2014158 (Refugee)

The Administrative Appeals Tribunal considered a protection visa application made by an applicant from the Philippines. The dispute arose because movement records indicated the applicant had departed Australia and did not hold a visa permitting their return. The Tribunal had invited the applicant to comment on this information, but no response was received.

The primary legal issue before the Tribunal was whether it could make a decision on the review without inviting the applicant to a hearing, and consequently, whether the applicant met the criteria for a protection visa. Specifically, the Tribunal had to determine if the applicant was an "in Australia" non-citizen, as required by section 36(2) of the relevant Act for the grant of a protection visa.

The Tribunal reasoned that under section 424A of the Act, it had the discretion to make a decision without inviting an applicant to a hearing if the applicant failed to respond to an invitation to comment within the prescribed period. Given that the applicant had departed Australia and did not hold a return visa, they were not physically in Australia. As a result, they could not satisfy the criterion of being a non-citizen in Australia, rendering it unnecessary to consider the substantive grounds of their protection claim.

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