2109376 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant from India who was not in Australia. The dispute concerned the applicant's eligibility for a protection visa given their location outside the migration zone.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically the requirement that an applicant must be a non-citizen in Australia. The Tribunal also considered whether it was necessary to assess the substantive claims for protection if the applicant did not meet this threshold criterion.

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 the applicant had departed Australia in October 2023. Despite being notified of this information and invited to comment, the applicant did not respond. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion for a protection visa. The Tribunal concluded that it was unnecessary to consider the applicant's substantive claims for protection.

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