1613632 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically the requirement of being physically present in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion under section 36(2) of the *Migration Act 1958* (Cth) that a protection visa applicant must be a non-citizen in Australia. This also involved determining whether the Tribunal was obliged to hold a hearing under section 425(1) of the Act, or if that obligation was dispensed with under section 425(2)(c) read with section 424C(2).

The Tribunal reasoned that movement records indicated the applicant had left Australia in February 2020 and had not returned. Consequently, the applicant did not meet the criterion of being in Australia, which is a prerequisite for the grant of a protection visa under section 36(2). The Tribunal had notified the applicant of this information and invited a response, but no response was received. This failure to respond meant that the Tribunal was empowered to make a decision without further action and was not required to invite the applicant to a hearing, as per section 424C(2). As the applicant was not in Australia, the Tribunal concluded that it was unnecessary to consider the substantive claims for protection.

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