1716376 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The core of the dispute was whether the applicant met the eligibility criteria for the visa, specifically the requirement of being physically present within Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion stipulated in section 36(2) of the *Migration Act 1958* (Cth), which requires an applicant for a protection visa to be a non-citizen *in Australia*. The Tribunal also had to determine if the applicant's departure from Australia rendered them ineligible for the visa.

The Tribunal reasoned that a protection visa can only be granted if the applicant is in Australia, as mandated by section 36(2) of the Act. Movement records indicated that the applicant had left Australia in January 2021. 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 essential criterion for a protection visa. As this fundamental requirement was not met, the Tribunal found it unnecessary to consider the substantive grounds of the applicant's claim for protection.

The Tribunal affirmed the decision not to grant the applicant a protection visa.