2304902 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from China. The dispute arose because movement records indicated the applicant had left Australia, which would preclude them from satisfying a key criterion for a protection visa.

The primary legal issue before the Tribunal was whether it could make a decision on the review without inviting the applicant to a hearing, given that the applicant had not responded to an invitation to comment on information suggesting they were no longer in Australia. The Tribunal also had to determine if the applicant met the criteria for a protection visa, specifically the requirement of being a non-citizen in Australia.

The Tribunal reasoned that under section 65(1) of the Act, a visa can only be granted if the prescribed criteria are satisfied, and section 36(2) requires an applicant for a protection visa to be in Australia. As movement records showed the applicant had left Australia in October 2023, they did not meet this criterion. The Tribunal had invited the applicant to comment on this information under section 424A of the Act, but received no response. Consequently, the Tribunal concluded it was appropriate to make a decision without inviting the applicant to a hearing and that it was unnecessary to consider the substantive grounds of the protection claim.

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