2104534 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from India. The dispute arose because the applicant had left Australia, and the Tribunal was therefore unable to grant the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion for a protection visa that they 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 their absence from Australia.

The Tribunal reasoned that under section 36(2) of the *Migration Act 1958* (Cth), a protection visa can only be granted if the applicant is in Australia. Movement records indicated that the applicant had departed Australia in October 2021. The Tribunal attempted to contact the applicant via email to invite comment on this information, but the email was returned as undeliverable. Based on these circumstances, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the requirements of section 36(2). Consequently, the Tribunal found it unnecessary to consider the applicant's substantive claims for protection.

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