1708278 (Refugee)

This matter concerned an application for a protection visa by a citizen of China. The applicant had departed Australia in July 2019 and had not returned. The Administrative Appeals Tribunal (the Tribunal) reviewed a decision not to grant the applicant a protection visa.

The primary legal issue before the Tribunal was whether the applicant met the criterion for a protection visa that they must be a non-citizen in Australia, as stipulated by section 36(2) of the Act. A further issue arose regarding the Tribunal's obligation to invite the applicant to appear before it under section 425(1) of the Act, and whether this obligation was excused by the applicant's failure to respond to a request for information.

The Tribunal considered department movement records which indicated the applicant had left Australia in July 2019 and had not returned. Pursuant to section 424A of the Act, the Tribunal notified the applicant via email of this information, explaining its relevance to the visa application and inviting a written response or request for an extension by 2 December 2019. The applicant failed to provide any response or request an extension. The Tribunal determined that, as the applicant had been invited to comment on information under section 424A and had not responded, the exception under section 425(2)(c) applied, excusing the Tribunal from the requirement to invite the applicant to appear. Consequently, the Tribunal found that the applicant did not satisfy the criterion of being in Australia, and therefore could not be granted a protection visa.

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