1923582 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who was not in Australia. The dispute arose because the applicant's location outside of Australia meant they could not satisfy a key criterion for the visa.

The primary legal issue before the Tribunal was whether the applicant met the prescribed criteria for a protection visa, specifically the requirement that the applicant be a non-citizen in Australia. The Tribunal also had to determine whether it was appropriate to make a decision on the review without inviting the applicant to a hearing, given the applicant's failure to respond to a request for information.

The Tribunal reasoned that under section 36(2) of the relevant Act, a protection visa can only be granted if the applicant is in Australia. Movement records indicated the applicant had departed Australia and had not held a visa allowing their return. Despite an invitation under section 424A to comment on this information, the applicant, through an intermediary, indicated they could not be contacted. As the applicant failed to respond within the prescribed period, the Tribunal concluded it was appropriate to proceed without a hearing. The Tribunal found that the applicant was not in Australia and therefore did not satisfy the criterion under section 36(2), making it unnecessary to consider the substantive grounds for the protection claim.

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