return from other countries. The appellant claimed to fear harm in the RSA because of his involvement with the Congolese Refugee Association and his status as a foreigner. He claimed that there was no state protection for foreigners in the RSA and that he was at risk of being refouled to the DRC by the RSA.

The decision of the Minister’s delegate

6    The Minister’s delegate found that the appellant is a national of the DRC, and has a right to enter and reside in the RSA. On whether the existence of the right to enter and reside disqualified the appellant from application for a protection visa, the Minister’s delegate reached the following conclusions:

The applicant claims that he will suffer persecution and significant harm in South Africa and also claims that he will be returned to the DRC by South Africa.

In section B I have considered if, in relation to South Africa, the applicant has a well-founded fear of persecution. In section C, I have considered if there is a real risk that the applicant will suffer significant harm in South Africa. As noted, I am not satisfied the applicant's fear of persecution in South Africa is well-founded. Further, I am not satisfied there are substantial grounds for believing that there is a real risk that the applicant will be subject to significant harm on return to South Africa.

In relation to his claim that he will be returned to a country in which he has a well-founded fear of persecution or where he is at real risk of suffering significant harm, I note that South Africa is a signatory to the Refugees Convention. In relation to refoulement, the US Country Report on Human Rights Practices for 2015 states:

There were no specific reports of the government forcibly returning refugees to countries in which their lives would be in danger. Refugee rights NGOs, however, expressed concern that Operation Fiela—a government campaign to combat crime by targeting neighborhoods with historically high immigrant populations—may have led to the quick arrest and deportation of individuals without adequate asylum screening. The operation rounded up and repatriated more than 15,000 irregular immigrants from April 28 to year's end.

I am not satisfied that the applicant is at risk of refoulement from South Africa. He has been recognised as a refugee in South Africa, and has been granted permanent residency.

I find that the applicant possesses a current right to enter, return to and reside in South Africa, where he has permanent residency status, and where he will not be at risk of Convention-based persecution, significant harm or of refoulement. The applicant does not meet the provisions of subsections 36(4), (5) or (5A) of the Migration Act.

7    The Minister’s delegate detailed the appellant’s personal history, which involved persecution during his time in the DRC due to his previous employment in Rwanda, the murder of his wife and daughter by members of the military in the DRC, and violence during his time in the RSA due to his status as a foreigner and his involvement in various protests and demonstrations.

8    With respect to the appellant’s claims of a fear of persecution in the DRC, the Minister’s delegate accepted the evidence of widespread displacement and death, and accepted that the appellant may have been mistreated during his time in Goma by Rwandan-aligned rebel groups. The Minister’s delegate further found it plausible that the appellant’s family may have been harmed or killed if they were present in Goma. The delegate concluded, however, that due to the high numbers of displaced persons present in the area at the time, it was not plausible that the appellant would be personally recognised as a person who had worked in Rwanda.

9    As to the appellant’s claims of a fear of persecution in, or refoulement by, the RSA, the delegate dismissed the appellant’s evidence as inconsistent and unreliable. The Minister’s delegate did not accept that the South African police would be interested in the appellant solely because of his involvement in a Congolese refugee group or demonstrations, and that they were not, therefore, seeking out the appellant. The delegate did not accept that the appellant had been a victim of two xenophobic attacks in the RSA.

10    The Minister’s delegate found that the appellant’s claims to fear harm in the DRC were based on his actual or imputed political opinion and ethnicity. The delegate further found that the appellant belonged to a particular social group for the purposes of the Refugees Convention, and that the appellant’s claims in relation to the RSA arose from his political opinion and membership of that social group, being “foreigners in South Africa”. The delegate concluded that those were essential and significant reasons for the harm feared as required by s 91R(1)(a) of the Act, and that the harm feared is serious, systematic and discriminatory as required by s 91R(1)(b) and (c). In relation to the DRC, the delegate found that the appellant did not, individually or cumulatively, face a real chance of serious harm arising from his political opinion or ethnicity, and that the appellant therefore lacked a well-founded fear of persecution for a Convention reason. With respect to the appellant’s claims to fear harm in the RSA, the Minister’s delegate found that while the appellant was subject to discrimination as a foreigner, this did not amount to persecution. Nor did the Minister’s delegate accept that the appellant’s political opinion concerning the situation in the DRC would place him at risk of serious harm in the RSA. On this basis, the Minister’s delegate found that the appellant was not a person to whom Australia has protection obligations. The Minister’s delegate further found that the complementary protection provisions are not enlivened in the appellant’s case. The application for a Protection (Class XA) visa was therefore denied.

The decision of the Tribunal

11    The Tribunal began its reasons with an examination of the law relevant to the granting of a protection visa, and the nature of protection obligations (at [5]–[18]). The Tribunal then set out the provisions of the Act relevant to determining the validity of an application for a protection visa (at [23]–[28]) before noting that the critical question which emerged before it was whether the appellant (the applicant below) was prevented from making an application because he was a national of both the DRC and the RSA, which, were dual nationality to be proven, would render the application invalid pursuant to s 46 of the Act.

12    Of relevance to this appeal, at [34] the Tribunal found:

On 6 November 2009 he became a permanent resident of the RSA. In support of his evidence the applicant provided a document titled “Formal Recognition of Refugee Status in the RSA” issued by the RSA Department of Home Affairs. The document identified the applicant's nationality as ‘Congolian (DRC)’.

13    At [38], the Tribunal noted that it had received advice by post (the “Information from Post”) that the appellant was a permanent resident of the RSA.

14    At [44], the Tribunal concluded that there was no evidence to confirm that the appellant had been granted citizenship by, and was therefore not a national of, the RSA. On this basis, the Tribunal concluded that the application was valid.

15    At [81], the Tribunal found that the appellant had a legally enforceable right to enter and reside in the RSA. While the Tribunal did not identify the source of this right, the reference to “[a]s detailed above” suggests it relied on its earlier findings of a right of permanent residence based on the appellant’s permit and the Information from Post:

As detailed above the applicant confirmed that he relocated to RSA in October 2001 and was granted refugee status. He became a permanent resident of the RSA in November 2009. The Tribunal finds that the applicant has a legally enforceable right to enter and reside in the RSA.

16    Pursuant to s 36(3) (and in the absence of proof of one or more of the qualifications in sub-sections (4), (5) or (5A)) the existence of this right to enter and reside in RSA is sufficient to disqualify the appellant from satisfying the criteria for a protection visa. The Tribunal went on to examine whether any of the qualifications applied to the appellant, and concluded (at [111]–[115]):

111. In conclusion, the Tribunal finds that the applicant does not face a real chance of serious harm and systematic and discriminatory conduct directed at him for the essential and significant reason of his political opinion, race or any other Convention related ground in the RSA. The Tribunal finds that the applicant does not face a real chance of persecution now or in the reasonably foreseeable future if he returns to the RSA. His fear of persecution is not well-founded.

112. The Tribunal has also had regard to the applicant's nationality, profile and political involvement in the RSA and it does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the RSA there is a real risk he will suffer significant harm.

113. The Tribunal has had regard to country information and the applicant's profile both in the DRC and the RSA and is not satisfied that there is a well-founded fear of the applicant being forcibly returned to the DRC or any other country where he has a well-founded fear of Convention-based persecution or where there are substantial grounds for believing there is a real risk he will suffer significant harm. The Tribunal finds that the applicant's fear of refoulement is not well-founded.

114. The Tribunal finds that Australia is taken not to have protection obligations to the applicant pursuant to s.36(3). The Tribunal also determines that one or more of the qualifications contained in s.36(4), 36(5) or 36(5A) do not apply.

115. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

The decision of the Federal Circuit Court

17    There were three grounds upon which the appellant brought his application for review in the Federal Circuit Court. First, the appellant contended that the Tribunal failed to afford him procedural fairness insofar as it had before it the appellant’s permanent residence permit which on its face stipulated that permanent residency may be rescinded in the event of prolonged absence from the RSA. Insofar as the Tribunal sought and obtained the Information from Post, it was information that was, or would be, the reason or part of the reason for the Tribunal affirming the decision that was under review. Failure to give the appellant particulars of the Information from Post was said to be a failure to comply with s 424A(1) of the Act.

18    Secondly, the appellant contended that the Tribunal erred by failing to consider whether the appellant’s right to enter and reside in the RSA was a current right as at the date of the decision. That is, the Tribunal failed to consider whether the right had lapsed. This, it was said, was a mandatory consideration, the failure to have regard to which constituted a jurisdictional error.

19    Thirdly, the appellant contended that the Tribunal failed to consider the claim that the appellant had a well-founded fear that the RSA would return him to the DRC such that s 36(5) of the Act was enlivened.

20    The Federal Circuit Court found that the appellant’s grounds for review had no merit.

21    As to the first ground, the primary judge found that s 424A was not engaged because the information obtained from Post merely confirmed, and thus was the same as, information provided by the applicant during the visa application process: se J [26]: s 424A(3)(b) and (ba). Further, with respect to the stipulation on the face of the appellant’s permanent residence permit, at [28] the primary judge referred to a portion of the transcript of the hearing before the Tribunal to find that the appellant had an opportunity to address the potential lapsing of his status of permanent resident status that the Information from Post may have raised or to which it may be seen to be related:

The applicant had the opportunity to assert to the Tribunal at the time of the Tribunal hearing that the qualification to Note (v) was likely to disqualify him from maintaining his permanent residency status in the RSA, but he did not do so. The Transcript recorded that that question was raised with the applicant by the Tribunal member, but that the applicant failed to address the issue. The relevant exchange was as follows:

“01.26.21    Tribunal Member

So that's relevant because if your life is in danger in Congo, and if the South Africans were going to send you back, that would be relevant. But, but what this information tells me is that once they've accepted you are a refugee, they don't send people back.

01.26.59    Tribunal Member

When people come from Nigeria to South Africa illegally and they 'cause trouble and the police catch them, they may be sent back. But you're in a different situation - your status has been approved and you're a permanent resident.

01.27.38    Tribunal Member

So that's the first point I wanted to make. So how would you l ike to respond?

01.27.51    Applicant

Thank you for letting me talk. Effectively, South Africa has signed a United Nations agreement, yes. But they don't take into consideration what they have signed. In 2011 and 2012, Congolese refugees went on strike to be recognised as people to stop discrimination, to be respected. So, when you said, when you get the refugee status, you should be the same level as South African citizens, but that's not what happens. Because of this discrimination, you know, Congolese people are often killed. When you look back home in the Congo, that's a very serious situation that's happening there.

01.30.17    So, with our refugee status or residency status, Congolese are between a rock and a hard place in South Africa. And in 2012, when there were all these demonstrations from Congolese, from Congolese refugees, they went to embassy, nobody wanted to help them out, so they were kicked out. So, there was, in fact, a story in some Canadian newspaper which are enclosed in there, explaining how these Congolese refugees were actually deported.”

22     At [29], the primary judge considered that it was for the appellant to prove his claims and make clearly articulated arguments which emerged from the material before the Tribunal in support of his claims, but that the appellant failed to do so. At [30], the primary judge stated that there was no obligation upon the Tribunal to do more than it did when considering the appellant’s claims.

23    On the question whether the Tribunal erred by failing to consider whether the appellant’s right to enter and reside in the RSA was current and existing at the time of the Tribunal’s decision, the second ground, the primary judge held that there was no error. As with the first ground, it was held that the appellant failed to put the relevant material before the Tribunal, and failed to address the issue when it was put to him by the Tribunal in the course of the hearing, which was said to distinguish Suntharajah v Minister for Immigration and Multicultural Affairs [2001] FCA 1391.

24    At [33], the primary judge held that it cannot be said that the Tribunal failed to make an obvious inquiry about a critical fact. It was held that Tribunal was under no duty to make inquiries: the Tribunal was only required to consider those claims that were brought by the appellant.

25    As to the third ground, the primary judge at [36] found that the appellant did not claim that he would be prevented from maintaining his permanent residency status due to his absence from the RSA. It was further found that the appellant failed to produce any evidence of probable refoulement to the DRC if he was returned to the RSA. In such circumstances, it was held that the Tribunal did not have any clearly articulated claim before it which it had to address:

In circumstances where the applicant had asserted that he was a permanent resident of the RSA, and further in circumstances where the applicant did not at the time of the Tribunal hearing or beforehand claim that he would be prevented from maintaining his permanent residency status because of the time that he had been away from the RSA, or produce any evidence to the Tribunal of probable refoulement to the DRC if he was returned to the RSA, the Tribunal did not have any clearly articulated claim before it which it had to address. A Tribunal is only required to consider clearly articulated argument and claims which clearly emerged from the evidence.

26    On this basis, the primary judge held that there was no basis upon which it could be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. Nor, it was held, could the decision of the Tribunal be considered to be legally unreasonable or lacking in an intelligible jurisdiction. As such, the primary judge concluded that the appellant failed to establish jurisdictional error on the part of the Tribunal.

The grounds of appeal and the Minister’s notice of contention

27    There are four grounds of appeal. First, that the primary judge erred in finding that the Information from Post sought by the AAT from officials in the RSA was not information that would have been the reason, or part thereof, for affirming the decision under review. Accordingly, the appellant claims that the primary judge erred in not finding that the Tribunal had failed to afford the appellant procedural fairness in accordance with the requirements of s 424A of the Act.

28    Secondly, that the primary judge erred in finding that the purpose for which the Information from Post was sought by the Tribunal was relevant to the question of whether or not s 424A of the Act was engaged.

29    Thirdly, that the learned primary judge erred in his Honour’s consideration and application of s 36(3) of the Act, and in turn in not finding that the Tribunal had made an error of law in the application of that provision, insofar as it failed to consider whether the appellant’s right to enter and reside in the RSA was a current and existing right at the time of the decision.

30    Finally, that the primary judge erred, when considering s 36(3) of the Act, in finding that the Tribunal was only required to consider clearly articulated claims made by the appellant.

31    In his notice of contention, the Minister contended that the judgment below ought to be affirmed on three additional grounds, being as follows:

1.    The learned judge of the Federal Circuit Court concluded at [24]-[25] of his reasons that the information that was obtained from RSA Post indicated in part that the applicant was not a citizen of the RSA and that such information was not adverse to the interests of the applicant because the information enabled the Tribunal to find that s 91N of the Act did not apply. The Tribunal was thereby able to find that the application for a protection visa was valid and such information could not be considered as being information which would have been the reason, or part of the reason, for affirming the decision under review and that s 424A of the Act was not engaged.

2.    The learned judge also concluded at [26] of his reasons that the information that was obtained from RSA Post merely confirmed that the applicant was a permanent resident of RSA, something which the Tribunal already knew, and as such it could not be said that the information was the reason, or part of the reason, for affirming the decision under review (a reference to s 424A(1)(a)).

3.    The learned judge of the Federal Circuit Court should have concluded that:

3.1.    The applicant provided both the delegate and the Tribunal with information regarding his status as a permanent resident of RSA for the purposes of the application for review pursuant to s 424A(3)(b);

3.2.    the applicant was, in any event, given an express opportunity to comment on his status as a permanent resident of RSA in the course of the Tribunal hearing (see transcript extracts at [28] of the learned judge’s judgment); and

3.3.    as the information obtained from RSA Post merely confirmed the applicant was a permanent resident of RSA, any error could not be material.

32    As can be seen, each of the three grounds in the Minister’s notice of contention were primarily directed to grounds 1 and 2 of the appeal, although [3.2] and [3.3] were also said by the Minister to be an answer to grounds 3 and 4 of the appeal.

The appellant’s submissions

33    On the first and second grounds of appeal, the appellant submitted that his migration status was relevant to two matters that the Tribunal was required to consider, being: first, the validity of the application for a protection visa under ss 91N and 91P of the Act; and secondly, the eligibility for protection pursuant to s 36(3) of the Act. The appellant submitted that the Information from Post ought, pursuant to s 424A, to have been put to him as it was relevant both to the question of validity (under s 91P) and to the question of eligibility (under s 36(3)). The appellant submitted that the primary judge erred in concluding that the Information from Post was not information that was, or would have been, the reason, or part of the reason for affirming the decision under review, and that the appellant was therefore not denied procedural fairness by virtue of the failure of the Tribunal to put that information to him.

34    The appellant submitted that, upon receipt of the Information from Post and satisfying itself that the appellant was not a national of the RSA, the Tribunal was required to consider whether the appellant had a current and existing right to enter and reside in the RSA, pursuant to s 36(3). The Information from Post, it is submitted, was relevant to consideration of whether that right had lapsed. The appellant submitted that the purpose for which the Information from Post was obtained (being an inquiry pursuant to s 91N of the Act) was not relevant. In making this submission, the appellant relied on Suntharajah v Minister for Immigration and Multicultural Affairs [2001] FCA 1391 at [17], in which Gray J held that, in order to be satisfied that an applicant has a right to enter and reside in another country, it is necessary to first examine the nature of the visa and whether factors warranting its revocation exist: “A visa cannot be said to afford a right to enter and reside in a country if it is bound to be revoked as soon as its holder attempts to make use of it by entering the country”.

35    The appellant submitted that the currency of the right to enter and reside is a mandatory consideration with respect to the review obligations of the Tribunal pursuant to s 36(3) of the Act. Accordingly, it is submitted, the Information of Post was “information” within the meaning of s 424A(1), and ought to have been put to the appellant. This was so, it was said, notwithstanding that the Tribunal did not recognise that the Information from Post was relevant to, and should have been used in, its consideration of s 36(3) of the Act. The appellant further submitted that, in the event that the Information from Post is not considered to be adverse information, this is of no consequence: SZVCZ v Minister for Immigration and Border Protection [2017] FCAFC 130; 252 FCR 540 at 543 [14].

36    As to the third and fourth grounds of appeal, the appellant submitted that the Tribunal was called upon by s 36(3) to determine whether it was satisfied that the appellant had a current and existing right to enter and reside in the RSA at the time of the decision. The status of the appellant’s permanent residency therefore ought to have been a key consideration in the discharge of that statutory function. Accordingly, the appellant submitted that the status of his permanent residency was not a claim that he was required to put to the Tribunal in express terms. The findings of the primary judge to this effect, it was submitted, were made in error, and demonstrate a failure to appreciate the statutory task that the Tribunal was required to carry out in respect of s 36(3).

The Minister’s submissions

37    On ground one of the notice of appeal, the Minister submitted that Information from Post did no more than confirm the information provided by the appellant with respect to his permanent residency and refugee status in the RSA. The Minister submitted that the Information from Post indicated that the right to residence was extant, and that it therefore did not contain facts that were not already before the Tribunal, and accordingly did not enliven s 424A(1). The Minister further submitted that the Tribunal afforded the appellant an opportunity to comment on his residency status, and that the appellant did not put in issue the question of whether that status had since lapsed. In circumstances where the appellant was afforded an opportunity to address the very issue said to give rise to a denial of procedural fairness, there cannot be said to be any (material) practical injustice attaching to the procedure adopted on the review, it is submitted.

38    The Minister further submitted, with respect to grounds one and two, that Suntharajah did not assist the appellant insofar as an express claim was made in that case that the visa was liable to be cancelled. The Minister drew attention to the failure of the appellant to raise such a claim in this case.

39    The Minister further contended that the judgment below ought to be affirmed on other grounds, namely that, even if s 424A(3)(b) were not engaged, the appellant was provided with the opportunity to comment on his residency status and the Information from Post confirmed that the appellant was a permanent resident, such that, in the event of any procedural defect, it cannot be said that any such defect was material to the outcome. It is submitted that s 424A(3)(b) excludes from the application of s 424A “information […] that the applicant gave for the purpose of the application for review”. In circumstances where the appellant declared that he was a resident of the RSA, supported that claim with documentary information, and was provided with an opportunity to comment on that status, the Minister submitted that there can be no denial of natural justice, and that, in any event, any breach could not be said to be material insofar as the Information from Post was the same as that which had been supplied by the appellant. The Minister submits that ground two should be dismissed on the same basis.

40    As to the third and fourth grounds of appeal, the Minister submitted that the correct application of s 36(3) of the Act is identified by Buchanan J (with whom Tracey, Robertson and Griffiths JJ agreed) in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; 215 FCR 35. That is, the Minister submitted that while it might readily be accepted that the statutory task under s 36(3) requires a consideration by the decision-maker of the circumstances that bear upon a person’s right to enter and reside in another country, it is not the case that a decision-maker is required under s 36(3) to engage in successive inquiries on the speculative basis that current information may be liable to change in the future. It cannot be the case, it was submitted, that the Tribunal was then required to engage in another inquiry based upon speculation regarding the possible exercise of a discretion to which reference is made by the note on the face of the permanent residence permit: s 36(3) does not mandate this.

The statutory context

41    Section 36 of the Act sets out the requisite criteria which must be met in order for an applicant to be eligible for a protection visa:

36 Protection visas—criteria provided for by this Act

(1A)    An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)    at least one of the criteria in subsection (2).

(1B)    A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

(1C)    A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a)    is a danger to Australia’s security; or

(b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

Note: For paragraph (b), see section 5M.

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or

(b)    a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

(i)    is mentioned in paragraph (a); and

(ii)    holds a protection visa of the same class as that applied for by the applicant; or

(c)    a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

(i) is mentioned in paragraph (aa); and

(ii) holds a protection visa of the same class as that applied for by the applicant.

…

(3)    Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.

(4)    However, subsection (3) does not apply in relation to a country in respect of which:

(a)    the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

(b)    the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.

(5)    Subsection (3) does not apply in relation to a country if the non‑citizen has a well‑founded fear that:

(a)    the country will return the non‑citizen to another country; and

(b)    the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

(5A)    Also, subsection (3) does not apply in relation to a country if:

(a)    the non‑citizen has a well‑founded fear that the country will return the non‑citizen to another country; and

(b)    the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the other country.

42    Section 46 of the Act sets out the circumstances in which a visa application will be valid:

46 Valid visa application

Validity—general

(1)    Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:

…

(e)    it is not invalid under any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:

(i)    section 46AA (visa applications, and the grant of visas, for some Act‑based visas);

(ii)    section 46A (visa applications by unauthorised maritime arrivals);

(iii)    section 46B (visa applications by transitory persons);

(iv)    section 91E or 91G (CPA and safe third countries);

(v)    section 91K (temporary safe haven visas);

(vi)    section 91P (non‑citizens with access to protection from third countries).

43    Section 424A of the Act provides:

424A Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non‑disclosable information.

44    Finally, it is relevant to set out the terms of s 65(1):

(1)    Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a)    if satisfied that:

(i)    the health criteria for it (if any) have been satisfied; and

(ii)    the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)    the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)    any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)    if not so satisfied, is to refuse to grant the visa.

Consideration

45    As argument developed in oral address, Mr Ower QC, who appeared for the appellant, confirmed that grounds 3 and 4 of the appeal was the appellant’s “primary submission”. Indeed, Mr Ower QC accepted that if the appellant was unsuccessful on grounds 3 and 4, there was only a very limited respect in which grounds 1 and 2 could succeed, in large part due to the operation of s 424A(3)(b) of the Migration Act. It is therefore convenient to address grounds 3 and 4 of the notice of appeal first.

Grounds 3 and 4

46    The relevant question for the determination of grounds 3 and 4 as the argument developed, is whether the Tribunal erred in failing to consider the qualified nature of the appellant’s right of entry and right of residence in the RSA by reason of Note (v) on the face of his permanent residence permit. It is convenient to set out again Note (v):

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.

47    It is not contested that at the time the Tribunal made its decision (though not at the time the delegate made his or her decision), Note (v) was potentially engaged, the appellant having been absent from the RSA for more than three years. The real dispute was whether, in engaging in its statutory task under s 36(3), the Tribunal should have appreciated the qualified or defeasible nature of the appellant’s permanent residency status, despite the fragility or defeasibility of his permanent residence status having never been articulated or raised by the appellant as a “claim” before the Tribunal. The determination of this question requires careful attention to the Tribunal’s statutory task on review of the delegate’s decision referable to s 36(3).

48    As stated by Emmett J in NBLB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2005] FCA 1051 at [38], s 36(3) operates only as a qualification on the criterion for a protection visa under s 36(2). It has no independent operation. The qualification in s 36(3) deems Australia not to have protection obligations (subject to its own qualifications in sub-sections 36(4)–(5A)) where a visa applicant has a “right” to enter and reside in another country and has not taken all possible steps to avail himself or herself of that right.

49    Section 36(3) was introduced as part of amendments to the Act in 1999 for the stated purpose of preventing asylum seekers from “forum shopping”: see generally NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 60; 150 FCR 522. By deeming Australia not to have protection obligations in respect of certain visa applicants, it creates a form of statutory exception to s 36(2), which otherwise implements some of Australia’s non-refoulement obligations under international instruments: see DQU16 v Minister for Home Affairs [2021] HCA 10; 388 ALR 363 and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 at 61 [12].

50    A finding that s 36(3) applies to a visa applicant is as a finding of central importance in respect of a decision to grant or refuse a protection visa. If s 36(3) is found to apply, it relieves the decision-maker of his or her duty under ss 36, 47 and 65 of the Migration Act to consider all relevant claims and material before it in support of a valid protection visa application by reference to the criteria in s 36(2), and his or her duty under s 65 to grant a visa if satisfied of one of those relevant criteria in s 36(2) (subject to other exceptions or criteria denying the grant of a visa applying): see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [35]–[38] (Gummow and Hayne JJ). Instead, if s 36(3) applies, the decision-maker must only consider material and claims for protection relevant to ss 36(4)-(5A). In the circumstances of this case, the finding that s 36(3) applied relieved the Tribunal of its duty to consider claims of protection in respect of the DRC, because it was satisfied under s 36(5) that the RSA would not refoule the appellant to the DRC because of his permanent residence status (see [16] above, particular the Tribunal’s reasons at [113]–[115]).

51    The operation of s 36(3) requires the decision-maker to do two things. First, the decision-maker must make a finding of fact on the materials before it that the visa applicant has a “right” in the relevant sense to enter and reside in another country. Secondly, only after making a finding that such a right is in existence, the decision-maker must be satisfied, after considering the materials and any claims before it, that the visa applicant has not taken “all possible steps to avail himself or herself of that right”.

52    It is now settled that correct interpretation of a “right” to enter and reside under s 36(3) does not require the Tribunal to be satisfied that the visa applicant has a “legally enforceable right”: Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; 215 FCR 35. In SZHRU at 53 [79] and 54 [89], Buchanan J (with whom Tracey, Flick, Robertson and Griffiths JJ agreed) adopted the construction of “right” advanced in V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018; 114 FCR 408 at 419 [31] as follows:

… I see no reason to restrict the meaning of the word “right” to a right in the strict sense which is legally enforceable and which is found reflected in the positive law of the state in question or to exclude from the meaning the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of any particular enforcement, or to exclude from the meaning a liberty or permission or privilege which does not give rise to any particular duty upon the state in question. Such a liberty, permission or privilege would obtain its effective substance from its grant and thereafter from the lack of any withdrawal of it and from the lack of any existing prohibition or law contrary to its exercise, rather than from the existence within the positive law of the state in question of a correlative duty, justiciable and enforceable in law, to recognise the right.

(Emphasis added.)

53    The Full Court in SZRHU also confirmed that a “right to which” s 36(3) refers “cannot be equated to rights which accompany citizenship. Inevitably, the right is less certain or secure than that” (at 53 [77]).

54    In determining whether the appellant had a “right”, that is a “liberty or permission or privilege” to enter and reside in the RSA, the appellant contended the Tribunal had to be satisfied that the appellant had a “current and existing right at the time of the decision and not a past or lapsed right” to enter and reside in the RSA. The Minister did not challenge this proposition. Nor did the Minister suggest that it was relevant that the appellant did not take any steps to avail himself of this right during his three years of absence from the RSA during which Note (v) did not operate to make the appellant’s right potentially defeasible.

55    If the Minister had made such a submission, it would have raised a number of issues. First and foremost, does s 36(3) apply only where a current “right” to enter and reside exists, irrespective of whether a past “right” which had existed at the time of making the visa application had lapsed or become potentially defeasible? If the answer to this was “no”, a number of ancillary questions would arise. To what standard would the decision-maker had to have been satisfied that a visa applicant had failed to prevent a pre-existing right to enter and reside from lapsing or becoming defeasible? Would it be synonymous with the “all possible steps” criterion specified in s 36(3)? Would the knowledge of the visa applicant, or carelessness or recklessness with respect to, the risk of the right lapsing or becoming defeasible be relevant? Would the fact that a visa applicant held a genuine fear of harm in the country where they held such a right, or a fear of being refouled to a third country be relevant, even where that fear was held to be unfounded or unreasonable? These ancillary questions would raise matters of fact which are most appropriately dealt with by the Tribunal.

56    Given the Minister’s position, it is unnecessary to say anything further on this matter.

57    Much of the debate in oral argument centred around the application of NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 and AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503. In short, that debate was whether the potential defeasibility of the appellant’s right because of Note (v) was a claim or issue “clearly emerging” or “clearly and squarely raised” on the materials before the Tribunal, of which a failure to consider could give rise to jurisdictional error: see the authorities summarised at AYY17 at 509–511 [18].

58    The appellant in particular relied upon the following passage from NABE at 20 [63]:

It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.

(Emphasis added.)

59    In contrast, whilst the Minister accepted that the defeasibility of the appellant’s right to enter and reside in the RSA was not a “claim” in the relevant sense, he contended that Note (v) merely fell into a category of issue that “might be said to arise from the materials”, and therefore any failure of the Tribunal to consider Note (v) was not jurisdictional: NABE at 22 [68] and AYY17 at 510 [18], fourth bullet point, paragraph (b). The Minister’s submissions emphasised that the Tribunal was not required to engage in “mere speculation” as to the qualified or defeasible nature of the appellant’s right to enter and reside in RSA due to Note (v). Nor did s 36(3) require the Tribunal “to engage in successive inquiries on the speculative basis that current information might change in the future”, in addition to its inquiries and information received from the Information from Post that the appellant’s permanent residence permit was extant.

60    With respect, while NABE and AYY17 are of assistance, neither is directly in point, focusing as they both do on the nature of “claims” for protection with reference to s 36(2) in support of a protection visa application. A proper understanding of the Tribunal’s task under s 36(3) is that the non-existence or qualified nature of a right to enter and reside in another country was not a “claim” that the appellant had to make. As I have emphasised, s 36(3) operates as a qualification on a visa applicant’s right to make claims for protection under s 36(2), by deeming that Australia does not owe protection obligations in respect of certain visa applicants (subject to the qualifications in s 36(4)–(5A)). The operation of s 36(3) denies the appellant’s right to apply for a protection visa by reference to the criterion of protection which implements some of Australia’s international non-refoulement obligations in s 36(2), save to the limited extent provided for in s 36(4)–(5A). The failure of the applicant to point out the defeasibility of his right to enter the RSA did not obviate the obligation on the Tribunal to make a finding of fact on the materials before it that such a right was currently in existence and not immediately defeasible on return to the RSA. The application of s 36(3) was a matter of central importance to the decision it was to make, guiding the applicable criterion upon which the appellant’s right to a protection visa hinged.

61    I respectfully adopt Flick J’s summary of relevant principles in Kasupene v Minister for Immigration and Citzenship [2008] FCA 1609; 49 AAR 77 at 82–84 [17]–[20] relying as Flick J did, amongst other authorities, upon the decision of the Full Court in Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 344 as directly applicable to the Tribunal’s task, particularly in the present case where the appellant was unrepresented before the Tribunal:

[17] In determining the “correct or preferable” decision, the Tribunal will ordinarily be best “guided by the parties” in identifying the issues: Sullivan v Department of Transport at 342. See also: A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 at [36] per Katz J; NADB v Minister for Immigration and Multicultural Affairs (2002) 34 AAR 446 at [21] per Hely J. Deane J, with whom Fisher J agreed, further observed in Sullivan however that “[c]ircumstances may … arise in which … a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute”: Sullivan at 342. It is “the duty of the Tribunal”, it has been said, “to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made”: Drake v Minister for Immigration and Ethnic Affairs at 429-430. Before the Tribunal there is no requirement that “the point be taken”: Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 54 FLR 335 at 348 per Fox J.

[18] In determining the “correct or preferable” decision the Tribunal must also be satisfied that there is “enough material” before it on a matter of central importance to the decision to be reached (Kuswardana v Minister for Immigration and Ethnic Affairs at 343 per Bowen CJ). And “[t]he tribunal [is] required to make the correct or preferable decision on the material before it, regardless of the form which the parties’ submissions [take]”: McKeown v Repatriation Commission (1995) 22 AAR 229 at 232 per Jenkinson J. An error of law may be committed if the Tribunal ignores a central issue, even if no submission at all is directed to it: Australian Trade Commission v F & F Asia Pty Ltd (1996) 69 FCR 252 at 266 per Carr J. See also: Transport Accident Commission (Vic) v Bausch [1998] 4 VR 249 at 263 per Tadgell JA (Batt and Buchanan JJA agreeing).

[19] Where one of the parties before the Tribunal is unrepresented, as in the present proceeding, the Tribunal is thus not absolved from itself considering the state of the evidence before it when determining the “correct or preferable” decision. The fact that an unrepresented party may not have advanced evidence peculiarly within his control and of central relevance to the decision to be made, nor made a submission in respect to such material as is before the Tribunal, may make the task of the Tribunal more difficult. In the case of an unrepresented party, the Tribunal will frequently not have the benefit of any “guidance” being provided by that party. But the task of the Tribunal remains the same. Not to be ignored is the obligation now imposed upon the person who made the decision to “use his or her best endeavours to assist the tribunal to make its decision in relation to the proceeding”: Administrative Appeals Tribunal Act, s 33(1AA). The less important the available evidence or an available submission may be, the lesser may be the necessity for either the Tribunal or a respondent to address the issue. The more important and the more centrally relevant available evidence or an available submission may be to the decision to be made, the greater may be the necessity for the issue to be addressed and resolved – even if not otherwise addressed by an unrepresented party. Where the line is to be drawn will obviously depend upon all of the circumstances of an individual case.

[20] But it is not a line to be drawn so as to impose upon the Tribunal any general duty to itself secure evidence which has not been otherwise adduced or any general duty to pursue submissions not otherwise advanced. The need to inquire into facts not otherwise before the Tribunal may not be confined to those facts going to jurisdiction, as in Kuswardana; but should be confined to facts of central importance to the decision to be made: cf Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155. And the need to consider submissions or issues not raised by the parties may equally normally be confined to those submissions which are submissions of substance which emerge from the factual material before the Tribunal: cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1. It was said there that a “judgment that the Tribunal has failed to consider a claim not expressly advanced is … not lightly to be made. The claim must emerge clearly from the materials before the Tribunal”: at [68]. See also: SZITR v Minister for Immigration and Multicultural Affairs (2006) 44 AAR 382 at [50] per Moore J; MZXMG v Minister for Immigration and Citizenship [2007] FCA 1884 at [13]-[14] per Middleton J. In MZXLB v Minister for Immigration and Citizenship [2007] FCA 1588 at [14] Finkelstein J referred to NABE and observed that there “is no precise standard for determining when an issue is ‘raised squarely’, but it is clear the tribunal is obliged to consider any claim that is apparent on the face of the material before it”.

(Emphasis added.)

62    Similar observations in the context of legal practitioners failing to raise issues of fact or law were made by Bromwich and Wheelahan JJ in Hong v Minister for Immigration and Border Protection [2019] FCAFC 55; 269 FCR 47 at 65 [66] with respect to s 501CA of the Act, who stated that:

… a failure by the parties’ legal practitioners to raise issues of fact or law that are central to the Tribunal’s exercise of jurisdiction may not preclude the consideration on appeal or on judicial review of an error, at least on a central issue, that was induced by the parties’ submissions.

63    The existence of a right to enter and reside in the RSA, and whether that right was qualified or defeasible, was a matter of “central importance” to the appellant’s visa application by reference to s 36(3): Kasupene at 82–84 [17]–[20] and the authorities referred to therein. The fact that the appellant appears to have proceeded on the assumption that he retained an unqualified right to enter and reside in the RSA, and the Tribunal in part acted on that assumption, is irrelevant to the determination of the appeal. Contrary to the Minister’s submissions, the true position is that Tribunal, standing in the shoes of the delegate, had to make a finding of fact on the material before it, independently of how claims or material were put forward by the self-represented appellant, that he had a “right” to enter and reside in the RSA.

64    In the context of visas or permits which are the source of the alleged right, the following statement by Gray J in Suntharajah v Minister for Immigration and Multicultural Affairs [2001] FCA 1391 at [17] (applying Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332; 116 FCR 154 at 170–171 [59]) is directly apposite:

In my view, before it is possible to be satisfied that a person has a right to enter and reside in another country, where the possession of a current visa is the right asserted, it is necessary to examine the nature of that visa, the circumstances in which it was granted and whether the factors warranting its revocation exist. A visa cannot be said to afford a right to enter and reside in a country if it is bound to be revoked as soon as its holder attempts to make use of it by entering the country.

(Emphasis added.)

65    At [19], Gray J concluded that the Tribunal in that case had made an error of law, for failing to consider the possibility that the applicant’s student visa would be cancelled if he returned:

If, on arrival, his visa was bound to be cancelled, it could not be said that the visa constituted a right to enter and reside. Before it could come to the conclusion that the applicant had a right to enter and reside in the UK, the Tribunal was bound to resolve that question. In failing to deal with the applicant’s case that his visa was likely to be cancelled on arrival, the Tribunal therefore made an error of law.

66    At the time of the Tribunal’s decision, the potential defeasibility of the appellant’s permanent residence permit was apparent on the face of that permit: the appellant, having being absent from RSA for more than three years, was at risk of losing his right to permanent residence. Note (v) did not suggest that the permanent residence permit was bound to be revoked if the appellant attempted to re-enter the RSA, but it plainly raised a risk of being so revoked. It was not open on the material before the Tribunal to make a finding that the appellant had an unqualified right to enter and reside in the RSA. There was no information before the Tribunal that the discretion to withdraw the permanent residence permit made apparent by Note (v) could not be exercised immediately in respect of the appellant if he attempted to re-enter the RSA. At its highest, the material before the Tribunal could only support a finding of a right of entry with discretionary defeasibility and vulnerability making it potentially entirely ineffective. A brief review of the RSA’s Immigration Act 2002, which I discuss below in the context of materiality, demonstrates the significant extent of this defeasibility and vulnerability.

67    Given the procedural history and the way the review was run, it is perhaps understandable that the Tribunal did not address this matter in detail. The appellant conceded the application of s 36(3) before the delegate. The appellant did not directly raise the application of Note (v) on his permanent residence permit by the time the matter reached the Tribunal, by which time Note (v) could be seen to be potentially engaged. I accept this is a distinguishing feature from Suntharajah, where the defeasibility of the student visa was “asserted” by the applicant. That being said, the failure of the self-represented appellant to raise this critical issue did not derogate from the Tribunal’s statutory task under s 36(3). Where a “right” to enter and reside depends on a visa or permit which is before the Tribunal, the Tribunal necessarily must consider any factors apparent on the face of that visa or permit which speak to its defeasance or defeasability. With proper regard to Note (v), it was legally unreasonable for the Tribunal to make a finding that the appellant’s permanent residence permit would or could not be revoked if he attempted to return to the RSA. The Information from Post, which will be discussed in the context of ground 3.3 of the Minister’s notice of contention below, does not change that position.

68    Grounds 3 and 4 of the appeal must therefore be upheld, subject to the Minister’s notice of contention and the question of materiality.

The Minister’s notice of contention and materiality

69    As noted above, only sub-grounds 3.2 and 3.3 of the Minister’s notice of contention were said to be an answer to grounds 3 and 4 of the appeal. These sub-grounds of the notice of contention as applied to grounds 3 and 4 of the appeal were only relevant to the question of materiality.

70    As to sub-ground 3.2 of the notice of contention, the Minister sought to adopt the primary judge’s analysis at J [28]. At J [28], the primary judge relied upon a portion of the Tribunal hearing transcript to suggest that the appellant “had an opportunity to assert” that Note (v) was likely to disqualify him from relying upon the permanent residence permit, but that he “failed to address the issue”. This was said to deny the appellant any right to relief in respect of the Tribunal’s failure to consider the impact of Note (v) on the appellant’s right to enter and reside in the RSA. For the reasons expressed above, I reject the premise that the appellant was required to “assert” that he no longer held an indefeasible right to enter the RSA due to Note (v). The Tribunal was required to make a positive finding of the current existence of a right to enter and reside in s 36(3), which it could not have done so, at least not in unqualified terms and without further investigation, given the express condition imposed by Note (v).

71    In any event, that portion of the transcript referred to (see [21] above) was in the context of the Tribunal member asking the appellant questions about his potential refoulement to the DRC if he returned to the RSA, not the status of his permanent residence permit. The appellant was not asked to respond to his permanent resident status: the appellant was asked to respond to the RSA’s treatment of people with refugee status. Indeed, almost immediately prior to the quoted section, the Tribunal framed its line of enquiry as follows:

1.24.53     Tribunal Member

Okay. [pause] You were granted refugee protection in South Africa. In South Africa, it's a signatory to many international agreements and that suggests that they wouldn't send you back to Congo.

1.25.37     So the delegate in its decision looked at information, country information published about South Africa's human rights record in relation to refoulement. In French, it's refoulement or... when you send somebody back?

72    Sub-ground 3.2 of the notice of contention cannot be sustained in response to grounds 3 and 4 of the appeal.

73    As to sub-ground 3.3 of the notice of contention, the Minister argued that the Tribunal was entitled to be satisfied that right to enter and reside in RSA conferred by the permanent residence permit remained “extant” due to the Information from Post. Therefore, any error in failing to consider the qualified nature of the appellant’s right under the permanent residence permit due to Note (v) was immaterial.

74    While this contention has some force, the better view is that, having before it contradictory positions which emerge from the conditions on the appellant’s permanent residence permit and the Information from Post, the Tribunal could not have found that the appellant had a currently-existing right which would not have been immediately defeasible if he attempted to re-enter the RSA. The fact that the RSA authorities advised that the appellant was a “permanent residence holder” did not inform the Tribunal whether that permit would or could be withdrawn if the appellant sought to re-enter the RSA. This is particularly so where the email chain in the Information from Post noted that getting relevant information from the RSA authorities was “incredibly difficult”. The Tribunal could not have made a finding, without further investigation, that the right conferred on the appellant by the permanent resident permit was of a sufficient status or certainty or of such an unqualified kind as to proceed on the basis that s 36(3) applied to the appellant in conducting its review.

75    This is particularly so when regard is had to the RSA’s Immigration Act 2002 (which was annexed to the affidavit of Ms Debra Maria Mercurio sworn 30 September 2020 and before the primary judge), pursuant to which the permanent residence permit was expressed to be issued. Section 25(3) of the Immigration Act provided that a permanent residence permit is “subject to section 28”. Section 28 was headed “Withdrawal of permanent residence permit”. Relevantly for this appeal, paragraph (c) of s 28 provided that the Director-General may withdraw a permanent residence permit if its holder “has been absent from the Republic for more than three years”, provided that (in accordance with sub-paragraph (i)) “upon showing good cause and upon prior application the Director-General may extend this period in specific cases”. There are other exceptions which do not apply.

76    Whilst it may be noted that s 28(c) is expressed in terms of a discretion, it clearly corresponds with Note (v) on the appellant’s permit, and empowers the Director-General to cancel the appellant’s permit due to his absence from the RSA for more than three years. There are no other criteria governing the exercise of the power to withdraw the permit. While the appellant may have had a right to apply for an extension of the permissible time period of absence from the RSA, this appears to have now lapsed, as a “prior application” was required before the three year period elapsed, and further “good cause” would have to been shown (there was no evidence as to what could constitute a “good cause” under the Immigration Act).

77    Thus, whilst the Information from Post may have confirmed that the appellant was a permanent residence permit holder, it was not sufficient to overcome the apparent defeasibility of the permit by reasons of Note (v), and an apparent significant risk that it might have been withdrawn if the appellant attempted to return to the RSA. Sub-ground 3.3 of the notice of contention must be rejected.

78    As to other considerations of materiality for grounds 3 and 4, the potential defeasibility of the appellant’s right to enter and reside in the RSA was critical to the Tribunal’s statutory task under s 36 and the application of s 36(3). The Tribunal’s findings that the appellant did not face a well-founded fear of being forcibly returned to the DRC (see [16] above) was in large part based on its finding that the appellant had an unqualified right to enter and reside in the RSA as a permanent resident with refugee status. Indeed, because of the application of s 36(3), the Tribunal focused much of its attention to whether the appellant would face Convention-based persecution or would suffer significant harm in the RSA, as opposed to the DRC. Even if the potential defeasibility of the permanent resident permit was not such to disengage the application of s 36(3), it was certainly a relevant and material consideration for the analysis of his safety due to potential refoulement to the DRC.

79    I am therefore satisfied the failure the Tribunal’s finding that the appellant had an unqualified right to enter and reside in the RSA in the context of s 36(3) was unreasonable and not open on the materials before it, and that such an error was “material” in the relevant sense and thus a jurisdictional error: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590.

Grounds 1 and 2

80    Given my conclusion as to grounds 3 and 4, it is unnecessary to deal with grounds 1 and 2, which the appellant acknowledged was his alternative or secondary argument. This also means that it is unnecessary to consider the Minister’s notice of contention as an answer to those grounds.

81    However, it is relevant to note that the transcript of the hearing before the Tribunal confirms that the appellant proceeded on the assumption, as did the Tribunal, that he was the holder of a permanent residence permit. It was the appellant who placed the information concerning the permanent residence permit before the decision-maker. It is therefore apparent that s 424A(3)(b) of the Migration Act would likely disengage any obligation on the Tribunal to disclose the Information from Post to the appellant.

82    This only serves to highlight that the Tribunal clearly failed to engage with the defeasibility of the appellant’s right to enter the RSA which was apparent on the face of the permit.

Conclusion

83    For these reasons, the appeal should be allowed. The orders of the Federal Circuit Court should be set aside and in lieu thereof orders made that the Amended Application for Review filed on 30 September 2020 should be upheld. The Tribunal’s decision dated 13 December 2018 should be set aside and the appellant’s application for review remitted to the Tribunal for determination according to law. Orders should also be made for the Minister to pay appellant’s costs of the appeal as well as the costs of the hearing before the primary judge, as agreed or taxed.

Associate:

Dated:    22 June 2022