2102429 (Refugee)

The Administrative Appeals Tribunal reviewed a decision concerning an application for a protection visa made by a non-citizen who was not in Australia. The applicant sought review of the decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant met the eligibility criteria for a protection visa, specifically the requirement that the applicant must be a non-citizen in Australia. The Tribunal also considered whether it was appropriate to make a decision without inviting the applicant to a hearing, given their absence from Australia and lack of response to the Tribunal's inquiries.

The Tribunal's reasoning was grounded in section 36(2) of the *Migration Act 1958* (Cth), which stipulates that a protection visa can only be granted if the applicant is in Australia. Movement records indicated the applicant had departed Australia in October 2023 and had not responded to the Tribunal's invitation to comment on this information. Applying section 424A of the Act, the Tribunal was empowered to make a decision without a hearing due to the applicant's failure to respond. As the applicant was outside Australia, they did not satisfy the criterion under section 36(2), rendering them ineligible for a protection visa. Consequently, the Tribunal found it unnecessary to consider the substantive grounds of the protection claim.

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