1610087 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa by an applicant who had departed Australia. The Tribunal was required to determine whether the applicant met the criteria for the grant of a protection visa.

The central legal issue before the Tribunal was whether the applicant, who had left Australia, satisfied the requirement of being a non-citizen *in* Australia, as stipulated by section 36(2) of the *Migration Act 1958* (Cth) for the grant of a protection visa.

The Tribunal reasoned that section 65(1) of the Act mandates that a visa can only be granted if prescribed criteria are satisfied, and section 36(2) specifically requires the applicant to be in Australia. Movement records indicated the applicant had departed Australia in August 2018. The Tribunal notified the applicant of this information and invited comment, but received no response. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the criterion under section 36(2). As this criterion was not met, the Tribunal concluded it was unnecessary to consider the applicant's substantive claims for protection. The Tribunal affirmed the decision not to grant the protection visa.