1716584 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The dispute centred on whether the applicant met the eligibility criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant, having left Australia, satisfied the requirement under section 36(2) of the *Migration Act 1958* (Cth) that a protection visa applicant must be a non-citizen *in* Australia.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically present in Australia. Movement records indicated that the applicant had departed Australia in December 2019. The Tribunal notified the applicant of this information and invited comment, but remained satisfied that the applicant was no longer in Australia. Consequently, the Tribunal concluded that the applicant did not satisfy the criterion under section 36(2) and therefore could not be granted a protection visa. It was not necessary for the Tribunal to consider the substantive grounds of the applicant's protection claim.

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