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austlii:cth/RRTA/1998/4432
defendant. The Tribunal affirms the decision not to grant a protection visa.
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The Refugee Review Tribunal dismissed a protection visa application because the applicant was not in Australia when the decision was made. Under section 36(2) of the Migration Act 1958, a person must be physically present in Australia to be granted a protection visa. The applicant had left Australia in 1994 and did not respond to the Tribunal's invitation to correct the record about his whereabouts. Because the applicant failed to meet this basic requirement, the Tribunal did not need to consider whether he was actually a refugee.
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Decision: The Tribunal affirms the decision not to grant a protection visa.
Catchwords: Applicant not in Australia at time of decision
The applicant, who is a citizen of China, arrived in Australia in 1990. On 31 August 1990 he applied to the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 (the Act). On 8 November 1993 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa and on 7 December 1993 the applicant sought review of the delegate's decision by this Tribunal.
No issue arises in this case as to the validity of the application for review or as to the Tribunal's jurisdiction to review the delegate's decision.
The department's movements records indicate that the applicant is not in Australia. It appears that he has been outside Australia since 1994. On 2 September 1998 the Tribunal wrote to the applicant advising that its records showed that he was not in Australia and therefore could not be granted a protection visa. The applicant was asked to advise the Tribunal if the information before it was incorrect. The applicant was advised that if he did not contact the Tribunal within a specified period the Tribunal may finalise the matter without contacting him again. No response has been received to that letter. There is no information before the Tribunal as to the circumstances of the applicant's departure, or whether he intends to return to Australia.
Section 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 to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol". The effect of this provision is that a protection visa may only be granted if the applicant is in Australia.
The Tribunal is satisfied from the circumstances set out above that the applicant is not in Australia and has therefore proceeded to make its decision on the basis that the applicant does not satisfy the requirements of s.36(2) of the Act, and cannot be granted a protection visa.
Having reached this conclusion, it is not necessary to consider whether the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The Tribunal affirms the decision not to grant a protection visa.
The Tribunal affirms the decision not to grant a protection visa.