2102528 (Refugee)

The applicant, an individual from India, sought a protection visa. The dispute arose when the Tribunal, after reviewing movement records, determined that the applicant had departed Australia in April 2022. Consequently, the Tribunal invited the applicant to comment on this information, setting a deadline of 1 March 2023 for a response. The applicant failed to provide any communication to the Tribunal by the specified date or thereafter.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement under section 36(2) of the Act that an applicant for such a visa must be a non-citizen in Australia. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given the preliminary finding regarding their location.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. As the movement records indicated the applicant had left Australia, and no response was received from the applicant to challenge this information, the Tribunal was satisfied that the applicant did not meet the criterion of being in Australia. Therefore, the Tribunal concluded that it was not necessary to consider the substantive grounds of the applicant's protection claim.

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