1720325 (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 of being a non-citizen *in* Australia for the purposes of section 36(2) of the *Migration Act 1958* (Cth), which is a prescribed criterion for the grant of a protection visa.

The Tribunal reasoned that section 65(1) of the *Migration Act 1958* (Cth) mandates that a visa may only be granted if the prescribed criteria are satisfied. It noted that section 36(2) specifically requires an applicant for a protection visa to be a non-citizen in Australia. Movement records indicated the applicant had departed Australia in September 2019. The Tribunal communicated this information to the applicant 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).

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