2110331 (Refugee) - [2024] ARTA 482

2110331 (REFUGEE) [2024] ARTA 482 (30 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Home Affairs
Tribunal Number:  2110331

Tribunal:General Member A. Faram
Place:Melbourne
Date: 30 October 2024
Decision:The Tribunal affirms the decision not to grant the Applicant a protection visa.

Statement made on 30 October 2024 at 11:01am

CATCHWORDS
REFUGEE – protection visa – Malaysia – applicant left Australia – no response to tribunal’s communications or appearance at hearing – not necessary to further consider applicant’s case – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65(1), 36(2), 359A, 418(3)
Administrative Review Tribunal Act 2024 (Cth), ss 9, 106(1), (5)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 August 2021 to refuse to grant the visa Applicant a Protection (Class XA) Subclass 866 visa under s 65 of the Migration Act 1958 (Cth) (the Act). The Applicant, who claims to be a citizen of Malaysia, applied for the visa on 17 May 2021.
On 11 August 2021, the Applicant applied to the Administrative Appeals Tribunal (AAT) for merits review of the delegate’s decision.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 29 July 2024, the Applicant was invited to complete a pre-hearing information form. No response was received.
On 1 October 2024, the Applicant was invited to appear at a hearing to give evidence and present arguments relating to the issues arising in her case. She was asked to return the Response to Hearing Invitation form by 15 October 2024. No response was received.
On 11 October 2024, a movement record check was conducted by a Tribunal officer and it was noted that the record indicated the Applicant had departed Australia [in] October 2024.
On 18 October 2024, the Tribunal wrote to the Applicant noting they may have been offshore and inviting them to advise the Tribunal, as soon as possible, if they wanted to appear before the Tribunal remotely. No response was received.
On 15 October 2024 and 21 October 2024, the Tribunal sent SMS reminders about the hearing to the Applicant. Records indicate that delivery of those messages failed.
The Applicant failed to appear at the Tribunal on the day and at the scheduled time and place of the hearing. Nor did they contact the Tribunal by or on the day of the hearing, seeking to appear at the Tribunal remotely. Having reviewed all the material before it, the Tribunal is satisfied the Applicant received appropriate notice of the date, time and place of the hearing and was properly invited to the hearing in accordance with both the statutory procedure in effect at that time as well as the statutory procedure applicable to the Tribunal.
On 22 October 2024, the Tribunal wrote to the Applicant pursuant to s 359A advising that information before it indicates she is not in Australia and that, if she was not in Australia, she could not be granted a protection visa. The Applicant was invited to comment on the information by 29 October 2024. No response was received.
Sections 106(1) and 106(5) of the Administrative Review Tribunal Act 2024 (the ART Act) set out that if an applicant fails to appear at a hearing, and the Tribunal is satisfied they received appropriate notice of the hearing, the Tribunal can proceed to make a decision if it appears the issues for determination can be adequately determined in the absence of the applicant.
The Tribunal has decided in this matter that, rather than dismissing the application or inviting the Applicant to a further case event, it will exercise its discretion to reach a decision without a hearing having taken place. In doing so, the Tribunal has reviewed the material before it, including material provided to the AAT by the Applicant and those documents given to the AAT by the Secretary of the Department of Home Affairs for the purposes of the review pursuant to s 418(3) of the Act.[1] The Tribunal has also considered the Applicant's record of engagement with the primary and merits review processes and the fact that the review application relates to a protection visa, the primary mechanism by which Australia assesses protection status to ensure compliance with its international non-refoulement protection obligations.
[1] In force at that time.
The Tribunal has also had regard to the Tribunal's statutory objectives in s 9 of the ART Act and to Item 24 of the Transitional Act that requires the Tribunal to continue and finalise proceedings before it in a manner that is efficient and fair and that has regard to the effect of changes to the statutory regime.[2] To this end, the Tribunal notes that before exercising the discretion under 106(5) of the ART Act, it must appear to the Tribunal that the issues for determination can be adequately determined in the absence of the applicant. The Tribunal considers that it can adequately determine the issues in this matter.
[2] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (No. 38, 2024), Schedule 16, Part 5, Item 24.
For the following reasons, the Tribunal has decided to affirm the decision under review.
Under s 65(1) of the Act, a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.
So far as is relevant to this matter, s 36(2) of the Act provides that a criterion for a protection visa is that the Applicant for the visa is a non-citizen in Australia. This means that a person who is not in Australia at the time of the Tribunal’s decision does not meet the criteria for a protection visa.
Movement records before the Tribunal indicate that the Applicant left Australia [in] October 2024 as the holder of Bridging visa C. This information indicates the Applicant is outside of Australia and that, at the time of her departure, she did not hold a visa that would allow her to return to Australia. The Applicant did not respond to the Tribunal’s letter of 22 October 2024, which invited her to comment on this information and explained the visa criteria with respect to presence in Australia. The SMS hearing reminders to her phone number also failed.
The Tribunal is satisfied from the circumstances set out above that the Applicant is not in Australia. The Applicant, therefore, does not satisfy a key requirement of s 36(2) and cannot be granted a protection visa.
Having reached this conclusion, it is not necessary to further consider the Applicant's case for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the Applicant a protection visa.
Hearing: 22 October 2024