2102593 (Refugee)

The Administrative Appeals Tribunal reviewed a decision concerning an applicant for a protection visa who had departed Australia. The applicant, an Indian national, sought protection in Australia but had left the country in August 2023.

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 the applicant must be a non-citizen in Australia. The Tribunal also considered its procedural obligations, including whether it was necessary to hold a hearing given the applicant's absence from Australia.

The Tribunal reasoned that a protection visa can only be granted to an applicant who is physically present in Australia. Movement records indicated the applicant had left Australia and had no visa to return. The Tribunal had notified the applicant of this information and invited comment, but the applicant did not respond. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the fundamental criterion for a protection visa. The Tribunal concluded that it was appropriate to make a decision without a hearing, as the applicant's absence from Australia rendered the substantive claims for protection irrelevant to the visa grant.

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