Federal Court. Did the failure of the applicant to point out the defeasibility, pursuant to s 36(3) of the Migration Act 1958 (Cth), of his right to enter the Republic of South Africa (RSA) "obviate the obligation on the decision-maker 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"?
Section 36(3) of the Migration Act 1958 (Cth) provided as follows:
(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.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Does s 36(3) of the Migration Act 1958 (Cth) operate only as a qualification on the criterion for a protection visa under s 36(2)? In other words, can it be said that s 36(3) has no independent operation?
Question 2: Can it be said that,"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)"?
Question 3: Does s 36(3) require decision makers to "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" before determining whether an applicant has taken "all possible steps to avail himself or herself of that right"?
Question 4: Does the correct interpretation of a “right” to enter and reside under s 36(3) require the decision-maker to be satisfied that the visa applicant has a “legally enforceable right”?
Question 5: Was it "relevant that the appellant did not take any steps to avail himself of this right" in the past?
Question 6: Can it be said that "the failure of the applicant to point out the defeasibility of his right to enter the RSA [Republic of South Africa] 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"?
Question 7: Can it be said that "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"?
The FCA answered those questions as follows: