1609455 (Refugee)

This matter concerned an application for a Protection visa by an applicant from India. The dispute arose when the Department of Immigration's records indicated that the applicant had departed Australia, rendering them ineligible for a Protection visa. The decision was made by the Refugee Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a Protection visa, specifically the requirement that the applicant be a non-citizen *in* Australia at the time of the decision.

The Tribunal reasoned that under section 36(2) of the *Migration Act 1958* (Cth), a criterion for a Protection visa is that the applicant must be in Australia. The Department's movement records indicated the applicant had departed Australia in April 2017. In accordance with principles of natural justice, the Tribunal notified the applicant of this information and invited comment, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the statutory requirement. The Tribunal concluded 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.