1822291 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from China. The applicant had departed Australia, and the Tribunal had invited them to comment on information suggesting they were no longer in the country.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement under section 36(2) of the Migration Act 1958 (Cth) that the applicant be a non-citizen in Australia. The Tribunal also had to consider whether to exercise its discretion to invite the applicant to a hearing, given their failure to respond to the invitation to comment.

The Tribunal reasoned that movement records indicated the applicant had left Australia in November 2023. Despite inviting the applicant to respond to this information by 2 April 2024, no response was received. The Tribunal concluded that, as the applicant was not in Australia, they could not satisfy the criterion under section 36(2) of the Act. Consequently, the Tribunal determined it was unnecessary to consider the substantive grounds for the protection visa claim and decided not to exercise its discretion to invite the applicant to a hearing.

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