2102922 (Refugee)

The Administrative Appeals Tribunal considered a protection visa application made by an applicant who had departed Australia. The dispute arose because movement records indicated the applicant was no longer in Australia, which is a prerequisite for being granted a protection visa.

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 they be a non-citizen in Australia. The Tribunal also had to determine whether it was appropriate to make a decision without inviting the applicant to a hearing, given their failure to respond to an invitation to comment.

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) requires a decision-maker to be satisfied that prescribed criteria for a visa have been met. As the applicant was outside Australia, they did not meet the criterion under section 36(2). The Tribunal had invited the applicant to comment on the information that they had departed Australia, but received no response. Pursuant to section 424A of the *Migration Act 1958* (Cth), the Tribunal was entitled to make a decision without inviting the applicant to a hearing in these circumstances. Consequently, the Tribunal found it unnecessary to consider the substantive grounds of the applicant's protection claim.

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