1732283 (Refugee)

The Administrative Appeals Tribunal considered an application for a protection visa made by a non-citizen. The applicant had previously departed Australia, and the decision under review was an affirmation of a decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant met the criterion for a protection visa that they must be a non-citizen *in Australia*. The Tribunal also considered whether it was necessary to assess the applicant's substantive claims for protection given their absence from Australia.

The Tribunal reasoned that section 36(2) of the *Migration Act 1958* (Cth) mandates that an applicant for a protection visa must be in Australia. Movement records indicated the applicant had left Australia in February 2022. 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 prescribed criteria for the grant of a protection visa. As this threshold criterion was not met, the Tribunal determined it was unnecessary to consider the applicant's substantive claims for protection.

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