1517519 (Refugee)

This matter concerned an application for Protection visas by a primary applicant and a secondary applicant, who was a member of the same family unit. The dispute arose because the primary applicant had departed Australia, and the secondary applicant had not made any protection claims in his own right. The decision was made by the Tribunal.

The legal issues before the Tribunal were whether the primary applicant met the criteria for a Protection visa, and consequently, whether the secondary applicant met the criteria for a Protection visa as a member of the same family unit. Specifically, the Tribunal had to determine if the applicants satisfied the requirements of section 36(2) of the Act, which mandates that an applicant for a Protection visa must be in Australia.

The Tribunal reasoned that a Protection visa can only be granted to an applicant who is in Australia. Evidence indicated that the primary applicant had left Australia in January 2017 and had not responded to the Tribunal's invitation to comment on this fact. As the primary applicant was not in Australia, she could not satisfy the criteria for a Protection visa. For a secondary applicant to be granted a Protection visa, the primary applicant must hold a Protection visa. Since the primary applicant could not be granted a Protection visa, the secondary applicant also could not satisfy the criteria. The Tribunal considered the secondary applicant's response, which expressed a fear of unfair treatment in China and a desire to remain in Australia, but concluded it did not constitute a formal claim for protection as it lacked specific grounds for fearing harm.

The Tribunal affirmed the decisions not to grant the Protection visas to either applicant.