1801531 (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 criteria for the visa, specifically the requirement of being present in Australia.

The primary legal issue before the Tribunal was whether the applicant satisfied the criterion under section 36(2) of the *Migration Act 1958* (Cth) that a protection visa applicant must be a non-citizen in Australia. This required the Tribunal to determine the applicant's location at the time of the decision.

The Tribunal reasoned that a protection visa can only be granted if the applicant is physically in Australia, as stipulated by section 36(2) of the Act. Movement records indicated that the applicant had left Australia in November 2019. The Tribunal communicated this information to the applicant, inviting comment, but received no response. Based on the available evidence and the lack of response, the Tribunal was satisfied that the applicant was no longer in Australia. Consequently, the applicant failed to meet the essential criterion for a protection visa.

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