2201723 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant from Bangladesh. The applicant was not in Australia at the time of the Tribunal's decision, having departed the migration zone in September 2023. The Tribunal's decision under review was to affirm the refusal of the protection visa.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a protection visa, specifically the requirement that the applicant be a non-citizen in Australia. The Tribunal also considered whether it was appropriate to proceed to a decision based on available information, given the applicant's absence from Australia and lack of response to a request for comment.

The Tribunal reasoned that under section 36(2) of the *Migration Act 1958* (Cth), a criterion for a protection visa is that the applicant must be in Australia. Movement records indicated the applicant had departed Australia. The Tribunal notified the applicant of this information and invited a response, but no response was received. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the threshold requirement for a protection visa. The Tribunal concluded that it was unnecessary to consider the substantive grounds of the protection claim.

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