2104962 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from India. The applicant had departed Australia, and the Tribunal sought to ascertain their current location to determine eligibility for the visa.

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 *Migration Act 1958* (Cth) that an applicant must be a non-citizen in Australia. The Tribunal also had to consider whether it was necessary to assess the applicant's substantive claims for protection given their absence from Australia.

The Tribunal noted that movement records indicated the applicant had left Australia in April 2022. Consequently, the Tribunal wrote to the applicant, informing them of this information and inviting a response by 2 March 2023. As the applicant did not respond to this invitation, the Tribunal was satisfied that the applicant was not in Australia. Applying section 36(2) of the *Migration Act 1958* (Cth), the Tribunal concluded that the applicant could not satisfy the criteria for a protection visa. Having determined that the applicant was not in Australia, 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.