2209004 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The dispute arose because the applicant was no longer in Australia and did not hold a visa that would permit their return, 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 absence from Australia and lack of a return visa.

The Tribunal reasoned that a protection visa can only be granted to an applicant who is in Australia. Movement records indicated the applicant had left Australia in October 2023 and did not hold a visa allowing re-entry. The Tribunal had invited the applicant to comment on this information under section 424A of the *Migration Act 1958* (Cth), but no response was received. Consequently, the Tribunal concluded it was appropriate to make a decision without a hearing. As the applicant was not in Australia, they did not satisfy the criterion under section 36(2) and therefore could not be granted a protection visa. 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.