1716297 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made 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, having left Australia, could satisfy the criterion that they be a non-citizen *in* Australia for the purposes of section 36(2) of the *Migration Act 1958* (Cth). This section stipulates that a protection visa may only be granted if the applicant is physically present within Australia.

The Tribunal reasoned that movement records indicated the applicant had departed Australia in June 2019. Despite being notified of this information and invited to comment, the applicant did not respond. Consequently, the Tribunal was satisfied that the applicant was not in Australia and therefore did not meet the essential criterion under section 36(2) of the Act. As this criterion was not met, the Tribunal concluded it was unnecessary to consider the substantive claims for protection. The Tribunal affirmed the decision not to grant the protection visa.