N94/02713 [1998] RRTA 4133 (3 September 1998)

The applicant, who is a citizen of China (prc), arrived in Australia in 1991. On 5 November 1993 he applied to the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 (the Act). On 24 December 1993 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa and on 21 January 1994 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.

On 30 January 1995 the Tribunal wrote to the applicant advising that it had considered all the papers relating to this application but it was unable to make a favourable decision on that information alone. The applicant was invited to give oral evidence before the Tribunal on 7 March 1995. The applicant was advised that, if he did not contact the Tribunal within a specified period, the hearing would not take place and a decision may be made on the evidence available to the Tribunal. The letter was sent to the applicant at his address for service, in accordance with the regulations. A copy was also sent to his adviser. No response has been received and the applicant did not attend the scheduled hearing. In these circumstances I am satisfied that the Tribunal has discharged its obligation to provide the applicant with the opportunity to give oral evidence before it and that he has effectively declined that opportunity.

The department's movements records, last checked on 3 September 1998, indicate that the applicant is not in Australia. It appears that he has been outside Australia since 1995. On 7 July 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.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.