1801703 (Refugee)

This matter concerned an application for a protection visa by a non-citizen who had left Australia. The Administrative Appeals Tribunal, constituted by Member David McCulloch, was required to determine whether the applicant met the criteria for the grant of a protection visa.

The central legal issue before the Tribunal was whether the applicant satisfied the criterion that they be a non-citizen *in Australia* at the time of the decision, as stipulated by section 36(2) of the relevant Act. This criterion is a prerequisite for the grant of a protection visa under section 65(1) of the Act.

The Tribunal reasoned that section 36(2) of the Act mandates that an applicant for a protection visa must be physically present in Australia. Evidence from movement records indicated that the applicant had departed Australia in October 2019. 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 under section 36(2). As a result, it was unnecessary for the Tribunal to consider the substantive grounds of the applicant's protection claims. The Tribunal affirmed the decision not to grant the protection visa.