1721429 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by an applicant who had departed Australia. The dispute concerned whether the applicant met the criteria for the grant of a protection visa, specifically the requirement of being in 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 was also required 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 physically present in Australia, as mandated by section 36(2) of the Act. Departmental records indicated that the applicant was no longer in Australia. 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. The Tribunal concluded that it was unnecessary to consider the substantive grounds of the applicant's protection claim.

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