2013899 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from India. The applicant had departed Australia, and the Tribunal had invited them to comment on information indicating their absence from the country. No response was received from the applicant by the specified deadline.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that the applicant must be a non-citizen present in Australia. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given their absence.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) mandates that an applicant for a protection visa must be in Australia. Movement records indicated the applicant had left Australia in April 2021. Despite being notified of this information and invited to provide comment, the applicant failed to respond. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the criterion under section 36(2). As this essential criterion was not met, the Tribunal concluded it was unnecessary to consider the applicant's substantive claims for protection.

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