1707748 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had left Australia. The Tribunal, constituted by Brendan Darcy, was tasked with determining whether the applicant met the criteria for the visa.

The central legal issue before the Tribunal was whether the applicant satisfied the criterion that they must be a non-citizen in Australia at the time of the decision, as stipulated by section 36(2) of the *Migration Act 1958* (Cth). This requirement is a prerequisite for the grant of a protection visa under section 65(1) of the Act.

The Tribunal's reasoning focused on the applicant's presence in Australia. Movement records indicated that the applicant had departed Australia in November 2018. The Tribunal notified the applicant of this information and invited comment, but no response was received. 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 essential criterion was not met, the Tribunal concluded 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.