1704153 (Refugee)

This matter concerned an application for review of a decision not to grant a protection visa to an applicant from China. The applicant had left Australia in September 2018. The Administrative Appeals Tribunal, constituted by Member Mila Foster, was required to determine whether the applicant met the criteria for a protection visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen in Australia, as stipulated by section 36(2) of the relevant Act. This criterion is a prerequisite for the grant of a protection visa under section 65(1) of the Act.

The Tribunal considered movement records which indicated the applicant was no longer in Australia. The Tribunal had notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia, and therefore did not meet the criterion under section 36(2). The Tribunal noted that a purported section 438 non-disclosure certificate was invalid as the stated reason for public interest immunity was insufficient and the information was not material to the question of the applicant's presence in Australia. As the applicant did not satisfy this fundamental criterion, it was unnecessary to consider the substantive claims for the protection visa.

The Tribunal affirmed the decision not to grant the applicant a protection visa.