1714436 (Refugee)

This matter concerned an application for review of a delegate of the Minister for Immigration and Border Protection's decision to refuse the applicant a protection visa. The applicant, a citizen of Malaysia, arrived in Australia in December 2016 and applied for a protection visa shortly thereafter. The delegate refused the visa in June 2017, and the applicant sought review by the Tribunal. Crucially, the applicant departed Australia in March 2021.

The primary legal issue before the Tribunal was whether it had fulfilled its procedural obligations to the applicant, particularly concerning invitations to a hearing, despite the applicant no longer being in Australia. The Tribunal was required to determine if it had correctly applied sections 424A and 425(1) of the *Migration Act 1958* (Cth) and regulation 4.35D(3), and whether it was empowered to make a decision under section 436A(1A)(a) of the Act.

The Tribunal reasoned that while the applicant's departure from Australia meant they could not be granted a protection visa, it still retained an obligation to invite the applicant to a hearing under section 425(1). The Tribunal issued a section 424A notice, to which the applicant responded, indicating personal reasons for needing to return to Malaysia. Subsequently, the Tribunal issued a hearing invitation for 23 June 2021, which was a shorter notice period than prescribed but permissible under regulation 4.35D(3). When the applicant did not respond to this invitation, the Tribunal issued a further invitation with the full statutory notice period for a telephone hearing on 6 July 2021, providing the applicant's contact number and requesting confirmation. No response was received. On the scheduled date, the Tribunal telephoned the provided number, and a person other than the applicant answered.

Consequently, the Tribunal found that the applicant had failed to appear at the hearing and was empowered to make a decision without further steps under section 436A(1A)(a) of the Act. The Tribunal affirmed the delegate's decision not to grant the applicant a protection visa.