2209271 (Refugee)

The Administrative Appeals Tribunal (AAT) considered a protection visa application made by an applicant who had departed Australia. The dispute arose because movement records indicated 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 must be a non-citizen in Australia to be granted a protection visa. A secondary issue was whether it was appropriate to make a decision without inviting the applicant to a hearing, given their failure to respond to an invitation to comment on the information suggesting they were outside Australia.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. As movement records showed the applicant had left Australia and did not hold a return visa, they were not in Australia and therefore could not satisfy this essential criterion. 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.

The Tribunal affirmed the decision not to grant the applicant a protection visa, as the applicant did not satisfy the requirement of being in Australia. It was therefore unnecessary to consider the substantive grounds of the protection claim.