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

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– where information sought confirmed permanent resident status – where permanent residence permit liable to be rescinded following prolonged absence – s 36(3) of the Migration Act 1958 (Cth) – whether right to enter and reside lapsed – whether currency of right to enter and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